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This is not the full Record of Trial, but rather a draft copy that Penland released to the media. The full record of trial is contained in seven volumes within this document collection.Navy Supply Officer Syneeda Penland, who was not married, had an affair with another Navy Officer, LTJG Mark Wiggan, who was married. LCDR Penland repeatedly harassed Wiggan’s wife, who was an active duty enlisted Petty Officer, and emailed her sexually explicit photos to expedite the breakup of the Wiggan marriage. After the Commanding Officers of two ships complained that Penland was causing significant problems on their ships, she was charged with several violations of the Uniform Code of Military Justice. Penland refused Non Judicial Punishment and was Court Martialed.Penland was found guilty of numerous charges that were primarily centered on her abusing her position as an Officer to intimidate the enlisted wife of her lover. She was sentenced to 60 days confinement n the brig, and fined $9,000. She would be later administratively separated from the Navy. Although Penland would later claim the court martial was centered on the adultery charge, the primary violation, in the eyes of the jury, was that of an Officer abusing her authority and harassing the junior enlisted wife.During the time leading to her Court Martial, Penland filed innumerous sexual harassment complaints and equal opportunity violation reports at every possible level of the Inspector General community. They were not substantiated. In a desperate attempt to draw attention from her indiscretions, she alleged over a dozen contracting violations concerning minor government purchases. Three of these allegations were in fact substantiated. However, they were minor administrative and procedural errors that caused no fraud or loss to the Government of any actual money. Penland then proceed to blame the entire episode of her courts martial conviction on a theory that the entire case against her was fabricated to cover up these administrative contracting errors.Over the months and years to follow, Penland would demonstrate once and again that if you make a hoax look and sound plausible enough, a lot of people will believe you. You must know how to play on fears and prejudices, to exploit motives and limitations. Penland was adept at this. She took naturally to fraud because her mind had difficulty distinguishing reality from delusion and right from wrong. The deliberate lie blurred into the unconscious fantasy. The events, the chain of cause and effect that she cut from the cloth of her imagination, became very real to her. Her narrative acquired an inner logic that was convincing unless you examine the hundreds of pages of investigation documents and courts martial proceedings. Most of those who accepted Penland’s version of the events, particularly those who publicized it, never took the precaution of seeking out these doccuments. They took what Penland told them at face value. In the final analysis, Penland was a woman who used sex as a manipulative tool, and a person who attempted to manipulate the Navy and DoD Inspector General to exonerate her behavior. We present you with the full public record, such that we can gather, of this twisted tale of lies and deception. While Penland continues to paint herself as the victim, if you take the time to examine the true records of facts in this case, you will come to realize the real victims are those that had the unfortunate experience to serve with Penland and suffer as the targets of her manipulations and false accusations.
Citation preview
VERBATIM RECORD OF TRIAL OF PENLAND SYNEEDA L. LCDR / O-4 (LAST NAME) (FIRST) (MIDDLE) (SSN) (RANK/RATE) UNITED STATES NAVY NAVAL COASTAL WARFARE GROUP ONE (ARMED FORCE) (UNIT or ORGANIZATION) BY GENERAL COURT-MARTIAL CONVENED BY COMMANDER NAVY REGION SOUTHWEST SAN DIEGO, CALIFORNIA 92132-0058 TRIED AT WESTERN JUDICIAL CIRCUIT COURTHOUSE NAVAL BASE, SAN DIEGO, CALIFORNIA 92136-5025 ON 22 JANUARY 2008 22 FEBRUARY 2008 10, 23 APRIL 2008 14, 19, 21, 22, 23, 24 MAY 2008
ENCL (2)
INDEX Introduction of counsel . . . . . . . . . . . 3, 25, 266 Challenges . . . . . . . . . . . . . . . . . . . . . 594 Arraignment . . . . . . . . . . . . . . . . . . . . . 34 Motions . . . . . 35, 43, 50, 52, 150, 155, 165, 168, 185 219, 226, 585, 594, 608, 660, 663, 664, 952 Pleas . . . . . . . . . . . . . . . . . . . . . . . . 213 Findings . . . . . . . . . . . . . . . . . . . . . . 946 Sentence . . . . . . . . . . . . . . . . . . . . . 1007 T E S T I M O N Y Direct Cross Name of Witness Redirect Recross Court Motions: LCDR Syneeda L. Penland 44, 102 74 98 CAPT John Sturges, III (RET) 104, 119 115, 120 -- LCDR Mei Ling A. Marshall 122 142 -- LCDR Syneeda L. Penland 186 -- 189 Prosecution case-in-chief: PS1 Jeffrey Crawford 376 -- 378 SKC Stacy L. Zogaib 379, 385 384, 386 -- Brian Duffy 387 396 -- CDR Brendon X. Doud 399 -- -- PS1 Cheston A. Lee 418, 427 424 426 CDR Matthew J. Masi 428, 433 432, 434 -- LCDR Kristen McCarthy 438, 444 442 -- CAPT John Sturges, III (RET) 453, 461 457, 463 462 LCDR Thomas P. Moninger 464 476 -- NCC Kimberly Lewis-Wiggan 478, 581 576, 582 -- Brian Duffy 632, 649 646 -- NCC Kimberly Lewis-Wiggan 650 656 -- Defense case-in-chief: LTJG Mark Wiggan 673,731,737,741 681,735,739,742 738, 741 CDR Larry D. Milner 744, 756 747 -- CAPT Michael H. Johnson 757 761 -- CAPT Jack S. Noel, II 765, 774 770 -- Steven H. Arnold 776, 785 781, 787 786 PS1 Cheston A. Lee 788, 790 789 --
T E S T I M O N Y [CONTINUED] Direct Cross Name of Witness Redirect Recross Court Prosecution case-in-rebuttal: SKC Stacy L. Zogaib 797, 802 801 -- CDR Matthew J. Masi 803, 808 806, 810 809 LCDR Thomas P. Moninger 811, 820 818, 820 -- Defense case-in-surrebuttal: [None] Prosecution case-in-sentencing: NCC Kimberly Lewis-Wiggan 964 -- -- Defense case-in-sentencing: CDR Larry D. Milner 974 979 -- E X H I B I T S Number/ Letter Description Offered Received PE 1 Printout (2 pages) of thumbnail images (52) recovered from LTJG Wiggan's computer 542 558 PE 2 52 8" x 11" color printouts of above thumbnail images 542 558 PE 3 Gov't cell phone records for LCDR Penland, (619) 921-5073, SEP 23 '06 to FEB 23 '07 382 383 PE 4 PE 3 sorted by phone number -- -- PE 5 Home phone records for LCDR Penland, (619) 271-7954, DEC '06 to MAR '07 390 391 PE 6 E-mail from "the other woman," 26 SEP '06, Subject: MAKING CONTACT 491 492 PE 7 E-mail from "the other woman," 28 SEP '06, Subject: Pics 496 496 PE 8 8" x 11" printouts of 2 attached PowerPoint files to the 28 SEP E-mail 498 498 PE 9 Screen shot printout of properties field for 2 photos referenced in PE 6, showing the author as "Syneeda Penland" 502 503 PE 10 E-mail from LCDR Penland to ENS Wiggan, 29 SEP '06, Subject: RE: LET'S SAY 510 511 PE 11 Word document attached to E-mail referenced in PE 10 512 512
E X H I B I T S [CONTINUED] Number/ Letter Description Offered Received PE 12 Screen shot printout of properties field for Word document referenced in PE 11, showing the author as "Syneeda Penland" 645 646 PE 13 E-mail from "the other woman," 23 DEC '06, Subject: TRUTH 524 524 PE 14 E-mail from "the other woman," 24 DEC '06, Subject: RE: TRUTH 527 527 PE 15 E-mail from "the other woman," 1 JAN '07, Subject: RE: TRUTH 531 531 PE 16 E-mail from Syneeda Penland, 5 JAN '07, Subject: Hang in there 533 534 PE 17 E-mail from LCDR Syneeda Penland, 23 FEB '07, Subject: PERSONAL BELONGINGS 474 475 PE 18 Sprint phone records for Syneeda Penland from 1 to 28 FEB '07 for (619) 862-1559 394 394 PE 19 E-mail from Dread to Syneeda Penland, 3 JAN '07, Subject: Re: 536 536 PE 20 Military protective order dated 9 JAN '07 440 440 PE 21 E-mail from [email protected], 16 DEC '06, Subject: FW: Hey 651 651 PE 22 Word document attached to E-mail in PE 21, "I wanted to send you a few words" 653 653 PE 23 Certification of marriage, dated 16 MAR '01 481 481 PE 24 Continued Sprint cell phone records for (757) 822-3579 634 635 PE 25 Continued Sprint cell phone records for (619) 862-1134 634 635 PE 26 Personal Data Sheet 982 982 DE A FITREPs, evaluations, LOR and diploma 982 983 AE I Motion for docketing -- AE II Grant of immunity and order to testify to LTJG Wiggan, USN, dated 1-14-08 24 AE III Deposition order to LTJG Wiggan, USN, 1-14-08 24 AE IV Letter 5813 Ser No. OJA/028, 17 JAN '08, Subject: Appt. as Deposition Officer ICO U.S. v. Penland, SC, USN 25 AE V Letter, 14 FEB '08, Excusal of detailed counsel, LT Head 32 AE VI Defense motion to dismiss, 4 APR '08, w/attachments, unlawful command influence and Article 32 improperly convened 42 AE VII Defense motion to suppress statements made by LCDR Penland to CAPT Sturges, with attachment PIO, 7 MAR '06 41 AE VIII Defense motion for appropriate relief, compel production of verbatim Article 32 transcript 42
E X H I B I T S [CONTINUED] Number/ Letter Description Received AE IX Defense motion to dismiss per R.C.M. 707, speedy trial requirements 42 AE X Defense motion to dismiss pursuant to R.C.M. 907 and 707, docketing invalid and speedy trial requirements, with E-mail attachments 42 AE XI Gov't response to AE VI, motion to dismiss based on unlawful command influence 42 AE XII Gov't response to AE VII, Defense motion to suppress 41 AE XIII Gov't response to AE VIII, Defense motion to compel production of Article 32 transcript 42 AE XIV Gov't response to AE IX, Defense motion to dismiss based on failure to comply with R.C.M. 707 42 AE XV Gov't response to AE X, Defense motion to dismiss based on invalid motion for docketing 42 AE XVI Notes from Military Judge's file IRG to 802 conference held on 7 NOV '07 177 AE XVII E-mail dated 4/18/08, MJ's ruling on motions to suppress; motion to dismiss pursuant to R.C.M. 707 speedy trial; unlawful command influence; and compel production of Article 32 transcript 178 AE XVIII E-mail dated 4/23/08, MJ's ruling on motion re Article 32 improperly convened 178 AE XIX Defense motion for continuance, 12 MAY '08 184 AE XX Gov't response to AE XIX, motion for continuance, with attachment, 13 MAY '08 184 AE XXI Grant of immunity and order to testify, U.S. v. Penland, 6 MAY '08 206 AE XXII Members' questionnaires (10) 242 AE XXIII Gov't response to Defense request for continuance from 5/18/08 215 AE XXIV Gov't response to MJ's questions about charges 227 AE XXV Defense response to motion to amend charges 216 AE XXVI Gov't supplemental response regarding changes to charge sheet 215 AE XXVII Gov't motion to amend charges 215 AE XXVIII Gov't request for judicial notice 216 AE XXIX Defense witness list 216 AE XXX Defense proposed voir dire 216 AE XXXI Government witness list 216 AE XXXII Government proposed voir dire 216 AE XXXIII Defense motion for continuance, 5/16/08 E-mail 215 AE XXXIV MJ's response to Gov't motion to amend charge sheet 255 AE XXXV Time line, opening statement Gov't demonstrative aid 257 AE XXXVI Cleansed charge sheet 256 AE XXXVII Gov't request for judicial notice 259 AE XXXVIII PSD document on LCDR Penland 377 AE XXXIX Question by member, CDR Kelsch 425 AE XL Question by member, CDR Tucker 425
E X H I B I T S [CONTINUED] Number/ Letter Description Received AE XLI Question by member, CDR Good 462 AE XLII Medical document on LCDR Penland 589 AE XLIII Mr. Duffy's notes 641 AE XLIV Question by member, CDR Galvez 737 AE XLV Question by member, CDR Good 737 AE XLVI Question by member, CDR Good 737 AE XLVII Question by member, CAPT Booker 740 AE XLVIII Question by member, CDR Grundy 786 AE XLIX Question by member, CDR Kelsch 786 AE L Instructions on proposed findings 825 AE LI Question by member, CAPT Booker 809 AE LII Findings worksheet 847 AE LIII Instructions on findings, first revision 833 AE LIV Instructions on findings, second revision 848 AE LV Instructions on findings, final draft 852 AE LVI Question by senior member, CAPT Gentile 906 AE LVII Question by member, CDR Grundy 932 AE LVIII Question from members (findings deliberations) 936 AE LIX Question from members (post-findings) 948 AE LX Question from members (post-findings) 948 AE LXI Sentencing worksheet 951 AE LXII First draft Sentencing Instructions 951 AE LXIII Second draft Sentencing Instructions 983 AE LXIV Final draft Sentencing Instructions 993 AE LXV Appellate and post-trial rights statement 1010
COPIES OF RECORD One copy of the record of trial furnished to the accused as per the attached certificate of receipt. * * * * * * * * * * CERTIFICATE OF RECEIPT
I hereby acknowledge receipt of a copy of the record of trial in the
case of the UNITED STATES v. LCDR SYNEEDA L. PENLAND, U.S. NAVY,
delivered at the Naval Legal Service Office Southwest, Naval Base, San
Diego, California, on this __________ day of _________________, 2008. ________________________________ P. J. CALLAHAN CAPT, JAGC, USMC Individual Military Counsel
CERTIFICATE IN THE CASE OF UNITED STATES v. LCDR SYNEEDA L. PENLAND The accused's individual military counsel was served accused's copy of the record because: [*] The accused so requested in a written request, which is attached. [*] The accused so requested on record at the court-martial. [ ] The accused was transferred to ___________________________. [ ] The accused was absent without authority. [ ] The accused was sent on appellate leave. DATE: ____________________ _____________________________ K. W. MESSER LCDR, JAGC, USN Trial Counsel
1
PROCEEDINGS OF A GENERAL COURT-MARTIAL
[The military judge called the Article 39(a) session to order at
Western Judicial Circuit Courthouse, Naval Base, San Diego,
California, at 0825 hours, 22 January 2008, pursuant to the following
orders:]
[General Court-Martial Convening Order Number 03-07, Department of the
Navy, Commander Navy Region Southwest, 937 North Harbor Drive, San
Diego, California 92132-0058, dated 6 November 2007; as amended by
General Court-Martial Amending Order 03A-07, dated 14 May 2008, and
General Court-Martial Amending Order 03B-07, dated 20 May 2008.]
[END OF PAGE]
2
MJ: Good morning. This general court-martial is called to order
in the case of the United States v. Lieutenant Commander Penland,
United States Navy.
Commander Messer?
TC: This court is convened by Commander Navy Region Southwest,
by General Court-Martial Convening Order 03-07, dated 6 November 2007,
a copy of which has been furnished to the military judge, defense
counsel, accused, and court reporter for insertion in the record of
trial. There are no modifications or corrections to the convening
order.
The general nature of the charges in this case are
violations of Uniform Code of Military Justice, Articles 92, 107, 133
and 134.
The charges were preferred by LN2 Saniya Solis, United
States Navy, a person subject to the Uniform Code of Military Justice,
sworn to before an officer authorized to administer oaths, and have
been properly referred to this court-martial for trial by Commander
Navy Region Southwest, the Convening Authority.
The charges have not been referred to any court other than
that reflected on the referral block of the charge sheet.
The charge sheet was served on the accused on 5 June 2007
[sic]. The five-day waiting period has expired.
The accused and the following persons detailed to this
court-martial are present:
3
COMMANDER R. W. REDCLIFF, JAGC, U.S. NAVY, MILITARY JUDGE;
LIEUTENANT COMMANDER K. W. MESSER, JAGC, U.S. NAVY, TRIAL
COUNSEL; and
LIEUTENANT J. W. HEAD, JAGC, U.S. NAVY, DEFENSE COUNSEL.
The members are absent.
Ms. Terri Dixon has been detailed as court reporter for
this court-martial and has previously been sworn.
I have been detailed to this court-martial by myself,
through the authority delegated to me by Commanding Officer, Region
Legal Service Southwest.
I am qualified and certified under Article 27(b) and sworn
under Article 42(a) of the Uniform Code of Military Justice. I have
not acted in any manner that might tend to disqualify me in this
court-martial.
MJ: Thank you, Lieutenant Commander Messer.
Lieutenant Head, if you would please state for the record
by whom you have been detailed, your legal qualifications and status
as to oath, and whether you have acted in any disqualifying capacity.
DC: Sir, I have been detailed to this court-martial by the
Senior Defense Counsel, NLSO Northwest, through the power delegated to
her by the Commanding Officer, NLSO Northwest.
I am qualified and certified under 27(b) and sworn under
Article 42(a). I have not acted in any manner which might tend to
disqualify me in this court-martial.
4
MJ: And would you also explain for the record, please, the
detailing by the military defense counsel.
DC: Sir, at this point I am--I have relieved Lieutenant Ben
Robertson, also from the NLSO Northwest. I was detailed to this case
on 7 January of 2008.
As I understand it at this time, Lieutenant Commander
Penland would like to seek a different military counsel, as well as,
she is in the process of hiring a civilian attorney to represent her
at the court-martial.
MJ: Thank you. And we'll discuss counsel rights in a moment.
With regard to Lieutenant Robertson, was he detailed by the
same authority and did he possess the same qualifications as you?
DC: He did, sir.
MJ: And did you receive passdown for him prior to being--I
guess prior to your assumption of these duties?
DC: Yes, sir, I did.
MJ: Very well. What is the status with regard to the civilian
counsel, Mr. Blevins, if you know?
DC: Sir, I believe at this time Mr. Blevins has been relieved
of his duties and is no longer in an attorney/client relationship with
Lieutenant Commander Penland.
MJ: Thank you. And the last question for you at this time:
DC: Yes, sir.
MJ: Has there been a request for individual military counsel?
5
DC: None has been made, as I understand it in any formal
capacity, but that is the intention of Lieutenant Commander Penland.
MJ: Very well. Are you, in fact, Lieutenant Commander Penland,
United States Navy?
ACC: [Rising.] Yes, sir, I am.
MJ: Thank you for your courtesy in rising, Commander Penland.
You may be seated during these proceedings.
[The accused did as directed.]
MJ: Lieutenant Head, is your client attired in the appropriate
uniform, with all the awards and decorations she's entitled to wear?
DC: Yes, sir, I believe that she is, although at this time I am
not prepared to read her ribbons into the record.
MJ: Very well. We can do that at another time.
DC: Thank you, sir.
MJ: Lieutenant Commander Penland, we're going to discuss a
number of important matters this morning. If you have questions, you
want to discuss any matter with your defense attorney, let me know and
I'll be certainly glad to give you time to do that today.
Do you understand?
ACC: Yes, sir.
MJ: Okay. I want to talk to you about your rights to defense
counsel. You apparently have some--I guess some concerns with regard
to the defense counsel that have been assigned to you, so I want to
explain your rights fully.
6
You have the right to be represented by your military
defense counsel, at least in this instance Lieutenant Head. He's been
detailed to represent you. Military defense counsel represent you
free of charge.
You also may request to be represented by military defense
counsel of your own choice, provided the counsel you request is
determined to be reasonably available.
Do you understand that?
ACC: Yes, sir.
MJ: If you are represented by military defense counsel of your
own choice, then normally your detailed defense counsel would be
excused. However, you could request that Lieutenant Head continue to
represent you along with any military defense counsel you've
personally selected, and his detailing authority would have the sole
discretion to grant or deny such a request.
Do you understand that process?
ACC: Sir, I guess I'm a little confused with Lieutenant Head's
appointment to represent me, in accordance he has a letter that states
an Article 32 hearing and we previously held an Article 32 hearing
back in August. So I guess, as the record states, that he is not here
to represent me during this arraignment.
MJ: Lieutenant Head?
DC: Sir, I have been detailed--you know, permitted to form an
attorney/client relationship for the remainder of the charges facing
general court-martial.
7
MJ: Very well. And your senior defense counsel has properly
assigned you to this case for that purpose?
DC: She has. What Lieutenant Commander Penland is referring to
is the original letter dated 7 January. It says, as subject matter,
"Reassignment of Military Defense Counsel for Article 32 Investigation
in the Case of Lieutenant Commander Syneeda Penland, U.S. Navy." The
letter was supposed to say "For the Charges facing General Court-
Martial" because the Article 32 has already taken place at this time.
MJ: So was that an administrative error then with regard to the
letter?
DC: Yes, sir, it was an administrative error.
MJ: Okay.
ACC: Sir, I don't believe that there was an administrative error
because I received correspondence from my chain of command stating
Article 32 hearing, and I asked several times back and forth with
Captain Harr for clarification and his clarification was vague. And
when I was presented that, I also challenged it through Commander
Whitsell [ph], and I specifically asked "Is this for an Article 32
hearing" and he could not expound upon that, which is why I had to
communicate to my chain of command.
And, sir, I have reason to believe, which is why I don't
want to go forward, the tapes that were provided to me and Mr. Blevins
of the Article 32 hearing, they didn't--apparently the hearing never
recorded, and I challenged the Defense--excuse me--the prosecutor and
asked for a written transcript of that hearing because there was
8
extenuating information that states that there could have been some
evidence of wrongful command influence or either obstruction of
justice with this proceeding, sir.
MJ: Well, let's get through the counsel rights, and there's
certainly a number of issues that you have raised that can be
addressed at a later and more appropriate time in our proceeding.
Again, I want to focus on your rights to defense counsel because I
want to ensure that you have a defense attorney that you're
comfortable with and you're willing to go forward with because this
case will go to trial at some point and hopefully you will have a
Defense team that you're satisfied with at that time. Okay.
Let me talk about your civilian defense counsel rights and
then I'll ask you about your choices of counsel. You also can be
represented at this general court-martial by a civilian defense
counsel or counsels of your own choice who would represent you without
any expense to the United States.
Do you understand that?
ACC: Yes, sir.
MJ: And your civilian defense counsel could represent you alone
or along with any military defense counsel that you have.
Do you understand that?
ACC: Yes, sir.
MJ: Okay. Now let's talk about your rights to defense counsel.
Do you have any questions about those rights to counsel?
9
ACC: Yes, sir. When will I have an opportunity to submit the
request for individual defense counsel before we proceed any farther?
MJ: Well, if you'd like to request a delay in the proceedings,
we can address that in a moment.
ACC: Yes, sir.
MJ: I would encourage you to cooperate as best you can with
Lieutenant Head because he can help you with that process in terms of
requesting individual military defense counsel.
Do you have any individual counsel in mind that you'd like
to request?
ACC: I'm currently awaiting a response back from a particular
individual due to his scheduling conflicts, and I don't wish to bring
his name forward at this time.
MJ: Very well. Let me talk to you a little bit about your
civilian counsel. Apparently you had a civilian counsel, Mr. Blevins,
is that correct?
ACC: Yes, sir.
MJ: Have you released him from any further responsibility of
representing you?
ACC: I'm not sure if Mr. Blevins has submitted a substitution
for attorney through Commander Messer. I have not had an opportunity
to speak with Mr. Blevins since November.
MJ: Well, let me ask you, what is your preference? Do you
still want Mr. Blevins to represent you or have you released him?
ACC: Well, sir----
10
MJ: Those are actions that you would take.
ACC: I understand that. But there was about a two-month delay
from the time that Commander Messer has submitted paperwork to
Mr. Blevins, and at that point I notified my chain of command that I
only wanted Lieutenant Robertson to be relieved at that point, not
Mr. Blevins. But I've just received back from the Government that
they want to continue on with these proceedings just Tuesday, on the
15th. So it was about a two-month delay that I hadn't heard anything
about this case, and so I'm in the opinion that that violates my right
to a speedy trial.
MJ: Back to Mr. Blevins. Did you, in fact, release him from
representing you?
ACC: No, I did not. Officially, no, I did not.
MJ: Did he receive information concerning this arraignment
today?
ACC: No, he has not.
MJ: Commander Messer?
TC: Sir, I've been attempting to contact Mr. Blevins since
early December. I call him at least once a week, sometimes twice or
two or three times a week. He's not--never returned my phone calls.
In addition, I contacted Lieutenant Robertson, detailed
defense counsel. He relayed to me that Mr. Blevins was no longer
retained as counsel in the case. I have not heard that from
Mr. Blevins, as he will not return my phone calls, my faxes. I've
tried to communicate with him numerous times with various different
11
methods and I have not heard back from him.
MJ: Very well. Lieutenant Head, any information concerning
Mr. Blevins?
DC: No, sir, not beyond what we've heard. As I understand it,
he does not have e-mail and he can't be reached in that way.
I personally was present for a conversation between
Lieutenant Robertson and Mr. Blevins where Mr. Blevins intimated that
he had been removed, "fired" was his word, but I don't know anything
beyond that, sir. So I don't know the status of Mr. Blevins. I've
never spoken with him.
MJ: Back to you, Lieutenant Commander Penland. What is your
preference with regard to Mr. Blevins? Do you wish to still have him
participate in your defense or are you going to release him?
ACC: When I get in contact with him, I wish to have him continue
to participate in representing me.
MJ: Very well. Well, let's just discuss the remainder of the
proceedings today.
Have you had an opportunity to confer with Lieutenant Head?
ACC: No, sir, I have not.
MJ: Do you wish to confer with Lieutenant Head?
ACC: At this moment, without a proper civilian attorney to serve
as lead defense counsel, no, sir.
MJ: Very well. With regard to your military defense counsel,
have you had any contact with the individual that you were going to
request to represent you? You indicated that there was a scheduling
12
conflict with that individual. Have you had contact with the
individual to discuss this case and determine whether he or she would
be available as individual military counsel?
ACC: Well, sir, during that two-month delay, I had contacted
him, but once again I did not receive any information concerning the
scheduling of the proceedings outside of the motion for appropriate
relief, because those dates were never agreed upon.
MJ: You were not advised as to when the hearing would be--when
were you first advised that this hearing would be held today?
ACC: Last Tuesday. I was given a letter of direction by
Commander Whitsell at REDCOM Southwest, a command that I'm TAD at, and
it basically stated that I am to show up today for arraignment date--
let me get the letter so I can state it verbatim. "Assignment of
Counsel and Notice of Arraignment Date." It did not state that this
was actually an arraignment.
And also my copy of Lieutenant Head's reassignment of
military defense counsel for Article 32 investigation, and it was
presented to me on the 16th of January, which was just last Wednesday,
by Commander Whitsell, so, therefore, not affording me an opportunity
to consult with anyone concerning this.
MJ: Is it your position that you have not had an opportunity
since last Tuesday to consult with anyone when you were----
ACC: I am stating that on the record, sir.
MJ: ----notified of the hearing? I'm sorry?
13
ACC: I am stating that I have not had an opportunity to consult
with anyone concerning this because I requested deconfliction [sic] of
the e-mail and also the direction and also Lieutenant Head's
appointment letter.
TC: Sir, may I be heard?
MJ: Certainly.
TC: The accused has just stated on the record that she wishes
to be represented by Mr. Blevins. Mr. Blevins entered into a motion
for docketing with the court months ago. So for the accused to now
argue that she had no one to consult with is absolutely ludicrous.
ACC: Sir, I have not been able to contact Mr. Blevins either.
MJ: Well, it doesn't seem like anyone's been very successful in
contacting Mr. Blevins.
Let me go back then to the rights to counsel. With regard
to any defense counsel you ultimately retain, those counsel will have
to be prepared to go to trial in accordance with the schedule that
this Court sets.
Do you understand that?
ACC: Yes, sir. And will I be allowed to see the schedule?
MJ: I'm going to set the schedule----
ACC: Yes, sir.
MJ: ----momentarily. Again with that caveat in mind, I will
give you adequate time, in my mind at least, to procure at least one
defense counsel that you're satisfied with.
ACC: Yes, sir.
14
MJ: Obviously your satisfaction is a subjective, as well as an
objective standard. But with regard to the Court's schedule, the
counsel that you select should be reasonable available, obviously
within the next couple of weeks, to make an appearance here before the
Court for an arraignment.
ACC: Yes, sir.
MJ: If you are successful in communicating and retaining
Mr. Blevins for the purposes of this trial, that would be fine.
Obviously the Court will proceed whether you can communicate with him
or not. He apparently has not made himself at least readily available
to communicate with you and fulfill any obligations he may have to you
as counsel. That's a matter between you and him.
ACC: Yes, sir.
MJ: With regard to your military counsel rights, again you at
this point are represented by Lieutenant Head. He has been detailed
apparently to represent you.
If you are not satisfied with that detailing assignment,
you certainly can go to his detailing authority and request an
alternate assignment, or again you can exercise your rights to request
individual military defense counsel. Those--and those are the rights
that you have.
ACC: Yes, sir.
MJ: And then, finally, if you're not satisfied with any defense
counsel, you can represent yourself.
ACC: Yes, sir.
15
MJ: I would discourage that and there's a litany of questions I
would have to ask you, if that is your choice, but at least with
regard to this trial those are your options.
ACC: Yes, sir.
MJ: Okay. With regard to scheduling for the next session of
court, I'm not going to force this arraignment through. It does not
appear that you have had an opportunity or at least an adequate
opportunity to consult with your defense counsel.
TC: Sir, I'd ask that you reconsider that. We have given
adequate notice to the Defense in this case and because the accused
has chose not to--the reason that she's not had adequate communication
is the accused has chose not to communicate to her attorney. He's
been available for her to communicate.
So we feel that it's not--you're putting the Government in
an unfair position to not go forward with the arraignment today as
scheduled. The Government has gone to great expense to provide--to
fly Lieutenant Head down for this hearing, and just to go ahead and
continue the proceeding puts an undue burden on the Government. We'd
ask that we go forward with the arraignment today.
ACC: Sir, the--if I may speak. The only communication that I
have received formally from Lieutenant Head was an e-mail that he sent
to me yesterday, and this was to my personal e-mail account. I have
been on leave and I returned back to work last Monday and I was
notified last Wednesday. I was asked by my supervisor, Commander
Whitsell, what is the status, and I informed him I haven't heard
16
anything about where the case stood as of the 9th of November. And
Lieutenant Head indicated yesterday afternoon, at about 11:58, that he
will be traveling down to San Diego last evening and the purpose of
this e-mail basically was to inform me that the Government intends to
depose Lieutenant JG Mark Wiggan tomorrow at 1300, and I'm not aware
of even that deposition outside of Friday an e-mail from Commander
Whitsell stating what the Government intentions were for today, but
once again still deconfliction [sic] with whether this is an Article
32 hearing or an actual arraignment.
MJ: Lieutenant Head?
DC: Sir, at this time we'd ask that the arraignment be
rearranged so that she has time to talk with an attorney whom she
trusts and thinks can give her fair advice.
TC: Sir, if I may be heard.
MJ: You may.
TC: Since 5 June 2007 the accused has had three different
detailed military defense counsel, all of which she sought their
removal without giving a reasonable basis for doing so. To this point
the Government has attempted to accommodate her, the last step being
to withdraw Lieutenant Robertson from his representation of Lieutenant
Commander Penland and assign Lieutenant Head. This was done with the
idea that we would be able to move forward on this case, arraign
today, and depose a key witness in the case this afternoon.
By continuing the proceedings, you're disenfranchising the
Government in that we have a key witness in this case who is set to
17
deploy on USS NIMITZ on Thursday, the 24th of January. He will be
unavailable to testify at trial.
And again it's just--I think we've given more than adequate
notice here to the Defense. You have an accused that comes in and
states on the record that she's seeking new counsel to represent her
and then, when she sees the direction in which the military judge
chooses to go, she all of a sudden says, "Oh, no, Mr. Blevins is
representing me." She's not being truthful and forward with this
Court, and we'd ask that you go forward with this arraignment today.
There is minimal things of substance to be decided. This
is a formal--this is a formality to get things going on the record.
As I've stated before, the Government has gone to great expense to
cause this hearing today, and we'd ask that you go forward and we ask
that we be allowed to go forward with the deposition this afternoon,
as ordered by Commander Navy Region Southwest.
ACC: Sir, I also ask that the Government considers that I
informed my chain of command on the 9th of November, so if they did,
in fact, prefer the charges to me on the 5th of June, that for two
months there was no communication from the Government to me or my
defense counsel as far as where the Government stood.
And with this being the third defense counsel that's been
detailed to represent me, for the record, I want to inform the Court
that on 2nd April I filed an IG complaint against my command and
portions of that complaint indicated information--there is specific
information to the conduct--or excuse me--misconduct of Lieutenant
18
Commander Marshall who is the command's attorney. And there is reason
to believe, that was voiced in my complaint, that she had, in fact,
colluded with several members concerning this case, other military
attorneys. Right now that complaint is still being investigated,
along with my complaint of equal opportunity violation which is still
in the appeal process, and I have had an opportunity to examine
statements that were written by Lieutenant Commander Marshall that was
made against me which also gives reason to believe that she has, in
fact, conducted herself not in compliance with her--the government
regulations as far as the military--Uniform Code of Military Justice
along with professional conduct of military attorneys.
MJ: I believe that at least from what I understand, as you've
indicated, you were advised on the 15th of January about this
arraignment; is that correct?
ACC: No, sir.
MJ: That was last Tuesday.
ACC: On the 16th----
MJ: On the 16th?
ACC: ----of January.
MJ: And you were in a leave status at that time?
ACC: No, sir. I was in a leave status the week prior. But on
the 16th of January I was presented the letter from Commander Harr
that he dated on the 15th of January stating that I am to show up for
this arraignment. But in the subject line it said "Assignment of
Counsel and Notice of Arraignment Date."
19
MJ: Very well.
TC: Sir, the date of the arraignment had been set with defense
counsel the week prior, the first week in January. As soon as
Lieutenant Head was scheduled to the case, we had worked out a day for
the arraignment. The Government is under no obligation to have to
notify the accused directly of when these hearings are. We'd assume
that assigned counsel would do that and communicate that to his
client. This was merely a step taken by the Convening Authority to
assure the accused's presence at the hearing here today.
MJ: Well, there can't be any more confusion with regard to the
scheduling since it's going to be done here in a moment on the record.
As I've indicated, I certainly want to ensure that
Lieutenant Commander Penland has had an adequate opportunity to
prepare for these proceedings. And what's happened prior to this
there seems to be some confusion as to whether defense counsel was
appointed for an Article 32 or a general court-martial. It will serve
no one's purpose to force this issue at this time.
I understand, Government, you have some interests that are
at play here and those have also been considered, but, in the long
term, I believe that it is appropriate at this point to defer
completion of the arraignment process.
Given the status and situation of counsel, Lieutenant Head,
I would encourage you, if you can, to assist Lieutenant Commander
Penland in procuring at least the request for individual military
counsel.
20
DC: Yes, sir.
MJ: Also, if you can, continue to communicate with Mr. Blevins
and encourage him to fulfill his responsibilities, if he has any,
towards Lieutenant Commander Penland.
DC: Yes, sir.
MJ: Lieutenant Commander Penland, with regard to your counsel
choices, again I am going to reinforce with you the importance of
having that team ready to go to trial. That will occur sooner or
later; in this case it will be later than perhaps we had anticipated.
I am going to give you about two weeks' time to procure those counsel
and to have them here in court ready to go forward.
ACC: Yes, sir.
MJ: Okay. So let us look at our schedules at the week of
4 February. Friday the 8th, 0900 hours, I will----
TC: Will you say that date one more time, sir.
MJ: Sure. February 8th, it's a Friday, 0900 hours, I will set
as the next 39(a) session in this case.
I will also ask, Lieutenant Commander Penland, if you
would, to communicate with Lieutenant Head to discuss the merits and
the pitfalls of representation by yourself, pro se representation;
there are obviously some issues that you should be aware of. I hope
that you will have attorneys you're satisfied with. That is certainly
your constitutional----
ACC: Yes, sir.
21
MJ: ----right and it's my obligation, as military judge, to
ensure that you are adequately represented. On the other hand, if you
cannot find counsel you're satisfied with, then that's another matter;
we'll have to discuss that. But I want to make sure you understand
the pitfalls of that kind of a process.
Understood?
TC: Yes, sir.
MJ: Very well. I don't believe there's anything further at
this time. Lieutenant Commander Messer?
TC: I have something further, sir. We have a deposition
that's been ordered by Commander Navy Region Southwest, the Convening
Authority, scheduled for 1300 today. Lieutenant Head is present; he
is the detailed defense counsel. I'd ask the Court to order that that
deposition be held today at 1300, given the fact the witness is
scheduled to deploy in two days.
MJ: Lieutenant Head, are you prepared to participate in such a
deposition?
DC: I am, sir. I had prepared for it. As I understand it,
Lieutenant Commander Penland at this time does not want to enter into
an attorney/client relationship with me; however, I have been detailed
and I am prepared for the deposition.
ACC: Sir, I was just notified of this on Friday that the
Government intends to hold a deposition this afternoon. I haven't had
an opportunity, first off, to even form an attorney/client
relationship with Lieutenant Head and, most importantly, I'm not even
22
sure what the Government prepares to ask during this deposition as far
as questions. I have an opportunity--I should, as far as right for
the accused, to have an opportunity to examine these questions that
the Government plans to ask and also, if I do retain Lieutenant Head
on this case, for him and I to come up with counter questions, so----
TC: Sir, we have----
ACC: ----a couple of hours to prepare for this as----
TC: Sir, there is five hours till this deposition is to--or
four hours till this deposition is to begin. Lieutenant Head has
stated on the record he's prepared to go forward. To not go forward
would rob the USS NIMITZ of a key officer for their deployment, as we
would request of the command that this individual stay behind. That's
not in the interest of the Navy. We ask that the deposition go
forward as planned.
ACC: Sir, the only notification that I've received was basically
an appointment of the deposition officer. That's it. I'm not sure if
the Government has even requested and entered into an agreement with
their key witness to even conduct this investigation--excuse me--this
deposition.
MJ: At this point the Court's not going to order a deposition.
If the Convening Authority has done so, then that will be his
decision.
Again, for our purposes, 8 February, 0900 hours.
The last thing I'd like to talk about, Commander Penland,
is one of our rules for courts-martial. It's called the trial in
23
absentia rule, specifically Rule for Courts-Martial 804. That rule
provides that once a service member has been brought to a court-
martial and arraigned, if that individual is voluntarily absent
without authority from the sessions of court that are set, then the
court can continue in that person's absence and they will have waived
his or her right to be present.
Do you understand that?
ACC: Yes, sir.
MJ: Okay. If you're UA on the 8th of February, 0900, we can
proceed without you being here in court. You will have waived your
right to be present and your defense counsel will represent you as
best he or she can.
I don't expect, suggest or imply you're going to be UA from
that date. It's important for you to be here to participate.
ACC: Yes, sir.
MJ: You have obviously come prepared to participate in this
trial and that's a good thing. But I do want you to understand the
importance of being here on that date. And if for any reason you
cannot be here, to communicate that to your defense counsel and the
Court as soon as possible so we can address that issue.
Understood?
ACC: Yes, sir. However, I was directed by my commanding officer
to be at the deposition this afternoon at 1300. Are we going forward
with that or what? Because I don't want to violate his order.
24
MJ: I'll let you confer with your defense counsel to determine
that. I am not going to order the deposition. Obviously another
authority, the Convening Authority in this case, has and that will be
his decision as to whether to go forward with it or not.
ACC: Yes, sir.
TC: Sir, just for the record, it is the Government's intention
that we will go forward with the deposition at 1300. We feel that
there has been adequate notice provided to both accused and counsel.
And may I approach, sir?
MJ: You may.
TC: I would like to provide to the court reporter the
deposition order, the grant of immunity to Lieutenant Wiggan, and the
appointment of the deposition officer, all to be marked as appellate
exhibits----
MJ: Very well.
TC: ----for the record. [Handing documents to reporter.]
REPORTER: [Marking documents as AE II, III and IV.]
MJ: Are there other matters we need to address on the record at
this time from either side?
TC: No, sir.
DC: No, sir.
MJ: Very well. This court stands in recess until the 8th of
February, 0900 hours.
[The Article 39(a) session recessed at 0859 hours, 22 January 2008.]
25
[The Article 39(a) session was called to order at 0935 hours,
22 February 2008.]
MJ: Good morning. This general court-martial, convened at
Naval Base San Diego, is called to order in the case of the United
States vs. Lieutenant Commander S. L. Penland, United States Navy.
Let the record reflect that all parties present at the last
session of court are again present this morning with two
substitutions. I believe Ms. Brown has been detailed court reporter
for this session, and she has been previously sworn. And it appears
that Captain Callahan has replaced Lieutenant Head.
Captain, if you would please state for the record by whom
you have been detailed, your legal qualifications and status as to
oath, and whether you have acted in any disqualifying manner.
IMC: Yes, sir. Sir, I'm the individual military counsel in this
case. The individual military counsel request was granted by Colonel
White, the SJA of MCRD San Diego. The authority to grant the IMC
request was delegated to him by the Commanding Officer of Headquarters
and Service Battalion, MCRD San Diego, Colonel Helfrick [ph].
I am qualified and certified under 27(b) and sworn under
Article 42(a) of the Uniform Code of Military Justice. I have not
acted in any manner which may tend to disqualify me in this case.
MJ: And has Lieutenant Head been relieved of any further
responsibilities?
IMC: He has, Your Honor.
26
MJ: Very well. Good morning, Lieutenant Commander Penland.
How are you today?
ACC: [Rising.] Just fine, sir.
MJ: Thank you for your courtesy in rising. You may be seated
during----
ACC: Yes, sir [resuming seat].
MJ: ----our proceedings till I ask you to rise again later.
Captain Callahan, is your client attired in the appropriate
uniform with all the awards and decorations she's entitled to wear?
IMC: She is, sir.
MJ: And I don't recall if those were read into the record last
time. Why don't we do that this morning.
IMC: Yes, sir. She's entitled to and is wearing the Navy
Commendation Medal; the Navy Achievement Medal with two Gold Stars;
Navy Unit Commendation; the Battle E, second award; the Good Conduct
Medal with the Bronze Star; the National Defense Service Medal with
the Bronze Star; the Overseas Service Deployment Ribbon; Global War on
Terrorism Expeditionary Medal; Global War on Terrorism Service Medal;
Surface Supply Officer Warfare; and Aviation Supply Officer Warfare.
MJ: Thank you.
Commander Penland, is that a correct description of your
awards and decorations?
ACC: Yes, sir.
MJ: Thank you. Please be seated.
[The accused and her counsel did as directed.]
27
MJ: This morning we're going to discuss a number of important
matters, Commander. If you have any questions, you're confused in any
way, or just want to talk to your defense attorney, let me know and
I'll be glad to give you time to do so.
Understood?
ACC: Yes, sir.
MJ: I'd like to revisit with you your rights to defense
counsel. I know we talked about this at our last session of court,
but we have a new counsel here so I'd like to get your opinion as to
his representation of you.
I remind you you have the right to be represented by your
detailed military defense, and that was Lieutenant Head and I guess
there were several other before him who have also been relieved.
You also have the right to be represented by your
detailed--I'm sorry--your individual military counsel, Captain
Callahan. If you are, in fact, represented by a military counsel of
your own choice, then normally your detailed defense counsel would be
excused. Military defense counsel represent you free of charge.
Do you understand that right?
ACC: Yes, sir.
MJ: You also have the right to be represented at this general
court-martial by a civilian defense counsel at no expense to the
United States, and a civilian defense counsel would represent you
either alone or along with your military defense counsel.
Do you understand that right?
28
ACC: Yes, sir.
MJ: I just want to talk a little bit about the individual
military counsel process since you obviously have elected to use that
process. Normally your defense counsel that's been detailed would be
excused and, in this case, apparently you have elected to excuse
Lieutenant Head; is that correct?
ACC: Yes, sir.
MJ: And I've been told that there was also a request for
another detailed military defense counsel by the name of Lieutenant
Jeeter [ph]; however, that request was declined by Lieutenant Jeeter's
detailing authority; is that correct?
ACC: Yes, sir.
MJ: Very well. At our last session there was also some
discussion about a civilian defense counsel. Do you desire to still
continue to pursue that civilian defense counsel for this case or
have----
ACC: No, sir.
MJ: Okay. So Captain Callahan alone?
ACC: Yes, sir.
MJ: Very good. And is that your desire, in fact, to be
represented solely by Captain Callahan?
ACC: Yes, sir.
MJ: Do you desire to be represented by any other attorneys,
either civilian or military?
ACC: No, sir.
29
MJ: Very good. And the Marines have landed.
For the record again, I was detailed to this court-martial
by the Circuit Military Judge of the Western Judicial Circuit. I am
properly certified and sworn as a military judge in accordance with
Articles 26(b) and (c) and 42(a) of the Uniform Code of Military
Justice.
I will not serve as a witness for either side in this case,
nor am I presently aware of any matters which I believe may serve as a
basis for challenge for cause against me. Nonetheless, I invite
counsel for both sides at this time to voir dire or challenge the
military judge as you desire.
Lieutenant Commander Messer?
TC: I have no voir dire, sir.
MJ: Captain Callahan?
IMC: None from Defense, Your Honor.
MJ: Very well. Lieutenant Commander Penland, we also talked
about the type of court-martial that can hear your case and I'd just
like to remind you that you have the right to be tried by a court-
martial composed of members. If you are found guilty of any offense
by the members, then the members would determine the appropriate
sentence.
Do you understand that right?
ACC: Yes, sir.
MJ: You're also advised that at a proper time you may request
to be tried by a military judge alone. If that request is approved,
30
then the military judge ultimately detailed to hear your case would
determine your guilt or innocence as to these charged offenses. And,
furthermore, if you were found guilty by the military judge, then the
military judge would also determine the appropriate sentence based
upon any guilty findings.
Do you understand that option?
ACC: Yes, sir.
MJ: Have you discussed these choices with your defense counsel?
ACC: Yes, sir.
MJ: Do you wish to be tried by a court composed of members or
by military judge alone, or would you like to defer this decision to a
later date?
ACC: Defer, sir.
MJ: Very good. And in a moment, I will summarize a trial
schedule that I set with your defense counsel and the prosecutor in
the case, and I have also set some related milestone dates pertaining
to those trial dates.
Let me summarize that conference that I held this morning
in chambers with Captain Callahan and Lieutenant Commander Messer.
The parties essentially have agreed that the case will be tried on the
12th to the 16th of May, here at Naval Base San Diego, and I'll set
0900 hours as the start time for the trial on those dates.
I have also set motions dates, also known as 39(a)
hearings, for the 10th of April and for the 23rd of April, and we'll
also kick those off at 0900 hours.
31
I've also discussed and will set the following milestone
dates by order of the Court:
With regard to witness requests, if there are any, they
should be filed by the 21st of March, close of business, which will be
1700 hours on that date. Any responses to the witness requests should
be filed by the 28th of March.
If there are motions, either regarding the witness
production requests or other substantive motions, I would like to have
those filed with the Court by the 4th of April. Any responses to
filed motions should be with the Court by the 9th of April.
And following our motions session on the 10th of April, I
would request pleas and forum election from the Defense.
Finally, if a members' forum is elected, I've set the 18th
of April as the date for members' questionnaires and counsel proposed
voir dire questions.
Counsel concur with my summation of the dates and
milestones selected?
IMC: Defense concurs, Your Honor.
TC: Sir, could you just please reiterate the dates for the--I
have the dates for the 39(a) sessions, but the dates when the motions
are due for those sessions.
MJ: Certainly. All motions by the 4th of April, at least the
initial round of motions. There may be other motions that arise prior
to trial, but certainly most of the anticipated motions should be
filed by that date. That gives us a fairly lengthy lead time to get
32
those with the Court.
TC: It's the 4th of April, sir?
MJ: Correct.
TC: Aye, sir. I concur with those dates.
MJ: Very well. Let me also summarize several other matters
that we discussed at our 802 conference in my chambers this morning.
The first matter was that there was perhaps a media
interest, and we welcome our public here, as court-martials are open
to the public.
Also the Defense will raise by oral motion a request with
regard to the Government's exercise of its subpoena power, to request
that the Defense be placed on notice 10 days prior to the issuance of
any subpoenas, and I'll let the parties articulate their positions in
a moment as to that particular request.
And the Government indicated it had correspondence from
Lieutenant Head and Lieutenant Jeeter's detailing authority concerning
counsel issues, and that has been marked as Appellate Exhibit V.
Counsel, are there other matters we need to address before
completing the arraignment process?
TC: No, sir.
IMC: No, Your Honor.
MJ: And, gentlemen, do you concur with my summation of our 802
conference from this morning?
TC: Yes, sir.
IMC: Yes, sir.
33
MJ: Let me also, in abundance of caution, summarize a couple of
other matters that took place since our last session of court.
Almost immediately after that session of court on the 22nd
of January, I was informed that Lieutenant Commander Penland and her
detailed counsel at that time had requested a meeting with me in my
chambers to discuss counsel issues. I declined that request as I view
that would be an improper ex parte meeting.
Later that day I held a number of telephonic 802
conferences with Lieutenant Commander Messer and Lieutenant Head, at
which Lieutenant Head requested to be excused from representation in
this case, and I won't go into the details of that since he has been
excused; I don't believe there's a need to go into further discussion.
Lieutenant Commander Messer, do you concur with my
summation of our telephonic 802 conferences?
TC: I do, sir.
MJ: Very well. Let me also just revisit the counsel issues
with you, Lieutenant Commander Penland. I know we talked about at
least your release of Lieutenant Head as your detailed military
defense counsel and your decision to proceed with Captain Callahan as
your sole defense counsel.
Have you discussed those matters with Captain Callahan in
terms of his representing you and the release of Lieutenant Head?
ACC: Yes, sir.
MJ: Okay. And you're satisfied with Captain Callahan as your
only defense counsel?
34
ACC: Yes, sir.
MJ: Very good. Captain Callahan, I neglected to discuss with
you the release process. Have you had an opportunity to obtain
turnover and any other case materials from Lieutenant Head?
IMC: Lieutenant Head did send me the case materials that he had
in his possession, Your Honor.
MJ: Very well. Okay. Let's proceed then with the arraignment
process.
Lieutenant Commander Messer, are there any corrections or
additions to the charges or their specifications?
TC: No, sir.
MJ: Captain Callahan, does the Defense desire that the charges
and specifications be read before the Court this morning?
IMC: No, Your Honor. We waive the reading.
MJ: Very well.
[THE CHARGE SHEET FOLLOWS AND IS NOT A NUMBERED PAGE.]
[END OF PAGE]
35
MJ: Accused and Counsel, please rise.
[The accused and her counsel did as directed.]
MJ: Lieutenant Commander Penland, I now ask you how do you
plead to the charged offenses; but before receiving your pleas, I must
advise you that any motion to dismiss any charged offense or to grant
any other form of relief can be made at this time.
Captain Callahan, does the Defense have any motions?
IMC: Sir, at this time the Defense would respectfully request to
reserve motions and pleas till the motions hearing date, with the
exception that the Defense still would request that the judge require
prosecution to serve 10 days' notice on the Defense before the
issuance of any subpoena, as discussed in the 802, Your Honor.
MJ: Very well. Please be seated.
[The accused and her counsel did as directed.]
MJ: You may reserve entry of forum and pleas till the date that
I've selected for that on the 10th of April of this year.
Let us get into the issue concerning the subpoena. Your
oral motion concerning that, Captain Callahan, if you would please
articulate for the record the Defense position.
IMC: Yes, sir. Sir, the Defense position is there's been an
unusual number of subpoenas in this case. I've been served with
approximately 12-some-odd subpoenas at this point dealing with a lot
of potentially personal and private information of Lieutenant
Commander Penland. Sir, while there's nothing in the law that would
specifically require the trial counsel to serve 10 days' notice for
36
these specific types of subpoenas to the Defense, there's certainly no
harm to the Government in doing that. It is not without precedent in
the law. 12 U.S.C. Section 3410 does deal with the required notice
for serving subpoenas on financial records to allow the person whose
records they are an opportunity to quash that motion. Sir, it
wouldn't hurt the Government's case in any way.
My client feels that her interests of privacy are being
abused by these subpoenas; and if the Government was required to serve
10 days' notice, it would allow myself time to raise any potential
legal objections to those subpoenas and allow yourself to make a
ruling on it. It certainly wouldn't keep the trial counsel from
actually subpoenaing any of this information. I ask if the Court
ruled that it was a proper subpoena, the trial counsel could still
proceed. So it's something that would be minimal to the Government
but could help speed the case along and could also help ensure that my
client's constitutional rights are protected.
MJ: What sort of subpoenas are being issued? What sort of
materials are sought by the prosecution?
IMC: Sir, at this point I've been served copies of subpoenas and
answers to them dealing with phone records, IP addresses, names,
addresses, phone numbers associated with e-mail accounts and various
other communications type issues, sir.
MJ: Are the subpoenas directed to your client or to the service
providers that hold those records?
IMC: No, sir. To the service providers.
37
MJ: Very well. Lieutenant Commander Messer, the Government's
position concerning the Defense request?
TC: The Government's position, sir, is that there is no
authority that we have to give notice to the Defense any time we
request a subpoena or use a subpoena to get evidence in the case. The
Government will comply with the rules of discovery and provide the
results of those subpoenas to the Defense when they are received. But
as far as giving 10 days' notice, the Government's position is that we
do not need to comply with that, nor shall we.
MJ: Captain Callahan, do you have any case precedent or
authority that would support such a Defense request?
IMC: I do not, sir.
MJ: Very well. The Court will take the matter under advisement
in terms of the Defense's oral motion. That motion is denied at this
point subject to timely reconsideration consistent with the trial
schedule and the trial milestone dates I have selected.
With regard to any statutory requirements for notice,
certainly with regard to the Right to Financial Privacy Act, the
Electronic Communications Protection Act or Privacy Act, those matters
obviously the Government will have to conform with and provide
whatever notice is required by those pertinent statutes. If you feel
the Government has not abided by the statutory requirements, I would
request timely notice from the Defense so that we can address that
here in court.
IMC: Understood, Your Honor.
38
MJ: Also to ensure that the case is monitored by this Court, I
would request that copies of subpoenas that are served by the
Government that a copy also be served on the Court.
Other matters we need----
TC: Sir?
MJ: Yes.
TC: I'm sorry, sir. Would the Court like copies of subpoenas
that have been issued to date?
MJ: Yes, please.
TC: Aye, sir.
MJ: The Court does not need to review the materials that have
been obtained as a result of the subpoena, just the subpoena itself,
so that I am familiar with the subject matter of the subpoena and also
with the target of the subpoena.
Other matters we need to address on the record?
IMC: Not from Defense, Your Honor.
TC: Nothing from the Government, sir.
I apologize, sir. I have submitted a letter from the
Commanding Officer of NLSO Northwest relieving Lieutenant Head and
making Lieutenant Jeeter unavailable. That has been marked as
Appellate Exhibit V.
MJ: Very well. And that has been received and marked by the
Court.
The last matter I'd like to talk to you about, Lieutenant
Commander Penland, if you recall the rule, and we talked about Rule
39
for Courts-Martial 804, the trial in absentia rule.
Do you recall that discussion that we had at our first
session a month ago?
ACC: No, sir.
MJ: Okay. I'll be happy to revisit that with you, as well.
Rule for Courts-Martial 804 is known as the trial in
absentia rule. It provides that once an accused has been brought
before court-martial and arraigned--and that's the process we
completed today--if that member is absent without authority, in other
words, UA from other sessions of the court-martial, the Court can
proceed in that member's absence and that member will have essentially
waived their right to be present.
Do you recall that discussion?
ACC: Yes, sir.
MJ: I don't expect, suggest or imply you're going to be UA from
your court-martial because I know you're going to be here to represent
and defend yourself fully with the assistance of your counsel. I do
want to impress upon you the importance of being here; and since we
have new dates in the trial, I just wanted to confirm those with you
to ensure that you will be present the 12th to the 16th of May and on
the 10th of April and the 23rd of April at 0900 hours.
Understood?
ACC: Yes, sir.
MJ: Very good. Anything, counsel, we need to address on the
record?
40
TC: Nothing from the Government, sir.
IMC: No, Your Honor.
MJ: Very well. This court stands in recess until our next
session on the 10th of April.
[The Article 39(a) session recessed at 0953 hours, 22 February 2008.]
[END OF PAGE]
41
[The Article 39(a) session was called to order at 0922 hours, 10 April
2008.]
MJ: Good morning. This general court-martial, convened at
Naval Base San Diego, is called to order in the case of the United
States v. Lieutenant Commander Penland, United States Navy.
Let the record reflect that all parties present at the last
session of court are again present before the Court this morning.
Let me verify that Lieutenant Commander Penland is present
before the Court, attired in the appropriate uniform with all the
awards and decorations she's entitled to wear.
IMC: She is, Your Honor.
MJ: Thank you, Counselor.
Good morning, Commander.
ACC: Good morning, sir.
MJ: The purpose for our hearing this morning is to address five
motions that were filed with the Court by the Defense, and the
Government has also filed written responses to those motions.
Attached to the motions and the responses were a number of exhibits
that the Court will also consider in deciding the issues raised by the
motions.
With regard to our appellate record, the Court has appended
to the appellate record Appellate Exhibit VII which was the Defense's
motion to suppress certain statements purportedly made by Lieutenant
Commander Penland to Captain Sturges, I believe. The Government reply
in opposition is Appellate Exhibit XII.
42
A Defense motion to require the Government to prepare a
transcript of the Article 32 proceedings was marked as Appellate
Exhibit VIII; the Government's response in opposition Appellate
Exhibit XIII.
A Defense motion to dismiss the charges based on violation
of R.C.M. 707, the speedy trial requirements, has been marked
Appellate Exhibit IX; the Government response in opposition Appellate
Exhibit XIV.
A Defense motion to dismiss the charges based on unlawful
command influence has been marked Appellate Exhibit VI; and the
Government response in opposition Appellate Exhibit XI.
And a Defense motion to dismiss based on speedy trial and
also challenging the efficacy of a docketing memorandum has been
marked Appellate Exhibit X; and the Government response in opposition
Appellate Exhibit XV.
Let me summarize for your benefit, Commander, and for the
record a brief conference I held this morning in my chambers with both
counsel present.
We discussed today's proceedings, specifically with regard
to witness testimony. I was informed that you may, in fact, testify
for the limited purpose of some of these motions and also that the
Government had on standby several witnesses that it intends to call on
the motions, as well.
I did indicate to counsel it was my intention to receive
evidence today and further arguments from the parties concerning the
43
motions, to take these matters under advisement and to issue rulings
in writing prior to our next session of court which is presently
scheduled for 23 April.
And counsel also inquired as to whether I would set
additional time lines for motions for that session on the 23rd of
April, which I will do. I might as well do that now.
With regard to additional motions, should there be other
motions filed with the Court, I'd like to receive them from either
party by the 17th of April and responses by the 21st, and I'll set
0930 as the start time on the 23rd, which I believe is a Wednesday,
and that will follow docket call if we hadn't had a docket call that
morning.
Counsel concur with my summation of the 802 conference from
this morning?
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: Very well. Then we shall proceed. Is there any particular
order you'd like to take up these motions, Captain Callahan?
IMC: No, sir.
MJ: All right. Well, why don't we dispose of those that
involve witness testimony since we have individuals standing by for
those, specifically the suppression motion and the UCI motion, and
then we can address the others later on this morning.
Why don't we start--and I guess there's also the 707 motion.
Why don't we start with the 707 motion.
44
IMC: Yes, sir. And, sir, Defense is going to call Lieutenant
Commander Penland for the limited purposes of the motion pursuant to
M.R.E. 104----
MJ: Very good.
IMC: ----and to 311. Also, sir, for purposes of efficiency
while she's on the stand, would you like me to ask her all questions
that pertain to all of the motions?
MJ: That would be fine. If you just want to kind of break or
give a transition point in terms of which testimony applies to which
issue----
IMC: Will do, sir.
MJ: ----that would be helpful.
LIEUTENANT COMMANDER SYNEEDA L. PENLAND, U.S. Navy, was called as a
witness for the defense, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. For the record, could you please state your full name,
spelling your last.
A. Full name is Syneeda Lynn Penland, P-E-N-L-A-N-D.
Q. And, Commander, what is your current duty station?
A. Maritime Expeditionary Security Group ONE.
Q. And you are the accused in this case?
A. Yes, I am.
TC: Thank you.
MJ: Captain Callahan, your witness, please.
45
IMC: Thank you, Your Honor.
Questions by the individual military counsel:
Q. Good morning, ma'am.
A. Good morning.
Q. Ma'am, how long have you been in the Navy for?
A. Eighteen and a half years.
Q. And could you briefly overview your duty stations and
assignments.
A. Yes. I was prior enlisted for seven years. I served as a
cryptologic technician administrative, and then I had seven months
break in service where I attended OCS, Officer Candidate School.
Upon completion of OCS, I was assigned to the USS HAYLER as
their disbursing officer/sales officer. From there I was assigned to
COMNAVSURFLANT and I served there for a year in the Readiness Division
in Supply. From there I was stationed to NAVTRANS awaiting further
assignment to the USS NIMITZ, where I served on board the NIMITZ as a
disbursing officer and the wardroom officer for about two years.
From there I transferred to Fleet Technical Support Center
where I served as their inspector general officer and to include the
legal officer. From there I was assigned to CNFK where I served one
year as a logistics planner, and following assignment to the USS STOUT
where I served there as their supply officer, and then Maritime
Expeditionary Security Group ONE.
46
Q. And turning your attention to the motion filed, regarding
the motion for docketing and the speedy trial motion, ma'am, were you
aware what a motion for docketing is?
A. No, I'm not.
Q. I'd like to turn your attention specifically to the
November time frame. Did you at any time discuss signing a motion for
docketing with either--well, first of all, who were your attorneys in
November of 2007?
A. Lieutenant Robertson and Mr. Clifton Blevins.
Q. Was I representing you at that time?
A. No, you were not.
Q. Was there a document that was filed by the trial counsel
during that time period, styled as a motion for appropriate relief,
that you were made aware of?
A. I am aware of the motions for appropriate relief that was
first presented. The idea of me agreeing to this motion for
appropriate relief was presented to me in mid to late October, around
submitting a leave request, and----
Q. Had charges been referred to you--referred to a court-
martial in October yet?
A. No, they had not.
Q. I'm sorry. Please continue.
A. My--when I attempted to submit a leave request, my
commanding officer, Captain Harr, indicated that unless I agree to
sign off on the motion for appropriate relief, that my leave will be
47
denied; and subsequently my leave was denied and I still am not
understanding what this motion was about, as far as docketing. All I
was told was that it agrees to trial dates.
So because my leave was denied and I had to forfeit about
$500.00 for a plane ticket, I gave specific instructions to both
Mr. Blevins and also Lieutenant Robertson not to agree to anything,
not to sign off on anything without first contacting me.
Q. And did you later learn that that was signed without
contacting you?
A. I was notified the evening of, I believe to be, November
7th, and I had requested the paperwork because the issue that
Mr. Blevins had--he kept raising was he had yet to hear anything
from--back from the command. He indicated that there was a
conversation that he had had with Lieutenant Commander Messer
concerning, you know, where do we stand in this case because we hadn't
heard anything back from the command yet.
And he also indicated that he had overheard a phone
conversation between Lieutenant Commander Messer and Lieutenant
Commander Marshall indicating, in his opinion, to be coercion from the
command to Lieutenant Commander Messer to go ahead to agree to the
motioning as justification to deny my leave.
TC: Sir, I'm going to object on narrative and non responsive
here. The witness needs to answer questions, not just go on and on.
MJ: Sustained as to narrative. If you could ask another
question.
48
IMC: Yes, sir.
Sir, also at this time I'd like to object to the presence
of who I believe is a Government witness sitting in the back of the
courtroom for witness testimony, Lieutenant Commander Marshall. My
understanding is that she will be testifying for the Government, so
I'd request that she be removed from the courtroom at this time, sir.
MJ: Lieutenant Commander Messer, is she a prospective witness
in the case?
TC: She will be a witness, sir. Yes, sir.
MJ: Okay. If we could ask you to step out, Commander Marshall.
[LCDR Marshall withdrew from the courtroom.]
MJ: And let the record reflect that Lieutenant Commander
Marshall has departed from the courtroom.
Please continue, Captain.
IMC: Thank you, sir.
Q. Ma'am, what date did you become aware that Lieutenant
Colonel--or that Lieutenant Robinson [sic] did, in fact, sign off on
the motion for docketing?
A. I believe it was November the 8th and----
Q. And when you learned he had signed off on that, what was
your response to that?
A. I was told verbally, but I had requested through several
e-mails from Lieutenant Robertson to provide me a copy of what he had
signed off on to forward to the prosecutor, and I never did receive an
e-mail back from him.
49
Q. Did you contact Captain Harr about the motion for
docketing?
A. I contacted Captain Harr after I had received the paperwork
that was presented to me by Lieutenant--excuse me--Mr. Blevins on the
8th, and it appeared to have been--the document had appeared to have
some alteration to it, so I wasn't sure whether or not the document
was actually authentic.
Q. Who is Captain Harr?
A. Captain Harr, he's the Commodore of Maritime Expeditionary
Security Group ONE.
Q. And why did you contact him about the motion for docketing?
A. I contacted him to inform him that I never did give
Lieutenant Robertson permission to sign off on the docketing and that
Mr. Blevins was interrupted repeatedly during a court hearing that he
had attended both by Lieutenant Commander Messer and Lieutenant
Robertson to give the paperwork back to him as soon as possible.
Q. And had you specifically told Lieutenant Robertson not to
agree to the motion for docketing?
A. I told Mr. Blevins and Lieutenant Robertson not to agree to
anything coming back from the Government until they speak with me and
relating back to the leave issue.
Q. What was Captain Harr's response when you e-mailed him the
next day objecting to the motion for docketing?
A. I requested relief of Lieutenant Robertson based on the
fact that he had misrepresented me, and Captain Harr replied back to
50
me on November 9th acknowledging that he will take action
acknowledging my concerns. And I did not hear anything back from the
Government until sometime in January.
IMC: Sir, that's all dealing with the motion for docketing.
MJ: Very well.
IMC: At this time, with the Court's permission, I'd like to move
on to the motion to suppress the statement.
MJ: Very well.
Q. Lieutenant Commander Penland, were you called in to speak
with Captain Sturges sometime around the 21st of February of 2007?
A. I believe it to be the 23rd of February, to be exact.
Q. And can you please tell the Court what was going on in that
time in regards to your case and allegations that had been made
against you.
A. What was going on at that time?
Q. What was going on--what was the status of your case? Had
charges been preferred against you, had there been any investigation,
had there been any orders issued, any complaints made against you?
A. On the 23rd of February or now?
Q. Had you had a military protective order that had been given
to you?
A. Yes. January 9th I was contacted by--I can't remember the
lieutenant commander's name who was filling in for Lieutenant
Commander Marshall on her maternity leave. She called me, when I was
TAD to the CMEO course, to indicate that a military protective order
51
had been issued against me, because NC1 Lewis-Wiggan at the time had
contacted the command and alleged that I was calling, making harassing
phone calls to her. And she said this is not a big deal; there is no
need for you to even come in to the command to pick up the MPO and
just call in as courtesy over the phone. But I felt the need to go
out to the command to pick up the document just to see what the nature
of the MPO was about.
Q. What happened when you went in to speak with Captain
Sturges on approximately the 23rd? From when you first entered the
room, who all was present?
A. The Commander JAG, she was present, Commander Masi and
Captain Sturges.
Q. And who's Commander Masi?
A. Commander Masi, he is the Supply Department head.
Q. Was that your immediate supervisor?
A. Yes.
Q. Ma'am, when you came in, what did Commodore Sturges say to
you?
A. His exact words to me was "I received a personal phone call
from the Commanding Officer of USS MOBILE BAY making a complaint about
a member of my wardroom. Because he's a fellow O-6, I feel obligated
to look into this matter."
Q. Did he at any time read you your rights?
A. No, he did not.
52
Q. Were you read your rights at any time at all while you were
in there?
A. No, I was not.
If I can add something further?
Q. Certainly, ma'am.
A. After the discussion with Captain Harr, when I went back to
the supply office, Commander Masi stated to me that the phone call had
come in to Commander Ward and it was actually a phone call from the
executive officer of the MOBILE BAY, not the commanding officer, and
it was two days prior and it was on the 21st, I believe.
IMC: Sir, that's all the testimony I have for now on the motion
to suppress. With the Court's permission, I'll move on to the motion
to dismiss for unlawful command influence and the accuser motion.
MJ: Very well.
IMC: Thank you, sir.
Q. Lieutenant Commander Penland, when did you report in to
Naval Coastal Warfare Group ONE?
A. January of 2006.
Q. And what was your billet there?
A. I was the supply officer.
Q. What are the general responsibilities of the supply officer
on board Naval Coastal Warfare Group ONE?
A. At that time I was the agency program coordinator for the
government purchase card. I also managed all the procurement
requests, all the budget/financial execution contacts. I was also the
53
contracting officer, as well.
Q. Upon reporting in, did you notice various contracting
discrepancies that were taking place?
A. Most definitely, almost right away.
Q. What were they?
A. One of the major contract violations was with a service
that we use through FISC, ISOT [ph], and----
Q. And I'm sorry. I'm going to ask you to define some of
those terms. What is FISC?
A. Yes. The service is basically for civilian employment. and
let me back up because there was one prior to that.
When I first came on board, there was a contract that was
put in place to Gov Works for about $3,000,000. The contract was
signed off in 2003 and apparently it had been able to cross over
fiscal years, and that was a violation within itself just to have the
contracts lap fiscal years. There was still $985,000 remaining on the
contract. My immediate supervisor at the time, Lieutenant Commander
Antonio, he kept insisting that we use contracting services through
Gov Works, which we had received notification from NAVSUP, Navy Supply
System, that Gov Works was illegal. But we spent about the remainder
of the $985,000 towards that Gov Work contract instead of recouping it
and giving the money back.
Following the Gov Works violation, there was another
violation with the ISOT and that was----
54
Q. And what is ISOT?
A. Yes. ISOT is Inter Service Supply Support and we receive
services from FISC and it's basically to hire contractor employees.
What I noticed with that particular contract violation was the
civilians there were performing inherently governmental
responsibilities which is a clear violation of the Federal Acquisition
Regulation, the FAR.
TC: Sir, narrative.
MJ: Overruled.
WIT: So when I attempted to bring my observations to the
command, it was around August of 2006, and I did present copies of the
FAR and a detailed description----
Q. And what is the FAR?
A. The Federal Acquisition Regulation. Detailed description
listing inherently governmental responsibility, I had presented it to
Commander Ward and he----
Q. And who is Commander Ward?
A. Commander Ward, he was the Chief Staff Officer at Coastal
Warfare Group ONE. He knew that I was still conducting an
investigation into the ISOT discrepancies and he asked me to provide
Lieutenant Commander Marshall a copy of that so that we can ensure
that we're, you know, working within the guidelines of the FAR. And
when I presented it to her, her comment back to me, she said, "Why are
you always starting trouble? I don't need that."
55
TC: Sir, I'm going to object under relevance on this. I'm not
sure how this goes to UCI.
MJ: Captain Callahan?
IMC: It does, sir, because it's going--starting at the very
beginning, Lieutenant Commander Penland checks on board, Lieutenant
Commander Penland is noticing significant and severe contracting
violations which she is bringing up to the attention of the command,
to include the chief staff officer, Commander Ward, who eventually
ordered the Article 32. Because they failed to take action on these
and because of the action they took against her, she filed both IG
complaints, requests for audits, equal opportunity complaints. And it
goes to show that the command, especially Commander Ward and Captain
Sturges, have a personal vested interest in the outcome of this case
because of the allegations of contracting violations, equal
opportunity complaints, audits and such requested and filed by my
client against them.
MJ: You may proceed. Overruled as to relevance.
IMC: Thank you, Your Honor.
Q. Ma'am, did Commander Ward take any action on those issues
you raised to him and had presented to?
A. Yes. Commander Ward at that time, he was extremely
proactive. However, I felt that Lieutenant Commander Marshall was not
due to her personal relationship with one of the civilian contractors,
Ike Owens.
56
Q. And who is Ike Owens?
A. Ike Owens, he's a retired Navy captain.
Q. And he was one of the civilian contractors there?
A. Yes, and he's still assigned to Maritime Expeditionary
Security Group ONE.
Q. After you reported those initial observations, were there
other supply and contracting issues that came up that you then
addressed with the chain of command?
A. I attempted on several occasions to obtain a copy of the
contract with LS, Inc. because I felt that once again----
Q. And I'm sorry. What is LS, Inc., ma'am?
A. Logistics Support, Inc. In July of 2006 the command was
doing a merger of all the civilian contractors and they were all to
file up under one umbrella and ultimately Logistics Support, Inc. Ike
Owens, he informed me that he, as a civilian contractor, that he was
in charge of conducting all the interviews, establishing salaries, and
which I already knew it to be a violation of the Federal Acquisition
Regulation.
So from July of 2006 until January I made numerous attempts
to try to get a copy of the contract just to ensure that we were
working and assigning civilian taskers in compliance of the task order
number to the contract.
In January of 2006, I received an e-mail from my--Commander
Masi's counterpart at Maritime Expeditionary Security Group TWO out of
Portsmouth telling me to chill out, to stop asking questions about
57
this contract.
Q. And who was that officer?
A. Lieutenant Commander Pedden [ph]. In his e-mail, he
specifically stated that if I wanted to retire in this area and, you
know, remain a part of the government, the contractor role, that I
need to protect my reputation, therefore, I need to stop asking
questions about that contract.
Q. And did either Captain Sturges or Commander Ward take any
action on these contracting issues?
A. In November, because I believe Commander Ward had shared
the same concerns that I did, he told Commander Masi and Commander
Masi--he conveyed this to me while we were out jogging one morning in
November, too. Commander Ward said "Watch out for Ike, get a copy of
that contract and keep your eye on Ike Owens."
Q. And when did--when did the relationship between you and
Commander Ward break down?
A. Commander Ward, during my FITREP debrief in October--
actually the beginning of November, November 3rd I believe is when I
was debriefed. He had some concerns. He shared that the front
office, there were two involved in Supply Department, that this is the
first time that he's ever served with supply officers where the front
office had to be that involved. Now, I had just transferred from a
ship and I was so used to that direct communication with the
commanding officer, primarily if it's going to be something damaging
that's going to come back on the command, and I felt that Commander
58
Ward--he expressed his concerns just about my relationship with
Commander Ward, but I noticed more severe deterioration after
Commander Masi had checked on board.
Q. And who is Commander Masi?
A. Commander Masi, he's the Supply Department department head.
Q. And what happened when Commander Masi checked on board?
A. Commander Masi was spending an extreme amount of time--
because the Supply Department was located in trailers outside the
headquarters main building and he started to spend an extreme amount
of time in the main building. I would always see him jogging with
Commander Ward; he was, you know, with him constantly, and I felt that
Commander Masi was a lot more concerned about protecting his
reputation or at least establishing one at the command than he was
about a lot of the procurement violations that I was trying to bring
to his attention.
Q. So you brought these procurement violations to----
A. Most definitely.
Q. ----Commander Masi's attention? What specific----
A. I even----
Q. ----procurement violations were you bringing to Commander
Masi's attention?
A. One in particular was the procurement of some dry suits for
Squadron FIVE where I was working with a supply officer to--well, the
supply officer had submitted an ACR, an Allowance Change Request, to
have them added to the TOA [ph], The Tabled Allowance, which basically
59
governs all the material and the gear that we buy for our units. They
cost $135,000.00 and I requested that until we receive authorization
from Naval Expeditionary Combat Command, who is our ISIC and who
approves the TOA, that we hold off on that buy. Commander Masi, he
directed SKC Zogaib to go ahead and make the procurement which far
exceeded her authorization, which was only $100,000.00. That's what
she was authorized to purchase on that.
So the morning that the phone call came in from the
executive officer of the MOBILE BAY was the same morning I had
challenged Commander Masi for the unauthorized commitment, and I also
had a budget brief that same morning with Captain Sturges. I did not
bring the violation to Captain Sturges' attention, but I felt that
Commander Masi had--he was concerned that I would, but I never did.
And soon after I was notified that the phone call from NC--well,
excuse me--the executive officer----
TC: Objection, sir. Narrative.
MJ: Sustained. Captain Callahan, another question, please.
IMC: Yes, sir.
Q. Ma'am, what was Commander Masi's reaction to you bringing
up and reporting procurement violations?
A. Commander Masi started to go directly to the contractors
for tasking and he--it's almost like he just begun to shut me out
completely.
60
Q. Did he ever talk to you about not being able to trust you
or allow----
A. Oh, most definitely.
Q. ----you to handle contracting issues?
A. One particular incident he actually called me after I had
left work and told me "I can't believe you contacted, you know, a
civilian contractor," which was Ike Owens because he needed some
confirmation on an issue that was going on at the time and Commander
Masi failed to address it, and because I was proactive in addressing
the matter he was called to Commodore Sturges' office to address it
and I guess he didn't have all the details, so he said "I don't trust
you. I can't trust you."
TC: Objection, sir. Hearsay.
MJ: Overruled.
WIT: And during the equal opportunity investigation, he actually
wrote that in his statement, that he did not trust me for the first
three months that he worked with me.
Q. Did he ever talk to you or respond to you in regards to
attempting to get audits done of the command and their supply
contracts?
A. It was never a request for an audit. In January of 2007,
Commander Masi wanted us, meaning all the Supply Department personnel,
to work on performing a self-assessment, a supply management
assessment on ourselves. Because we had never done it before and the
only guidance that we had was that we perform on our squadrons, I
61
contacted Commander--Lieutenant Commander Pedden and I asked him if
he, in fact--if they had a copy of an SMA or if NECC, in fact, had a
copy if they came out----
Q. And what is NECC?
A. Naval Expeditionary Combat Command.
Q. Is that the parent command?
A. It's our ISIC, yes.
Q. And did Commander Masi see that as you attempting to get an
audit done?
A. Commander Masi knew exactly what he had tasked me to do.
Q. But was he upset with you for what he perceived you as
attempting to audit or contact outside commands, and did he speak with
you about contacting outside commands?
A. Commander Masi--when I received the letter of instruction,
it actually stated in there that I had tried to get an audit, I
contacted someone outside of the command requesting an audit be
performed. Now, whether it was easy for him to misinterpret what
Commander Pedden had relayed to him of the conversation that took
place between me and Commander Pedden, and I knew what I had asked
him.
Q. When did you receive the letter of instruction?
A. It was the following workday, that Monday after I had
received notification of the phone call from the XO.
62
Q. What was the basic contents of the letter of instruction
you received?
A. The basic content, there was no basic content. It appeared
to have been ironclad. It was three pages. I had just received a
4.33, I had only been a lieutenant commander for two months, and when
I received what I felt to be an excellent fitness report, to now have
a letter of instruction presented to me that was unsubstantiated.
Q. And who issued you the letter of instruction?
A. Captain Sturges, and I requested to refute it and he denied
my request.
Q. Did you ever go and speak with Lieutenant Commander
Marshall about the contracting violations and the work environment
that was over at the Supply?
A. Yes. In December, I expressed to Lieutenant Commander
Marshall my concerns of working with Commander Masi. I told her, I
said--and, sir, pardon my language. But I said "I've already worked
through a year of hell working for Commander Antonio," and I said, "I
refuse to continue to work in an environment like that." And I was
actually seeking information about possibly resigning, and her comment
was, "There is no need for you to resign. I will talk to the chief
staff officer and Deb, who was the N1, and we'll try to get you
transferred because frankly, Sy, you're just not a good fit for
Coastal Warfare, that you will maintain this black cloud over your
head as long as you stay here." And the following day Commander Masi
told me of the content of the conversation that I had with Lieutenant
63
Commander Marshall the previous day.
Q. Did you believe that the conversation you had with
Lieutenant Commander Marshall was covered by attorney/client non
privileged communications?
A. I felt that it was a protected communication, but she
stated that she would not tell Commander Masi. "Don't worry." She
even called me later that evening to tell me, "Hey, Sy, I just want to
give you an update. Don't worry. I never did tell Commander Masi."
But--no. She said that she did tell him, but she didn't go into the
details and he said he would assist her at getting me transferred
someplace else.
Q. Can you go into your details surrounding your filing of the
IG complaint and the equal opportunity complaints. I guess let's take
them one at a time, and I'll start with the equal opportunity
complaint first. When did you file that?
A. Can you give me a second?
Q. Certainly, ma'am.
A. Okay. After receiving the letter of instruction, I--it was
difficult. That was a difficult pill for me to swallow because I knew
a lot of the allegations were false and, not having an opportunity to
refute them, I wanted answers. I wanted an answer as to why. So on
the 9th of March, right before I was heading off to a couple of
appointments, I had sent the Commodore an e-mail giving him an
opportunity to finally get my side of the story.
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So I went in and I was diagnosed with an ulcer, a stomach
ulcer, so I decided to take leave for about two weeks, and during that
time frame, on the 20th of March, I received two phone calls from
Warrant Officer Newbacker [ph] telling me that the command has
canceled my TAD.
Q. And who is Chief Warrant Officer Newbacker?
A. She's the N1 Admin Officer and her and Commander Marshall,
they're best friends.
And I also received a phone call from a civilian
contractor, Kevin Motin [ph], who's employed with LS, Inc., and he
informed me that Commander Masi had solicited another contractor, to
approach him and another contractor, Nestor Farin [ph], to write
statements to substantiate----
Q. To write what type of statements?
A. As to whether or not I had ever approached them to discuss
inappropriate conversation. My concern was the fact that Commander
Masi was soliciting contractors to interfere with military matters.
And when I contacted Commander Ward--because I was
instructed by Warrant Officer Newbacker if I had any questions
concerning cancellation of the TAD, I could call. And so when I did,
he told me, "Well, you're pending NJP charges which is why your TAD
had been canceled. I don't know what you're talking about as far as
this investigation with Commander Masi because the PI, preliminary
investigation to the allegation had already been closed out and I
believe they were closed out like on the 7th of March." He said "Any
65
further questions, you can contact Commander Marshall." So I did.
And during the discussion, I challenged her back to the
conversation that her and I had back in December and I told her that I
felt that ever she had relayed to Commander Masi what I had disclosed
to her, that I had started to experience reprisal and equal
opportunity violations from Commander Masi. And then she said, "I
don't know what you're talking about," and I can't remember the exact
content, but the phone call was interrupted and that phone call took
place on the 20th of March.
What I notice the morning of the 26th, when I was presented
with my charge sheet, that Commander Marshall had, in fact, herself
printed out copies. She went into the on line billing, and that's
IBAS, which only two people at the command had access to, that which
provided our cell phone records. She had went into the system and she
herself printed out copies of the phone records which was the dated
the 20th of March, and I felt that she--because in an e-mail that the
command--that she had sent to Lieutenant Commander Lashleeay [ph] on
the 14th was the command----
Q. I'm sorry. Who is Lieutenant Commander Lashleeay?
A. Lieutenant Lashleeay, she was the first defense counsel
that I had spoken to about the charges. I presented her a copy of the
LOI and she viewed that as being as a reprisal, as well. So they only
mentioned contemplating charges and she was specific to what the
charges were. There was never a mention of the phone records. Even
in Commander Doud's preliminary investigative report there was never a
66
mention of phone records. But that particular morning that first set
of charge sheets I was presented with all of these copies of phone
records that Commander Marshall herself had printed out and ironically
they were dated the 20th, the day that that conversation took place.
So when I refused NJP, on the spot I exercised my right,
Commander Ward excused myself and Commander Masi from his office.
Then we went into the lounge. Commander Masi asked me "Did your
attorney suggest for you to elect court-martial," and I said, "Sir, I
cannot discuss that with you." So when we walked back in----
TC: Sir, I'm sorry to interrupt. I'm going to object to
relevancy here. I still don't see how this has anything to do with
the unlawful command influence motion. We've covered the allegations
that the commander has made. Now we're into her refusing NJP. I
don't see a tie.
MJ: Captain Callahan?
IMC: Sir, specifically we're getting into the equal opportunity
complaint and the IG complaint here, the basis for them, who the
complaints were made against, which ties into the accuser motion.
MJ: Well, whether it's the basis for the complaints or not, I
think the significance is that whether they were made or not made and
then what impact that might have on the command structure. So if we
could ask a little more focused question to get there, please.
IMC: Understood, sir.
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Q. Ma'am, specifically who did you raise equal opportunity
complaints against?
A. I raised it initially against Commander Ward, Lieutenant
Commander Marshall, Commander Masi and Senior Chief Barton.
Q. And did you later amend it to include additional people
from the command?
A. Later I did, but specific to those individuals it is based
upon what occurred from the 26th through the 29th--actually the 30th
of March.
Q. And did you also file IG complaints against members of the
command?
A. Yes, I did.
Q. Specifically, which members of the command?
A. The members later included--just for clarification
purposes, there was never--the EO complaint came after the IG. The EO
issues were initially made in my IG complaint, but I was told that
because NECC at that time did not have an equal opportunity advisor
for three months that portion was never investigated.
Q. And who did you name in your IG complaint?
A. I named----
Q. I guess if I can ask you a couple specifically, did you
name Commander Ward in your IG complaint?
A. Yes, I did.
Q. Did you name Commander Marshall in your IG complaint?
A. Yes, I did.
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Q. Did you name Commander Masi in your IG complaint?
A. Yes, I did.
Q. Did you name Commander Pedden----
TC: Objection. Leading.
WIT: Yes, I did.
MJ: Overruled.
Q. Did you name Captain Sturges?
A. Yes, I did.
Q. Did you later also file reports of charges and forward them
up to the command?
A. Yes, I did.
Q. Specifically what--let's start with Commander Ward. Did
you forward charges on Commander Ward up the chain of command?
A. Yes, I did.
Q. What charges did you allege against Commander Ward?
A. That the week between the 26th and the 29th of March that I
experienced unlawful--let me back up to refresh my memory on that. It
was equal opportunity violations primarily with numerous accounts of
communicated threats, cruelty, maltreatment, abuse of authority. I
can't remember exactly the specifics off the top of my head.
Q. And did you forward those to the commodore for a
determination on those?
A. I forwarded them to him on September the 4th, and the very
next day, September the 5th, I was instructed to come to the command
to sign off on my fitness report, receiving a 1.0.
69
Q. And that was after you made these----
A. Yes.
Q. ----charges? Did you also forward charges to the admiral
on Commander Marshall?
A. Yes. And I also provided along with my equal opportunity
complaint an addendum for my appeal to include the charges and also
forwarded them to Captain Harr in November, and he indicated that they
had been dealt with appropriately. However, I was never contacted by
a preliminary investigator to provide evidence or even provide a
statement to substantiate the report of offenses.
Q. So you forwarded an official report and disposition of
offenses and were never even asked about it?
A. No.
Q. Did your allegations against Commander Ward include
allegations of conduct unbecoming an officer and false official
statements?
A. Most definitely.
Q. Did you accuse him of violating Article 134 for wrongfully
interfering with administrative proceedings?
A. Yes.
Q. Are these the same general nature of the charges and
allegations you brought against Commander Marshall, as well?
A. Yes.
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Q. What other senior members of the chain of command did you
file a report and disposition of offenses on?
A. Commander Doud.
Q. And who is Commander Doud?
A. Commander Doud, he was the preliminary investigator who
conducted the investigation into the allegations made by NCC Wiggan.
Q. Did you also file allegations against Chief Warrant Officer
Newbacker?
A. Yes, I did.
Q. And Chief Barton?
A. Yes, I did. There were several violations committed by--
reported to have been committed by Senior Chief Barton. One of them
was the fact that he failed in his capacity as the CMEO.
Q. And what does the CMEO----
TC: Sir, I'm going to object to under relevance here. The UCI
motion states that it was Commander Ward and Captain Sturges who used
unlawful command influence. I'm not sure why we're getting into all
the charges of all these other people.
MJ: Captain Callahan?
IMC: Again, sir, this just goes into the sheer number of people
at the command that have been involved in this, the allegations made
against a number of people at the command and it does go to the
appearance of unlawful command influence. The courts have stated and
held that they are interested in stopping even what appears to be
unlawful command influence even without any direct evidence of
71
unlawful command influence and certainly the fact that a senior
service member has filed official complaints requesting individuals be
charged is certainly something to consider in whether or not it would
appear that the command has a personal outcome in the case of the
accused.
MJ: Well, again, let's focus on the authority in the command
that has the interest. I mean, there may be others down the food
chain that are interested but do not have an impact, unless you can
make that nexus.
IMC: Understood, sir.
Q. Ma'am, in addition to reporting those violations, filing an
IG complaint and filing equal opportunity complaints, did you also
file a Congressional inquiry?
A. Yes, I did.
Q. And what officer--did you name Commander Ward in the
Congressional inquiry?
A. Yes, I did.
Q. Did you name Captain Sturges in the Congressional inquiry?
A. Yes, I did.
Q. Did you name Lieutenant Commander Marshall in the
Congressional inquiry?
A. Yes.
MJ: I'm sorry. I didn't hear a response.
WIT: Yes, sir.
MJ: Thank you.
72
WIT: Then most recently I filed a DOD IG complaint of reprisal
on failure to provide whistle blower protection.
Q. And what--did you file that against Commander Ward?
A. Yes, I did.
Q. Against Captain Sturges?
A. Yes, I did.
Q. Against Lieutenant Commander Marshall?
A. Yes, I did.
Q. Ma'am, if I can turn your attention to the leave that you
had scheduled before the motion for docketing. Can you please just
briefly tell the Court--I know I've submitted the e-mails to the
Court--but just briefly explain to the Court the conversations that
took place between you and the captain in regards to your approved
leave request and that motion for docketing.
A. The leave was initially approved by Commander Whitsell and
that was the practice as long----
Q. And who is Commander Whitsell?
A. Commander Whitsell, he was the supervisor--immediate
supervisor that I reported to at REDCOM Southwest, and it was three
weeks prior to, I believe the 12th of September is when he had bottom
lined it, and then on the 10th of October Commander Ward disapproved
it and it was Commander Ward, as acting, he disapproved it. And then
when I attempted to resubmit it to Captain Harr, e-mail correspondence
over the course of several days, he stated that as long as I
deconflict [sic] other medical issues, but most importantly I needed
73
to sign off on the motion for docketing until my leave can be
approved, which is it goes back to that conversation on the 23rd of
October and also correspondence from Mr. Blevins to Lieutenant
Commander Messer that the Government hasn't gone forward, that we
hadn't received any notification that the court was even--excuse me--
the case was even referred to general court-martial, and Admiral
Hering did not sign off on the preferred charges until the 6th of
November.
Q. Ma'am, lastly if I can take your attention to the Article
32 hearing that occurred in your case. Was I present for the Article
32 hearing?
A. No, you were not.
Q. Was I your counsel at the Article 32 hearing?
A. No.
Q. Who represented you at the Article 32 hearing?
A. Mr. Blevins and Lieutenant Robertson.
Q. Was there any significant testimony that came out at the
Article 32 hearing?
A. Most definitely. Commander Doud testified to the fact that
both he and Lieutenant Commander Marshall had written the statement on
behalf of NCC Lewis-Wiggan.
Q. And that's the statement that was filed as part of her----
A. Yes.
Q. ----investigation?
A. Which met every single element for adultery.
74
IMC: I think, ma'am, I don't have any further questions for you
at this time. Commander Messer may have some questions for you.
Thank you, Your Honor.
MJ: Commander Messer.
TC: Yes, sir. One moment.
MJ: Certainly.
CROSS-EXAMINATION
Questions by the trial counsel:
Q. Commander, let's start with the UCI since that's fresh in
our memory here. Is there anyone in the senior leadership of, I
guess, then Naval Coastal Warfare Group ONE, now MESG ONE, that you
haven't filed a complaint against?
A. Yes.
Q. Who?
A. That I have not?
Q. Yeah, senior leadership.
A. I don't quite understand your question. I mean, are you
asking if I filed a complaint against everyone at the command or----
Q. Yes.
A. No, I have not, Lieutenant Commander Messer.
Q. Who haven't you filed a complaint against?
A. Do you want to know who specifically, who I have?
Q. No. I'm--the question is very clear.
A. I'm not sure who's on staff there now.
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Q. Who haven't you filed a complaint against at the command in
the senior leadership?
A. I'm not sure who's on staff there now.
Q. Approximately how many people have you brought accusations
against at the command?
A. Do you want them by name or number?
Q. Just a rough number.
A. I don't know off the top of my head.
Q. Well, you certainly spent a lot of time putting these
complaints together. You can't give the Court a general idea? Ten
people? Fifteen people? Twenty people?
A. No.
Q. Now, isn't it true that you've been removed from your
duties as supply officer for MESG ONE?
A. Yes, for over a year now.
Q. And isn't it true that you were counseled by the command
for poor performance?
A. "Counseled" meaning the letter of instruction?
Q. Yes.
A. Yes.
Q. And that letter of instruction, you testified, was issued
by Captain Sturges?
A. Following the phone call, yes.
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Q. And were you removed from your duties at that point, or
were you removed after the letter of instruction was issued?
A. I was removed after--approximately a month after.
Q. And so you would agree that the purpose of a letter of
instruction is to instruct someone on what they need to do to improve
their performance?
A. It was found to be unsubstantiated, in my opinion, and I
was never given an opportunity to refute it.
Q. That wasn't my question. You agree that the purpose of a
letter of instruction is to instruct someone on how to improve their
performance?
A. If the allegations supporting the letter of instruction are
significant, yes, but they were not.
Q. And that was the reason the command issued you a letter of
instruction in this case was to, in their mind, improve your
performance?
IMC: Objection. Calling for speculation on what the point of
the--the purpose of the command was in issuing the letter of
instruction.
MJ: Sustained.
Q. Did you comply with the letter of instruction?
A. I wasn't given enough time to comply.
Q. So that's a "no"?
A. I was relieved before the time period had even expired.
77
Q. So you were relieved because you didn't comply with the
letter of instruction?
A. I was relieved because I refused NJP, and I experienced
reprisal, and I was given a direct order by Commander Ward not to talk
to anyone and primarily Captain Sturges for their actions.
Q. You're not answering my question. My question----
A. I just did.
Q. You did not answer my question, ma'am. The question is did
you comply with the letter of instruction?
A. Yes, I did.
Q. Yet you were still removed from your duties as supply
officer?
A. Lieutenant Commander Messer, I was relieved. I was
directed to go TAD the day after I refused NJP.
Q. And do you know why that was?
A. Because I refused NJP.
Q. It had nothing to do with the fact that you were no longer
a productive member of the command?
A. No. I was not told that. I was relieved by Commander
Ward, not Captain Sturges; he was TAD at the time.
Q. So Commander Ward was acting?
A. Yes, he was acting.
Q. Now--well, we'll get to those in a minute.
You talked at length about several different officers and
78
complaints that you raised against them. I just want to go quickly
down through some of them.
Lieutenant Commander Pedden, I believe it's pronounced,
isn't it true that you accused him of having an affair with you?
A. Did I file a complaint against Commander Pedden stating
that?
Q. Again----
A. No, I did not.
Q. I'm going to ask you questions and I'd ask that you answer
the questions I ask you. Okay.
The question was isn't it true that you accused Commander
Pedden of having an affair with you?
A. No, I did not.
Q. So you never sent him an apology via e-mail after the fact
saying "I'm sorry I made those accusations against you"?
A. I did not send Commander Pedden an e-mail apologizing to
him; no, I did not.
Q. Okay. Now, you initially--you stated initially Commander
Ward shared some concerns with you; is that right?
A. Concerns about what?
Q. About your case, about you, and the command--how the
command was dealing with you. I'm just using your words. You said
Commander--or the answer was Commander Ward shared some concerns, but
then the relationship broke down. Is that a true statement?
A. Commander Ward showed some of the same concerns that I had
79
raised to him concerning contracting issues, procurement violations,
yes.
Q. Yet in the end you ended up filing complaints against
Commander Ward?
A. For the events that took place between the 26th and the
29th of March, yes.
Q. And that was because, in your opinion, he no longer
supported you?
A. No, that was not why I filed a complaint against him.
Q. Did Lieutenant Commander Marshall, the SJA for the command,
ever tell you that you had an attorney/client privilege with her?
A. She never did tell me that I didn't.
Q. Thanks.
Now, let's talk a little bit about the EO complaint. Has
this--has your complaint--when was that complaint filed?
A. I made my initial protected communication to NECC IG on the
30th of March, that morning.
Q. Of this year or----
A. Of 2007.
Q. In 2007. And has that complaint been resolved; have you
received a response from whoever is investigating that complaint?
A. The feedback that I have been receiving is the case is
still open.
Q. So at this point the issues you raised in the complaint are
still allegations; they haven't been substantiated or unsubstantiated?
80
A. I haven't received a final report yet, so I don't know.
Q. And you gave specific names, but do you know how many total
people you implicated in your equal opportunity complaint?
A. [Reviewing notes.] To have been involved, committed or
witnessed, quite a few.
Q. I'm sorry. Are those notes you're referring to in front of
you there?
A. Yes.
TC: Sir, I would ask that the witness be instructed that she
not refer to her notes in the course of the testimony.
MJ: Captain Callahan?
IMC: Sir, I don't think it's inappropriate to have her referring
to her notes in the course of a--he's asking a lot of detailed
questions, how many people, what people, when, where, about a lot of
complaints, allegations that have taken place over, you know, a year
at this point.
MJ: Have these materials been provided to the Government?
IMC: I believe some of those are the Government materials that
have been, sir, that were filed along with the motion. I'm not sure
if all of what she has up there is included with the motions.
MJ: Well, if she's relying on it for her testimony, there would
seem to be some discovery responsibilities in that regard.
But the Court's more concerned, Lieutenant Commander
Penland, with what you remember; and if you can't remember without
relying on the documents, then that can be your answer. If there is
81
other information that you could refer to that might help refresh or
support a recollection, then that can also be an appropriate answer.
But if you would, please, at this point not refer to any documents.
TC: Thank you, sir.
Q. The question I had asked you was if you recalled how many
people were implicated in your complaint. Do you recall that off the
top of your head?
A. The EO complaint or the IG complaint of reprisal?
Q. The EO complaint.
A. Eleven--the way the SITREP was written was 11 by male and
two Caucasian female, but I did give clarification that it wasn't as
many. I believe it was to be nine.
Q. Okay. Isn't it true that one of those individuals you
implicated in your complaint was your detailed defense counsel,
Lieutenant Stephens?
A. Yes.
Q. Now, let's talk a little bit about the IG complaint. What
actions have been taken on this complaint, if any?
A. The case is still open.
Q. So at this point the accusations that you have made are
allegations; is that correct?
A. Yes.
Q. Now, in the course of this complaint, you went ahead and
filled out report chits on individuals within the command; is that
right?
82
A. Yes.
Q. So you actually filled out disposition of offenses, of the
type of form that would be used to take someone to NJP; is that
correct?
A. Yes.
Q. Isn't it true that you don't have authority to take any of
these individuals to non judicial punishment?
A. I have the authority to report it. We all do.
Q. But you----
A. And a responsibility.
Q. But you filled out a report chit on these people?
A. I initially reported all of the offenses in my IG complaint
and I was directed by the advisors and also the investigator that I
needed to report it to the individual's chain of command or immediate
supervisor, which is what I did. I reported it to Captain Sturges and
Captain Harr.
Q. So you forwarded to Captain Sturges all of these report
chits, correct?
A. Yes, I did.
Q. And he was the subject of one of those report chits,
correct?
A. No, he was not.
Q. He was not.
Did you forward those report chits to the IG also?
A. I forwarded to the IG and also the equal opportunity
83
advisor after I received the 1.0 fitness report, and basically I
wanted to include those as an addendum because this was this command's
response to it.
Q. So why didn't you refer--why didn't you forward those
charges to the IG, the person who was doing the investigation?
A. I did. I just said that.
Q. You did it after the fact that you had received a poor
eval. Why didn't you do it at the time that you sent those charges up
to the chain--up the chain of command?
A. I reported it in my complaint, not a report chit, but I--it
doesn't ask--when you file an IG complaint, it doesn't ask you to
forward a report chit, you know, for whatever the complaint is, the
content, and it was the same information.
Q. Did you--you listed several individuals that you have filed
charges against. Did you ever file charges or I guess make
accusations against Rear Admiral Hering, the Commander of Navy Region
Southwest?
A. What are you asking me?
Q. I'm asking you if you ever forwarded charges or made
allegations in your IG complaint against Rear Admiral Hering, the
Commander of Navy Region Southwest?
A. No.
Q. Do you know Rear Admiral Hering?
A. Yes, I do.
Q. Have you ever worked with him?
84
A. No, I have not.
Q. Now, have you received a reply to your Congressional
inquiry?
A. It was--the last contact that I had with the Congressional
liaison was the government was to have some response back on the 9th
of April, which was yesterday.
Q. And have you received that response?
A. Their office, they will probably mail me a letter within a
week on the two on the status.
Q. So has that Congressional inquiry, the allegations you
raised in it, been substantiated or unsubstantiated at this point?
A. I don't know. I haven't received a response back yet.
Q. The DOD IG complaint of reprisal, when did you file that
complaint?
A. I filed it on the 2nd. I notified him on the 30th of March
and I submitted my formal complaint on the 14th of April, and I was
notified three months later that due to his caseload he never started
the investigation and they've since confirmed that they have violated
the time requirement, which is 180 days to complete the investigation.
Q. Is that complaint still open with that office or----
A. Yes.
Q. ----did they close it? Still open?
A. It's still open, my understanding, but there's been a lot
of--a lot of exposure to the information that I provided and a lot of
collusion because I implicated NECC in one of my complaints.
85
Q. I want to talk a little bit about the motion for docketing
and your leave. You claim that your leave had been approved by
Commander Whitsell; is that right?
A. Yes.
Q. Now, have you implicated Commander Whitsell in any of your
complaints?
A. Yes.
Q. Why is that?
A. When I first reported to REDCOM on the 29th, I--it was made
aware to me that Commander Whitsell and Commander Masi had had like a
10-year personal relationship. Commander Whitsell started asking me
very specific information pertaining to my charges, my attorney and so
forth, and even throughout the time that I was stationed over there he
kept asking me a lot of questions that he wasn't privileged to. So I
went over to SURFWAR equal opportunity advisor prior to even
contacting the IG and received--excuse me--to receive guidance from
them on how I needed to go about making a formal complaint of equal
opportunity violations. They informed me that because NECC is my ISIC
I had to make the complaint through them.
Q. So is Commander Whitsell part of your EO complaint?
A. Yes, he is.
Q. Okay. So he's one of those 11 or 13 people that you
listed?
A. Of course.
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Q. Now, you stated that your leave was disapproved. So you
never went on leave? And I'm referring to a time frame now of about
the time that it was early November when the motion for docketing was
approved. You had leave approved; that leave was canceled and you
were never allowed to go on leave, is that right?
A. For that time period of leave requested, no, I was not.
Q. What was the time--what was the amount of leave requested?
A. Ten days.
Q. And when was that leave to start?
A. Can I refer to my notes?
TC: If you can't--sir, I'd ask that the witness be allowed to
refer to her notes to refresh her recollection.
MJ: Very well.
Q. Commander, when you're done refreshing your recollection,
please look up at me and we'll proceed.
A. [Reviewing notes.] It's not in these notes here. I
believe it to be the 29th to the 11th of November. I can't remember.
Q. Okay. The 29th of October to 11th of November?
A. Yes.
Q. And where were you going to go on leave?
A. Where?
Q. Yes. Were you--would you be leaving the area?
A. Yes.
Q. And you would agree that leave is a privilege, not a right?
87
A. Of course.
Q. And that if you have a military duty, that military duty
would take precedence over leave?
A. At that time I had no military duties assigned to me.
Q. These are just general questions. You've been in the Navy
for 18 and a half years. You certainly know the system.
You would agree that a military duty takes precedence over
leave and that a command would be entitled to cancel that leave if
there were a military duty?
IMC: Sir, objection. Argumentative. He's not getting in
anything here that's helpful with this witness at this time.
MJ: Overruled.
Q. Would you like me to repeat the question?
A. No. According to Captain Harr, and he was very specific in
his e-mail, until or unless I agree to the motion for docketing, that
my leave will not be approved.
Q. Let me ask you this question because you obviously don't
want to answer my question. Would an arraignment, a court appearance,
be considered a military duty in your opinion?
A. That was not stated in his response.
Q. Commander, please answer the question. Would you consider
an arraignment, a court appearance, a military duty?
A. Yes.
Q. Now, let's talk a little bit about the Article 32. Did
Captain Sturges testify at the Article 32 hearing?
88
A. No.
Q. Did Commander Ward testify at that hearing?
A. No.
Q. Isn't it true, and I don't have the exact date, but isn't
it true at some point you showed up unannounced at the legal office of
Commander Navy Region Southwest to discuss your case?
A. I showed up on the 8th of November.
Q. And what was the purpose of that visit?
A. To request a copy of the preferred charges so I can look at
the original document which had Admiral Hering's signature on it
because the box had appeared to have been altered and----
Q. And so it was your belief that the charge sheet against you
had been forged; is that right?
A. Well, one week prior to that you had communicated to
Mr. Blevins that the Government hadn't gone forward with anything.
Q. But my question was your belief was that the admiral's
signature had somehow been forged on that document.
A. It had appeared to have been cut and pasted because I still
had the original charge sheet and there was the signature block on
Captain Sturges. The J was--there was something that was over that
and it was obvious that it had appeared to have been altered.
Q. So who do you think altered the charge sheet?
A. I don't know. I was never allowed to see the original and
she said my attorneys would have to request a discovery, and I told
her at that time I had no attorney representing me.
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Q. So is it your opinion here today that those charges aren't
lawful charges against you?
A. I was never--as far as the official notification to the
accused, you never did notify me yourself.
Q. Do you believe the charge sheet is still forged as of
today?
A. I have not hired a signature expert, so I don't know. I
was never given the original, so I don't know, Commander Messer.
Q. Do you think Rear Admiral Hering is a liar?
A. I just said I don't know whether or not the charge sheet
had been altered.
Q. Isn't it also true that you showed up unannounced at my
office to discuss the case?
A. I showed up unannounced at your office to--because I was
told by Lieutenant Robertson that I can pick up the tapes for the
Article 32 hearing, and I stated that to you.
Q. So you were in no way trying to influence the proceedings
against you?
A. At that time, Lieutenant Commander Messer, when I told you
that Lieutenant Robertson told me to pick up the tapes from you
directly, which is exactly what he told me, you appeared to have been
upset that I was in your office to pick up the tapes.
Q. It was just a yes or no question. Were you trying to
influence the proceedings against you, yes or no?
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A. No.
Q. Thanks.
Isn't it true as late as yesterday you threatened to file
an equal opportunity complaint against the XO of Naval Base San Diego?
A. In your opinion, what do you mean "threatened"? Did I
communicate that to her?
Q. Well, let's talk a little bit about it. Isn't it true that
you were to go TAD to Naval Base San Diego starting tomorrow--or
excuse me--starting today?
A. No. The TAD orders were dated the 19th of March, the day
after I received the decision from Fleet Forces Command for my appeal
for reinvestigation, and TAD orders were to be executed on the 25th of
March, which----
Q. Why weren't they?
A. ----I did, in fact--which I----
Q. Why weren't they?
A. I have a copy in my folder that--they're stamped in and I
checked in on the 25th like I was directed to.
Q. But isn't it true you've been on leave for the last----
A. What was true was before I executed the TAD orders, I
submitted a leave chit to Captain Harr requesting leave in lieu of TAD
because the bureau told me the command never received authorization to
extend me beyond 179 days and that was in violation of MILPERSMAN
and----
Q. Did you have a conversation with Commander Fish [ph], the
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XO at the Naval Base San Diego yesterday?
IMC: Objection. Relevance, sir.
MJ: Lieutenant Commander Messer?
TC: Well, sir, it goes--I'm just merely trying to establish
that anyone that the accused comes in contact with and that they
disagree or somehow not go along with what she wants, she alleges a
complaint against them. It goes to the credibility of the complaint
she's filed against the command, the original command in this case.
MJ: Sustained. You certainly can make those arguments, but----
TC: Aye, sir.
MJ: ----it would be argumentative at this point.
Q. I want to talk a little bit about the meeting you had on
the 21st of February 2007. I'll get my notes here. Who contacted you
for that meeting? Who told you to report to the commodore's office,
do you recall?
A. I did not meet with the commodore on the 21st of February.
I met with him for a budget brief the 21st. If you're referring to
the 23rd----
Q. I'm referring to the event in which you allegedly made the
statement that you did not call NC1 Lewis-Wiggan.
A. That was----
Q. Was that date on the 21st of February 2007?
A. It was the 23rd, that Friday.
Q. Okay. You say the 23rd. Let's talk about that date then
or that day in question. On that day who told you to report to the
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commodore to----
A. Commander Masi.
Q Okay. And when he told you to report, did he tell you what
was to be discussed?
A. He said "The boss wants to see you" just like previous
times.
Q Okay. Did he use--did he say anything to the effect of
"The boss wants to question you"?
A. No, he did not.
Q. So I assume you reported to his office promptly?
A. Maybe five minutes later.
Q Okay. And you stated that when you arrived in the office,
Commander Masi, the SJA, Lieutenant Commander Leshleeay or Lashleeay?
A. No. It wasn't--she was there TAD filling in for Lieutenant
Commander Marshall during her maternity leave. I can't remember her
name.
Q Okay. What was said by anyone else when you entered--I
mean, did anyone else say anything to you when you entered the room?
A. "Have a seat." That was it.
Q Okay.
A. I think the commodore said it.
Q. And then you sat down and then the commodore said something
to the effect of he had received a phone call from the CO of the
MOBILE BAY making a complaint about you; is that right?
A. His exact words were "I received a phone call from the
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commanding officer of the MOBILE BAY, a fellow O-6, and because he is
a fellow O-6 I feel obligated to look into this matter."
Q Okay. And then what did he say?
A. He said "concerning the conduct of a member of my
wardroom."
Q. Right. And did he say anything else?
A. Uh----
Q. Did he tell you to not call NC1 Lewis-Wiggan anymore?
A. He actually said "Frankly, I don't care who you call, what
you do." He said, "I'm just disturbed that a fellow O-6 called me and
your"--he said, you know, "I'm not giving you a direct order to call
anybody or not to call." He said, "I just have some concerns about
people who you choose to be your friends."
Q. Did he ever question you in any way up to that point?
A. He did not ask me.
Q. So when you--when you made the statement "I haven't called
her, I don't even want to talk to her, I can't believe this is
happening," that was not in response to a question?
A. What did I say? Did I provide a written statement?
Q. Okay. Well, let me ask you this. Is it true that you said
to the commodore "I haven't called her, I don't even want to talk to
her, I can't believe this is happening"?
A. I can't remember.
Q. And isn't it true you can't remember whether or not you
were questioned either?
94
A. I can't remember the exact content of the questioning.
Q. Now, there had been a military protective order that had
been issued to you; is that right?
A. It was signed off by Captain Wayland who was the acting
commodore at the time.
Q. And that military protective order was dated 9 January
2007?
A. Yes.
Q. And it was set to expire 10 days later on the 19th of
January; is that right?
A. I believe so. I was TAD in Korea when it had expired with
Captain Wayland.
Q. So it's your understanding that in February of 2007 that
military protective order was not in effect?
A. When I questioned--my understanding was, when I questioned
Captain Wayland as to the nature of the allegation that was made, his
comment was because Commander Marshall was there at the time showing
off her baby, said that Mei Ling stated that this woman appeared to
have been scorned, that she's looking to blame someone for her failed
marriage, primarily Sy, so we're issuing the protective order to
protect Sy from her.
Q. I'm going to interrupt you. My question was, was the
military protective order still in effect in February?
A. No, it was not.
95
Q. Let me rephrase. To your knowledge when the order expired
on 19 January, was it extended?
A. No, it was not.
Q. Let's talk a little bit--we already touched on it once
about the leave associated with it. Let's talk a little bit about the
motion for docketing.
Were you ever told by your counsel, either detailed defense
counsel or civilian counsel, that you would either have to--they would
either have to approve the motion for docketing or you would have to
be arraigned; was that ever--that process ever explained to you?
A. Like I said, I--I'm not even familiar with the whole
docketing process, so that was never even discussed. We didn't--we
didn't----
Q. So your counsel never discussed the possibility of
arraignment with you?
A. We couldn't go any farther because the Government had not
even informed us whether or not the charges had been preferred at that
time.
Q. Well, charges were referred on the 6th of November. Once
those charges were referred against you, did your counsel discuss with
you what the next step in the process would be?
A. I did not have detailed counsel after the 8th of November.
Q. Well, you had retained civilian counsel, correct?
A. Not after the 8th of November.
96
Q. But you represented at our first 39(a) session with
Commander Redcliff that you were still represented by Mr. Blevins.
A. I said "At this time I have not submitted a substitution
for attorney."
Q. So it's your testimony here today that Mr. Blevins was not
your--was no longer your attorney as of 8 November 2007?
A. Exactly.
Q. Did you ever notify the court of that?
A. I notified Lieutenant Ford that morning, and even
Lieutenant Head had stood up to indicate that he was in Lieutenant
Robertson's office the same day that Mr. Blevins had contacted him and
said "I guess she fired you, too." So the Government was well aware
that I had no detailed defense counsel in November.
Q. Now, you testified that you had told Lieutenant Robertson
not to sign the motion for docketing; is that right?
A. After the Article 32 hearing, because I questioned
Lieutenant Robertson's behavior just by getting the motions in late
and other indications that he wasn't aggressive in providing a solid
defense for me, I instructed him not to communicate with me until he's
contacted by Mr. Blevins. Then I instructed Mr. Blevins the same.
Q. Now, are you aware that after Lieutenant Robertson signed
the motion for docketing there was an 802 conference held between the
military judge, myself and Mr. Blevins?
A. Mr. Blevins indicated to me----
97
Q. The question was were you aware that there was an 802
conference.
A. No. No, I was not.
Q. And were you made aware by Mr. Blevins that at that 802
conference he agreed verbally to the motion for docketing, including
the trial dates?
A. He was not representing me.
Q. Now, you said he wasn't representing you as of 8 November,
correct?
A. I'm not sure when this 802 conference call took place.
Q. If I were to tell you this 802 conference occurred on the
7th of November, you would agree then that Mr. Blevins was still your
retained civilian counsel at the time?
A. Misrepresentation. He wasn't representing me. I mean, he
was representing me but not during this 802 because I wasn't aware of
it.
Q. So when Mr. Blevins submitted a certified letter to the
Government in March of this year saying that he had just withdrawn
from representation of you, he was lying?
A. March of 2008?
Q. That's correct.
A. A certified letter?
Q. That's right.
A. Was it provided to my defense counsel, Captain Callahan?
98
Because I'm not aware of that.
Q. I'm the one questioning you, Commander.
A. I'm not aware of it.
Q. My question was so Mr. Blevins must be lying then if he
represented to the court that he had withdrawn from representing you
as of March of 2008.
A. Yes.
TC: Thank you. I have no further questions.
MJ: Captain Callahan, follow up?
IMC: No. Thank you, Your Honor.
EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q. Commander, I just want to try and clarify some of the
statements you made. With regard to the 23rd February meeting with
Captain Sturges, who initiated that meeting?
A. He did, sir.
Q. I believe you testified that he felt some obligation to
look into this matter?
A. Yes, sir.
Q. Did he explain what he meant by "this matter"?
A. The matter was that I had allegedly contacted NCC Lewis.
Q. And did he explain what "look into it" meant, what he was
going to do, what steps he would take or anything of that nature?
A. That was his exact comment, "I'm going to have a look into
this matter."
99
Q. At that time, had you consulted with any defense counsel?
A. No, sir.
Q. Were any charges pending against you concerning the matter
with NCC?
A. No, sir.
Q. Also clarify there was some discussion about a number of
different complaints that you initiated. With regard to an EO
complaint, did you initiate a complaint against Captain Sturges?
A. I did initiate--sir, everything was included in one
complaint initially in my IG complaint in April.
Q. So it was all packaged up in the IG complaint?
A. Yes. Yes, sir.
Q. That kind of explains some of the confusion.
A. Yes, sir.
Q. Then it was broken off into separate pieces because it
dealt with different subject matter?
A. At the time I did explain to the IG investigator that it
was a whole number of different areas that it covered, EO, fraud,
waste and abuse, mismanagement, reprisal. So he said submit
everything and he'll sit down with his counterparts at Fleet Forces
Command and then they'll just assign the investigators appropriately.
Q. Then there was some discussion about making charges or
complaints against Lieutenant Commander Marshall to the admiral. Can
you tell me which admiral that was.
100
A. I'm not sure which admiral he was referring to.
Q. Can you clarify with regard to Lieutenant Commander
Marshall who were the recipients of the complaints concerning her.
A. She was included in the initial IG complaint in April.
However, sir, I received e-mail notification in January from the IG
investigator explaining to me that because he is not an attorney, that
he never did initiate an investigation about any of the attorney’s
that I had alleged in my complaint, and that was January 2008.
Q. Okay. I'd like to try and put into context the statement
apparently in response to Captain Sturges saying he was going to look
into this matter, the statement concerning any contact you may have or
did not have with NCC or NC1.
A. Yes, sir.
Q. Just the time line for that.
A. He was inquiring specifically to whether or not I had
called her the night before, not any previous contact and so forth.
Just it was alleged that you had contacted her and making harassing
phone calls.
Q. So it was about an incident that allegedly occurred the
night before you had this meeting with him?
A. Yes, sir.
Q. And he specifically mentioned harassing phone call the
night before?
A. He did say harassing phone call.
101
Q. And then did you respond to that?
A. I responded that I have not been making harassing phone
calls to NCC Lewis.
Q. And was that when he said that I'll have to look into this?
A. Yes, sir, the allegation.
Q. After you had responded to his initial statement about the
harassing call that night before?
A. Sir, at the time because the military protective order had
been issued in January I felt that there had been documents that NCC
had presented to the command, but I was not privileged to any of that
information, so I really didn't know other allegations the command was
aware of. He only specifically stated the harassing phone calls. And
according to the MPO in January, it said do not communicate with her
electronically, telephonically, personally and so forth.
Q. What I'm just trying to clarify is the timing, which
statements came first on the 23rd. Apparently he brought you to his
office.
A. Yes, sir.
Q. He said "I got this call from the CO of the MOBILE BAY"----
A. Yes, sir.
Q. ----the other O-6, and then what did he say or did you
respond?
A. "Because he is a fellow O-6, I feel obligated to look into
this matter."
102
Q. Okay. And then what? What was said by you or him?
A. I just said "By all means."
Q. Okay. And then what was said? Did he respond?
A. That was pretty much it. I mean, it was--he stated this is
what's going on and I responded and that was pretty much it.
MJ: Okay. That's the questions I have.
Captain Callahan, follow up?
IMC: Briefly, sir.
REDIRECT EXAMINATION
Questions by the individual military counsel:
Q. Ma'am, just to clarify, the complaint--the allegation of
violations of the UCMJ that you made on Lieutenant Commander Marshall,
those were forwarded up to Captain Sturges, not to an admiral,
correct?
A. Yes.
IMC: Thank you, ma'am.
Nothing further, sir.
MJ: Commander Messer?
TC: Nothing further, sir.
MJ: Commander, thank you for your testimony.
ACC: [Resuming seat at counsel table.]
MJ: I think this would be an appropriate time to take a brief
recess. If we could reassemble at 1100. And if we have additional
witnesses, have them standing by at that time. Court stands in
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recess.
[The session recessed at 1054 hours, 10 April 2008.]
[The session was called to order at 1107 hours, 10 April 2008.]
MJ: Back on the record.
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: Captain Callahan, any other additional evidence to present
on the motions?
IMC: Sir, I'd just request that the Court consider the
documentary evidence attached to all the motions.
MJ: Very well.
IMC: And that is it, Your Honor.
MJ: Any objection from trial counsel?
TC: No objections, sir.
MJ: Very well. Evidence from the prosecution on the motions or
your responses?
TC: Yes, sir. At this time the Government would call Captain
Sturges.
MJ: Very well.
TC: He's a telephonic witness, sir.
MJ: Any objection from the Defense to calling Captain Sturges
telephonically?
IMC: No, Your Honor.
MJ: Very well.
104
CAPTAIN JOHN B. STURGES, III, U.S. Navy (Retired), was telephonically
called as a witness for the prosecution, was sworn, and testified as
follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. I'd ask that you not have any notes or materials in front
of you.
A. Okay.
Q. Sir, for the record, could you please state your full name,
spelling your last.
A. John Bellow [ph] Sturges, III, S-T-U-R-G-E-S.
Q. And, sir, are you currently in the Navy?
A. No, I'm not.
Q. Are you retired?
A. Yes, I am.
Q. When did you retire from the Naval Service?
A. Effective 1 December 2007.
Q. And where are you currently employed?
A. At Booz Allen Hamilton in San Diego.
Q. And, sir, briefly before we get into the substance of my
questioning, how long did you serve in the Navy?
A. A little over 30 years.
Q. And during that time, did you come to know the accused in
this case, Lieutenant Commander Penland?
105
A. Yes, I did.
Q. How so?
A. She was my supply officer in Naval Coastal Warfare Group
ONE.
Q. How long did she work for you?
A. I want to say maybe between a year, year and a half.
Q. And what type of interaction did you have with her during
that period?
A. I would--we'd exchange e-mails fairly routine, but I'd
probably see her maybe once a week, probably more once every other
week or so. She would also have to come up and brief me periodically
on some of her required reports on a monthly basis.
Q. How big a command is Naval Coastal Warfare Group ONE?
A. Naval Coastal Warfare Group ONE is actually about 3,000
people. The staff itself is probably about 75 now.
Q. And on that staff approximately how many officers are of
rank O-4 or above just in general terms?
A. Yeah, probably 10 to 12.
Q. Okay, sir. I want to discuss a specific incident with you.
Do you recall a meeting that occurred with Commander Penland on or
about 21 February?
A. Yes, 2007.
Q. Do you remember the exact date of that meeting?
A. No. But I think that's--that was approximately correct,
though.
106
Q. Who was present at that meeting?
A. My chief staff officer, Commander John Ward; Commander Matt
Masi who was the logistics officer; and we also had Lieutenant
Commander Kristen McCarthy who was actually my acting Judge Advocate
General at the time; and Lieutenant Commander Penland.
Q Okay. And why were those other people present?
A. I had the chief staff officer there because I wanted to
have my second in command present for this discussion and I had
Lieutenant Commander McCarthy there to ensure that--you know, that
this--so the discussion was captured properly in case there were any
type of legal proceedings that needed to happen down the road at some
time or, you know, again just to make sure, you know, things went
properly. And then I had Commander Masi there because he was
Commander Penland's department head.
Q. Now, what was the reason for this meeting?
A. I had been called by the commanding officer of MOBILE BAY
who had a petty officer there--or I'm sorry--NC1 Lewis-Wiggan.
Previously we had had some indications that Commander
Penland had been talking to her and actually we had issued a
protective order to keep Commander Penland away from her. There were
indications that Commander Penland and Wiggan's husband were having an
affair. Wiggan-Lewis [sic] had asked that Penland leave her alone and
not call her, and so we had actually issued a protective order in
January of that year to prevent her from doing that. The protective
107
order expired.
My expectation obviously was that, you know, that Commander
Penland wasn't going to call her anymore, but then I got a call from
the CO of MOBILE BAY indicating that Lieutenant Commander Penland had
indeed called Petty Officer Wiggan-Lewis back again----
Q. Chief, I'm sorry.
A. ----or Lewis-Wiggan back again.
Q. Sir, I'm sorry to interrupt. Do you remember when you
received that call from the commanding officer of USS MOBILE BAY?
A. It was probably just before I had Commander Penland up to
my office because I was pretty annoyed by it.
Q. And what was your thought process behind having Lieutenant
Commander Penland come to your office?
A. Well, my direction to Commander Penland was going to be
that I wanted her to stop calling this Petty Officer and stop
bothering her. I mean, that's really what my objective was. I think
that every commanding officer has the right to expect their Petty
Officers to work--or their Sailors to work in an environment that's
conducive to good order and discipline and obviously this Petty
Officer was being troubled by a Lieutenant Commander at my command.
So I thought it was--the correct thing to do was to talk to Commander
Penland and direct her to stop calling this person.
Q. Did you in any way intend to question her about her
actions?
A. No. My intent was to direct her to stop calling her.
108
Q. Okay. So let's get to the actual meeting. Once Lieutenant
Commander Penland entered your office, what occurred?
A. Well, she sat down and I told her that, you know, a
Commanding Officer, a cruiser CO of the MOBILE BAY had called me and
indicated that she had--that Commander Penland had called Petty
Officer Lewis-Wiggan back again, and that I told--I said, "I don't
want that happening anymore." I said, "You know, you're dragging us
into your personal life and, you know, this Petty Officer has asked
you to stop calling her and I want you to do that," at which time
Commander Penland protested and said "I didn't call her."
Q. So her statement "I didn't call her," I mean, were those
her exact words?
A. It's something similar to that.
Q. Did she say anything else besides "I haven't called her"?
A. Well, I don't recall if she said anything else or not. My
question back to her, I said, "So you're telling me you didn't call
her?" And she said, "No, sir, I did not call her."
Q. Okay. So let's stop for a minute there. When she made the
statement I haven't called her, was that in response to a question
from you?
A. No. She just threw that out.
Q. But then after she made that statement, then you did ask
the question "So you're saying you didn't call her?" Right?
A. Yeah. I just wanted to make sure that that's what she
109
meant to say because obviously I had conflicting information now
from--I said the CO of MOBILE BAY is telling me one thing, now she's
telling me something else. "So I just want to confirm, hey, that's
what you're telling me, right, you didn't call them?"
Q. Now, sir, did she respond to the question?
A. Yes, she confirmed again that she had not called.
Q. What happened after that?
A. Commander McCarthy had stopped us and indicated it was
appropriate at that time that Commander Penland be given her rights.
Q. Was Commander Penland read her rights at that time?
A. I don't know if she was read her rights exactly at that
moment or not. But I remember kind of the closing of the meeting that
I told Commander Penland that we were going to have to investigate
this because I now had conflicting information.
Q. Okay. And did you, in fact, authorize an investigation
into the matter?
A. Yes, I did.
Q. And what was the reasoning behind starting the
investigation?
A. Well, I thought first of all Commander Penland had lied to
me. I didn't have any reason to think that the Commanding Officer of
MOBILE BAY was lying, nor did I have any reason to think that Petty
Officer Lewis-Wiggan was lying, as well. And, you know, I had had
some--a few doubts about Commander Penland's ability to tell me the
truth, so I thought there was certainly reason to start digging into
110
this and find out exactly what was going on with the situation.
Q. Did you suspect Lieutenant Commander Penland of lying,
however, prior to the meeting?
A. About what?
Q. Well, about this incident. You wouldn't have and that you
had no other communications with her, correct?
A. Well, I mean, we--as I said, we had spoken before about
other things and, you know, she had received a letter of instruction
from me and things. So there were a lot of various things going on
with Commander Penland at my command at the time and so this was just
one more thing that kind of caused me to think that I probably wasn't
getting the full story from her that I needed.
Q. Okay, sir. I'm going to move on now to another issue
that's been raised in this case which is allegations against you and
other people at the command of unlawful command influence in this
proceeding. Let me start by just asking you some general questions as
to your relationship to certain people.
What is your relationship to Rear Admiral Hering, Commander
of Navy Region Southwest?
A. Other than being located in his region, I really don't have
much of a relationship to him. He's a regional commander and I just
happen to be a command located in his region. I don't really work for
him directly.
Q. So you're not in Rear Admiral Hering's chain of command?
A. No. I work for--or I worked for Third Fleet on the
111
operational side; Navy Expeditionary Combat Command was my admin
commander.
Q. Have you ever had any discussions with Rear Admiral Hering
about Lieutenant Commander Penland's case?
A. None.
Q. Have you ever had any discussions with Rear Admiral Hering
about Lieutenant Commander Penland in general?
A. No.
Q. Now, it's been alleged in Defense's motion that--well, let
me ask you this, sir. Do you have an interest in the outcome of this
court-martial?
A. Only from the sense of good order and discipline. I think
there's some accountability issues with Commander Penland's behavior.
And again so just, you know, when I was serving and now I think, you
know, those of us who serve or have served in the Navy want to be
respectful employees and a place where officers are looked up to for
doing the right thing and I'd say so from that aspect, I'd say from
the good order and discipline aspect from the command when I was there
I thought it was important that we get to the bottom of it and, you
know, and provide some accountability to the behavior.
Q. Do you have any issues with Lieutenant Commander Penland on
a personal level?
A. No.
Q. Now, have you been implicated by her in any complaints?
A. Yes.
112
Q. Which complaints, sir?
A. I think there was some allegations against the command
about some supply--how some business was conducted down in the Supply
Department. There was sexual harassment complaints. There was also
race complaints to----
Q. Let me interrupt you, sir. Do you know anything about an
equal opportunity complaint?
A. Yes.
Q. Were you a named complainant in that complaint?
A. I don't believe I was.
Q. Do you know if that complaint has been resolved?
A. Yes, it has.
Q. And how was it resolved?
A. There was a finding of there was no validity to the
complaint.
Q. Are you aware of an IG complaint filed by the accused in
this case?
A. Yes.
Q. Do you know the status of that complaint?
A. I believe it's resolved, but I'm not sure. Again, I've
been kind of removed from it for a while.
Q. Are you aware of any Congressional inquiries in this case?
A. I didn't see any Congressional inquiries while I was there,
so I--I know I had heard that she had written a letter to her
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congressman or her mother had written a letter to a congressman, but I
never saw anything again while I was there, nor did I hear anything
that came after I left.
Q. Now, Defense has taken issue with the fact that both
convening orders for the Article 32 investigation in this case were
signed by Commander Ward. Do you know anything about that?
A. No. Commander Ward and I talked about everything that went
on with respect to Commander Penland and I directed him to do
everything that he did. It was just a matter of circumstance and it
happened to be that I was on travel during the time that some of these
documents were prepared and had to be signed, so he signed them
acting--as acting commander in my absence.
Q. So you were in no way trying to distance yourself from this
case by having your XO, if you will, or your chief of staff sign as
acting in those cases?
A. Not at all.
Q. Do you know anything about Lieutenant Commander Penland's
leave being canceled around the time frame of November 2007 in
response to her not entering into a motion for docketing?
A. No. No, I don't recall that being discussed. Did you say
November 2007?
Q. That's correct, sir.
A. Yeah, I was--I left the command in September 2007, so I----
Q. Yes, sir.
A. I can't speak to that.
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Q. Sir, there was an Article 32 investigation held in this
case on the 24th of August. Did you testify at that hearing?
A. I can't recall.
Q. Just a moment, sir. I'm going to look through my notes,
sir.
A. Okay.
Q. When you were Commander of Naval Coastal Warfare Group ONE,
was it a common practice within your command to withhold people's
leave or threaten to cancel their leave in order to achieve a means?
A. No, not that I was aware of.
Q. Would you consider such behavior appropriate?
A. Well, I think it depends what the means was. You know, I
think--you know, I certainly want to see people take all they were
entitled to and I think we worked hard to make that happen. But I
would also say again I think that would be very circumstantial. I
mean, it would have to be a pretty extreme case for me not to allow
somebody to go on leave.
Q. In your career, have you ever seen someone's military leave
canceled because of a military duty?
A. Maybe once or twice. Very rarely like I said.
Q. In your opinion, would you consider being present at your
own court-martial a military duty?
A. I would think that would be a requirement, but I'm not sure
from a--I'm not sure from the law aspect of that, but it would seem
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like it would be the right thing to do.
TC: All right, sir. I don't have any further questions for
you. I'm sure defense counsel does, so I'd just ask you to remain on
the line.
WIT: Okay.
MJ: Captain Callahan.
IMC: Thank you, Your Honor.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good morning, sir. Can you hear me?
A. Yes, I can. Good morning.
Q. Sir, it's Captain Callahan, Marine Corps type. I am
representing Lieutenant Commander Penland as her defense counsel.
A. Okay.
Q. I have just a few questions for you, sir.
First of all, are you aware of charges that Lieutenant
Commander Penland made against other members of Naval Coastal Warfare
Group ONE and forwarded to you for your action on those charges?
A. Yes.
Q. Did those allegations include charges against your chief
staff officer, Commander Ward?
A. Yes.
Q. And did they also include allegations against Lieutenant
Commander Marshall?
A. Yes.
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Q. What action did you take on those charges, sir?
A. As I recall, I think we forwarded those actually over to
NECC and they were going to take a look at it. I think in the end
they decided that those charges weren't worth going after.
Q. Do you know whether or not any investigation was ever
opened on those charges or whether or not Lieutenant Commander Penland
was even questioned about the evidence she had for those charges?
A. I don't recall. I think--again I think the JAG, Commander
Jim Rozzi [ph], I believe, forwarded those over to them. I think he
basically used previous investigations to determine if there was any
validity to any of the charges. I think, in his personal opinion, he
decided there was not, so I don't know if Lieutenant Commander
Penland--if any of that was discussed with her or not.
Q. Sir, in regards to the allegations that Commander Penland
has made against you, she said she's made allegations dealing with
supply issues, with racial discrimination issues and with sexual
discrimination issues. Is that correct, sir?
A. Yeah. And again I don't recall if those were actually made
against me or not, but those were the types of things that were made,
if not directly to me, to members of my command.
Q. How would you feel if an investigation substantiated a
complaint against you that you had racially discriminated against
someone?
A. I would be disappointed in myself.
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Q. And how would you feel if it was substantiated that you had
sexually discriminated against someone?
A. I'd feel disappointed in myself again. I hold myself to a
very high standard, so that's not something I would expect to have
happen and if I or my command was having problems in those areas, then
I would take it very seriously.
Q. So it would be very important to you, sir, that something
like that not happen, correct?
A. Exactly.
Q. Are you aware that the equal opportunity complaints are
currently under review from SECNAV, sir?
A. I had heard that, yes.
Q. Sir, if I can bring your attention specifically to the
conversation you had with Lieutenant Commander Penland back in
February of '07.
A. Okay.
Q. Sir, isn't it true that when she's confronted with
allegations, she routinely responds to those allegations and very
vigorously defends herself?
A. Generally that is true.
Q. And that had been her practice ever since her time at the
command when this sort of stuff was coming up; isn't that also true?
A. Yes.
Q. Are you sure she said that she did not call Petty Officer
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Wiggan? Could she maybe have said she didn't call and harass her?
Could she maybe have said she didn't call her last night? Could she
have said she didn't call her during the time the military protective
order was issued?
A. No. Because this was actually after the military
protective order had expired. So, no, she very clearly stated, you
know, as I recall to the best of my recollection that she did not call
Petty Officer Wiggan.
Q. And was it the commanding officer or the executive officer
of the MOBILE BAY that called over?
A. The CO called me. My chief staff officer may have been
called by the XO.
Q. And, sir, isn't it true that you issued a military
protective order previously instructing Lieutenant Commander Penland
not to have contact with this woman partially because of issues of
allegations that she was having an affair with the petty officer's
husband?
A. That's correct.
IMC: Thank you, sir. No further questions.
ACC: Okay.
MJ: Lieutenant Commander Messer?
TC: Just briefly.
[END OF PAGE]
119
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. Sir, Lieutenant Commander Messer again.
In your time in command of Navy Coastal Warfare Group ONE,
did you have any other sailors file equal opportunity complaints?
A. Nobody filed a complaint. We did have one chief petty
officer had a--had a--what I would term an insensitive racial remark
posed to him by another chief petty officer and we took appropriate
action in that case, but that was the only one that I recall happening
while I was at the command.
Q. And this is a command of 3,000 people?
A. That's correct.
Q. Did you have any of your subordinates file IG complaints?
A. Yeah, there were a couple. Well, not IG complaints but
Congressionals.
Q. And were there any other complaints of sexual harassment
other than those raised by Commander Penland?
A. No. And when I say there's 3,000 people, it's not like an
aircraft carrier. They're--you know, there's multiple subordinate
commands inside Naval Coastal Warfare; so, you know, just to kind of
clarify that, you know, I don't reach out and touch 3,000 people every
day as a commander. You know, I kind of have a staff and then there
are other subordinate commanders, commanding officers.
120
Q. But those complaints would come through your office,
correct, sir?
A. Oh, yes.
TC: Thank you, sir. I have no further questions.
WIT: Okay.
MJ: Captain Callahan, anything further for this witness?
IMC: Briefly, please, sir.
MJ: Very well.
RECROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good morning, sir. It's Captain Callahan again.
A. Good morning.
Q. Sir, were you aware of Lieutenant Commander Penland's
previous accomplishments in her career before reporting in to your
command?
TC: Sir, this is outside the scope of redirect.
IMC: Sir, it goes directly to--he's raising and insinuating that
Lieutenant Commander Penland does nothing but run around and make
complaints against everybody, and I'm trying to point out that prior
to reporting into this command Lieutenant Commander Penland had been a
very successful officer and there's no history of complaints being
raised before this.
MJ: I'm not sure the witness would have a basis for that, but
you can ask him in terms of his opinion about what he believed her
prior performance was.
121
IMC: Thank you, sir.
Q. Sir, did you have any knowledge of Lieutenant Commander
Penland's prior service before reporting in to you?
A. I had heard she was a very good--very good officer and a
very good supply officer. That was kind of the limited--you know, you
don't see officer fitness reports. And, as I recall, she came from a
ship on the East Coast, so I wouldn't have really known her personal
reputation very much. But again from what I generally collected I
thought that she came as a good officer.
IMC: Thank you, sir.
Nothing further, Your Honor. Thank you.
MJ: Lieutenant Commander Messer?
TC: Nothing further, sir.
[The witness was duly warned and temporarily excused telephonically.]
MJ: Further evidence from the prosecution in response to the
Defense motions?
TC: Yes, sir. At this time the Government would request a
brief recess in place so I may find my next witness. It will be
Lieutenant Commander Marshall.
MJ: Very well.
TC: All rise.
[All persons did as directed.]
MJ: Carry on, please.
[The session recessed at 1134 hours, 10 April 2008.]
122
[The session was called to order at 1135 hours, 10 April 2008.]
MJ: Court is called back to order. Let the record reflect that
all parties present prior to the recess are again present before the
court at this time.
LIEUTENANT COMMANDER MEI LING A. MARSHALL, JAG Corps, U.S. Navy, was
called as a witness for the prosecution, was sworn, and testified as
follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Would you please state your full name, spelling your last
for the record.
A. My name is Mei Ling Amoy [ph] Marshall. My last name is
spelled M-A-R-S-H-A-L-L.
Q. And, Commander, please state--or are you currently in the
Navy?
A. I am.
Q. What is your current duty station?
A. I am stationed as the staff judge advocate at Maritime
Expeditionary Security Group ONE.
Q. How long have you been in the Navy?
A. I've been in the Navy almost 15 years. I attended four
years of Annapolis; it doesn't count. But 15 active duty.
Q. How long have you been at Navy Coastal Warfare Group ONE?
A. Almost three years.
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Q. And what is--is that the proper name of the command now?
A. It is. There was a name in--I think it was October. We
used to be Naval Coastal Warfare Group ONE.
Q. And what is the current name of the command?
A. Maritime Expeditionary Security Group ONE.
Q. And how long have you been at the command?
A. Almost three years.
Q. Almost three years.
Do you know the accused in this case, Lieutenant Commander
Penland?
A. I do, professionally.
Q. How do you know her?
A. She was the assistant supply officer at MESG ONE--well,
NCWG ONE.
Q. And what type of interaction did you have with her?
A. My interaction with her was limited to at work--at work
interactions. We never had any personal relations or any kind of a
personal relationship. We had one interaction outside of the work
place; it was at the IVAR [ph] following a commanders conference in
February 2006, I think.
Q. Would you say that you worked with her on a daily basis?
A. I didn't interact with her on a daily basis. I mean, we
both showed up at work and I would see her, but my interactions with
her were typically limited to when she would seek me out.
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Q. Okay. I want to start by discussing the time line of this
case and your involvement with it and your knowledge of it.
To your knowledge, how did this case begin?
A. The court-martial case, the NJP case or the situation in
its entirety?
Q. Well, let's start with just this court. So when were
charges preferred in this matter?
A. On or about June 5th, 2007.
Q. And what happened after charges were preferred? Was there
an Article 32 ordered?
A. There was. An Article 32 order was signed on or about June
6th, 2007 setting the Article 32 for on or about June 28th, 2007.
Q. Were you present at the 28 June Article 32 hearing?
A. I was.
Q. Was there anything significant about that hearing? Well,
let me ask you. Did that hearing occur?
A. The hearing convened in that the IO, you know, began, said
that it would convene, but nothing of substance was discussed and no
evidentiary matters were presented because, as a matter of
housekeeping, Lieutenant--I think he was a Lieutenant Commander Select
at the time--Stephens said that he needed to withdraw from the case
because he had been named as a respondent in an equal opportunity
complaint filed by Lieutenant Commander Penland on or about the 22nd
of June.
125
Q. So who was the investigating officer for that hearing?
A. Lieutenant Commander Ken Ion [ph].
Q. Do you know his current duty station or his duty station at
the time?
A. I believe he was the SJA on the REAGAN.
Q. When you say "REAGAN," you mean USS REAGAN?
A. Yes, yes. He's the--he was the staff judge advocate on
USS REAGAN.
Q. And to your knowledge, did he have any involvement with
your command prior to this case?
A. No.
Q. So in your opinion would he have been a neutral and
detached investigating officer?
A. Yes.
Q. What actions did Lieutenant Commander Ion take when he
learned that Lieutenant Commander--well, Lieutenant Commander Select
Stephens was withdrawn as detailed defense counsel for the accused?
A. He asked some, you know, basic questions about what was
going on and then he talked--I believe he talked directly with the--
with the accused and asked if that was her wishes and had she
identified anyone else as her counsel. She said no, she had not, that
she had a civilian counsel but refused to provide his name and he
wouldn't be available till August, so she wanted a continuance until
she could get counsel orders in--counsel affairs in order.
126
Q. Were there any other indications leading up to this hearing
that the Defense was not prepared to go forward on the 28th of June?
A. No. As I understood it, they were prepared to go forward.
The first time I began to suspect that the hearing would not go
forward was on or about the 21st of June; it would have been--oh, I
don't know if it was the 21st. It would have been a Friday, maybe the
24th, whatever Friday is, in that area from the 24th to the 25th, when
I learned that an equal opportunity complaint had been filed by
Lieutenant Commander Penland on or about the 22nd of June.
On Monday, that SITREP had hit the street and we knew that
there were approximately 12 respondents, didn't know that it was the
defense counsel but learned it later that Monday; and once the defense
counsel was listed as a respondent, I began to tell the chain of
command that I suspected that there would be a change in counsel.
Q. So at the 28th--or 28 June hearing the accused was present
but with her counsel withdrawn.
A. The accused was the only person present at the defense
table. The counsel sat in the back of the room, you know, in the
gallery area. He and she did not consult with respect to
representation. He just said that he was putting his withdrawal on
the record.
Q. Do you remember any discussions as to excludable delay at
that time?
A. Yes, the trial counsel, you did, brought up the issue of
excludable delay and I don't recall if there was an absolute
127
determination, but it was the notion that the Defense was requesting a
continuance was discussed at length. I could look it up in my notes.
But my understanding was that the Defense was requesting a continuance
and delay would be attributed to the Defense.
Q. Now, following this hearing, was there another Article 32
scheduled?
A. Yes.
Q. What was the date of that hearing?
A. Oh, I believe that the second Article 32 hearing was
scheduled for on or about the 30th of July. Counsel was--immediately
following the 32, a new counsel was requested from NLSO Northwest.
Q. Why was that?
A. Oh, because----
Q. Why not from NLSO Southwest?
A. NLSO Southwest's CO believed that with Lieutenant Commander
Lashleeay and--this is my understanding is the CO said that no other
counsel would be appointed from NLSO Southwest because Lieutenant
Commander Stephens was the Senior Defense Counsel and so that
conflicted out all of his defense counsel; and also Lieutenant
Commander Lashleeay, who I don't know if she was active duty,
mobilized or reservist, I don't know how she was assigned to the NLSO,
had also been named as a respondent in the equal opportunity complaint
and so the CO decided that there would be no one else assigned from
NLSO Southwest.
128
Q. To your knowledge, what was Lashleeay's relationship with
the accused?
A. My understanding is that she was a pers. rep. attorney.
When the case was pending NJP in early March and, you know, during the
investigation, Lieutenant Commander Penland had contacted Lieutenant
Commander Lashleeay to discuss the options. So she was a pers. rep.
attorney. I don't think that she was ever detailed to the case.
Q. So subsequent to the first attempted Article 32 on 28 June
and before 30 July 2007, the scheduled date of the second Article 32,
to your knowledge was counsel assigned from NLSO Northwest?
A. Yes. And I don't remember the date that it was assigned.
Again I could look in my notes. But it was probably about seven to 10
days after the request was--I'm sorry. It was on or about the 5th of
July. On or about the 5th of July counsel was detailed to Lieutenant
Commander Penland and I----
Q. Do you remember the name of that counsel?
A. That person was Lieutenant Robertson.
Q. And did the Article 32 on 30 July occur?
A. No.
Q. Why not?
A. It was rescheduled till on or about the 24th of August
because that's when Mr. Blevins--as I mentioned before, no one knew
who the civilian attorney was because Lieutenant Commander Penland
refused to give that name to anyone other than her detailed military
counsel. So she provided it. As I understand, she provided it to
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Lieutenant Robertson. Mr. Clifton Blevins stepped up to the plate and
his calendar was such that he didn't want to have a 32 until on or
about the 24th of August. I think he originally discussed on or about
the 16th of August, but it was moved to the 24th of August and he
submitted an excludable delay request for that.
Q. So leading up to the 30 July Article 32, was there a
request for continuance from the Defense?
A. Up from the 28th of June to the 30th of July?
Q. No. Well, was there a request from the Defense before 30
July to continue the 30 July scheduled Article 32?
A. It was a verbal--it was a verbal excludable delay request
with the excludable delay request being submitted formally on or about
the 24th of August.
Q. And to your knowledge, did the Convening Authority approve
that request?
A. He did.
Q. How so?
A. I don't know if it was verbally or in writing; I don't
recall. But he was aware of it and he knew.
Q. Did the Article 32 go as scheduled on the 24th of August?
A. Yes.
Q. Were you present at that hearing?
A. Yes.
Q. Do you recall, did Captain Sturges testify at that hearing?
A. No.
130
Q. Did Commander Ward testify at that hearing?
A. No.
Q. After the Article 32 hearing was held on the 24th of
August, do you recall roughly when the case was then--when the 32
report was received by your command?
A. The report received--was received on or about the 12th of
September without enclosures. It was received on or about the 24th of
September with enclosures.
Q. And then what did your command do with that report?
A. Referred it to the Region recommending--I'm sorry.
Forwarded it to the Region recommending that it be referred to a
general court-martial, and that occurred on or about the 2nd of
October.
Q. And when you say forwarded to the Region, you're referring
to Commander Navy Region Southwest?
A. Yes.
Q. And that would be Rear Admiral Hering?
A. Yes.
Q. Is Rear Admiral Hering in the direct chain of command of
Naval Coastal Warfare Group ONE?
A. No.
Q. Why then was the case forwarded to Navy Region Southwest?
A. There was a memorandum of understanding that local general
court-martial convening authorities will handle general court-
martials. We have a general court-martial convening authority in our
131
chain of command; he is our ISIC and he's Navy Expeditionary Combat
Command. But because we are here in the Navy--in the Southwest
Region, our Southwest Region cases are referred to CNR SW in Guam.
Our cases are referred to the Marianas Region Commander.
Q. So Commander Navy Region Southwest has no actual control of
your command?
A. None.
Q. And when were--and then what was the result after the case
was forwarded to the Region?
A. There was some discussion that the Region had been backed
up, but they would get to the referral, you know, issue as soon as
possible. On or about the 19th of October I understood that the case
had been referred, but later learned that it was--it had been referred
at a later date. I think it was on or about the 6th of November. I'm
not a hundred percent sure about those dates. But I believed as early
as the 19th of October that the case was pending imminent referral.
Q. Was--at the time the case was referred on the 6th of
November, did the Government have any speedy trial concerns?
A. Absolutely. I mean, June 5th to November 6th is a speedy
trial issue just waiting to happen.
Q. So it was in the Government's interest to either arraign or
have a motion for docketing approved----
A. Actually the Government had and our command had speedy
trial concerns. We believed that most of those would be--that the
concerns were not substantial because of the excludable delay and the
132
record would reflect that the delay was attributable to the Defense,
not to the Government's lack of due diligence. All that said, it's a
better safe than sorry measure. So if you look at speedy trial clock
without excludable delay by November 6th, you know, there are some
concerns.
Q. But, in your opinion, the Government was cognizant of the
speedy trial clock and wanted to get the case to trial as soon as
possible?
A. Oh, yes, definitely.
Q. Now, a motion for--are you aware that a motion for
docketing was approved in this case?
A. Yes.
Q. And when was that?
A. I don't remember the date. It was mid November.
Q. If I told you the day after the charges were referred, 7
November, does that sound right?
A. Absolutely.
Q. Now, are you aware of anyone from Navy Coastal Warfare
Group ONE telling the accused in this case that her leave would be
canceled if a motion for docketing were not approved?
A. No. It's not--it wasn't contingent upon the motion for
docketing being approved. It was case management order matters being
discussed with the trial counsel. Mr. Blevins had made himself
largely unavailable. We were looking at speedy trial clock and needed
to get the member arraigned or have a motion for docketing that would
133
stop some of those issues and some of those concerns. The leave chit
in its entirety at the bottom says that the leave was disapproved
pending court-martial matters, matters, you know, relating to court-
martial. It didn't say that, you know--it wasn't a positional--the
position taken wasn't get that motion for docketing in. The position
was--the principle was let's address these court-martial issues.
Q. Was the command aware that if an arraignment were to be
scheduled, that the accused would need to be present at that hearing?
A. Yes. And I called you and discussed this with our ISIC SJA
about when that arraignment would occur, and it would have occurred
during--you know, probably would have occurred during that time. That
was the guesstimate. The docket was full, but the sense of urgency
was high.
Q. So to your knowledge, the Government was prepared to hold
an arraignment if the motion for docketing were not approved by
Defense?
A. Yes.
Q. Are you aware of any imposition or difficulty that would
have prevented the Government from arraigning the accused?
A. The only issue that I was aware of is--would have been her
absence or the docket being too full, but I think that we could have
fit in an arraignment. So I don't know of any other obstacles.
Q. In your experience, as the staff judge advocate for Naval
Coastal Warfare Group ONE, does the command often use the threat of
canceling leave to try to achieve some kind of nefarious scheme?
134
A. The command has never, to my knowledge, used the threat of
leave or other administrative matters that are entitlements as a
scheme to effect a nefarious agenda.
Q. Now, I want to move on and discuss the Defense's unlawful
command influence motion with you. Let me just take a look at my
notes here. [Reviewing notes.]
Have you been implicated by the accused in any complaints?
A. In lots of complaints. Every complaint she's filed has
implicated me.
Q. So in the EO complaint?
A. Yes.
Q. IG complaint?
A. Yes. I'm sorry. I take that back. One of her IG
complaints is a reprisal complaint. I'm implicated in that. One of
her complaints is a fraud, waste and abuse--one of her IG complaints
is a fraud, waste and abuse and I don't think I've been implicated in
that one.
Q. Were you implicated in her Congressional inquiry?
A. Yes.
Q. Why are you implicated in all these complaints?
A. There's another one that's out there. It's a report of
offenses that she filed on or about the 14th of August where she
signed out 1626/7's which are NJP report chits, and so I'm the subject
of that investigation, as well.
135
Q. Now, that was part of the IG complaint, though, correct?
A. No.
Q. No. It's a separate----
A. It was an enclosure, yes.
Q. And to your knowledge, was any action taken by the command
on those report chits?
A. Yes. It was forwarded to our GCM CA for review. It's an
administrative matter. It didn't go to the Region. It went to NECC.
Q. Now, to your knowledge has the equal opportunity complaint
been resolved?
A. Yes, but I don't have confirmation of that. I have reason
to believe, and it's reliable evidence, that the--that CFFC has signed
out a forwarding endorsement concluding that the investigation is--or
that the allegations were unsubstantiated, but I have not seen CFFC's
forwarding endorsement. My understanding is that the case is going to
be appealed, meaning that it's going to--the complainant has asked for
SECNAV review of the matter. So, as far--the answer is, as my
understanding, is it's not complete, but it is complete through CFFC.
Q. How about the status of the IG complaint, the reprisal
complaint, has that one been resolved?
A. I don't know the status. I know that it's supposed to have
been forwarded to FFC, but I haven't seen the forwarding endorsement
from NECC. My understanding is that the fraud, waste and abuse
complaint has not yet been forwarded to NECC.
136
Q. Why is it that you have been implicated in these different
complaints by the accused? Do you have an opinion as to that?
IMC: Objection. Speculation.
MJ: Overruled.
WIT: I have several opinions.
Q. It would be easier if we could go by each complaint.
A. Well, I think that from an objective perspective the staff
judge advocate, as an adviser to the commander and the CSO, is a
natural--you know, natural target. I have heard that Lieutenant
Commander Penland doesn't like me and that she thinks I'm jealous of
her and so believes that I have been out to get her.
Her equal opportunity complaint alleges that I was jealous
of her and put her through some rigorous female initiation rights upon
entry to the command and that because she wasn't one of the favored
few, including by me, she was, you know, not well liked within the
command.
I think that there are objective reasons that Lieutenant
Commander Penland has implicated me and I think that there are far
fetched subjective reasons why she's implicated me. I think part of
the reason that she's implicated me is because I don't see things from
her perspective.
Before this went to--before she--on or about the 12th of
March--I got back to work on or about the 8th of March from maternity
leave. On or about the 12th of March, which is the day before the
investigation--the preliminary inquiry investigation was completed--
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I'm sorry. Let me correct those dates. I got back to work on the 5th
of March which was a Monday.
Q. Uh-huh.
A. On or about the 8th, which was either a Thursday or a
Friday, before the investigation was complete and before Lieutenant
Commander Penland was provided a copy of it, and she was provided a
copy of it on or about the 13th because she was going on leave on or
about the 14th, she came to me asking if I knew about the
investigation and I told her I did; I hadn't seen it, I hadn't seen
the evidence. I didn't know what the preliminary--you know, I didn't
know, but she would get a copy of it. She told me she was going on
leave, could I please make sure she had a copy of it. I said yes.
And she said, "Well, I've been thinking about making some complaints
against this command." I said, "Well, you need to talk about this
with one of your pers. rep. attorney’s." And she said, "Well,
actually you're a witness to one of these problems." And I said, "I'm
a witness? I don't--I don't believe I'm a witness to anything." She
says, "Well, remember the time that"--and I said, "No, that's not how
I recall the particular incident." And so I think that's part of the
reason that I'm a respondent is because I'm not a witness.
Q. What about your personal interests in this case and these
complaints; do you have any personal interest in seeing Commander
Penland being convicted at this court-martial?
A. I have lots of personal interests. I just went through a
commanders' board. My record is flagged because I have a reprisal
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complaint against me. My understanding is that there will likely be a
bar complaint about me and a complaint to the judge advocate general
about me. So, yes, I have personal interests. But none of those
impact my professional behavior. All of those interests arose after
this course of action began. All of those interests came when
Lieutenant Commander Penland responded and attacked people personally
when she was having disciplinary action taken against her. So do I
have personal interests? It would be dishonest to say that I don't.
But I don't have a personal agenda. My agenda is professional.
Q. In your opinion from what you've seen working at the
command, has anyone else within the chain of command demonstrated a
personal agenda, if you will, against Lieutenant Commander Penland?
A. No. No one has a personal agenda. Everyone has personal
interests because all of our careers have been implicated. Captain
Sturges wondered if he'd be allowed to retire. Commander Ward
wondered if he'd be allowed to go on the IA or if he would, you know,
promote at a captains' board. Lots of personal interests because
we're all people and affected by what happens in our professional
careers, but no one has a personal agenda or, you know, a personal axe
to grind with Lieutenant Commander Penland.
Q. I want to back up a little bit and talk to you about an
e-mail that was sent to then Commodore Harr, Captain Harr a day after
the motion for docketing was agreed upon by defense counsel.
A. Right.
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Q. Are you aware of that e-mail?
A. I am. On or about the 8th of November.
Q. Have you seen that e-mail?
A. I have.
Q. If you could please just explain to the Court, what was the
purpose of that e-mail and what was the accused trying to achieve
there?
A. On or about the 8th of November Lieutenant Commander
Penland sent on her own initiative an e-mail directly to Commodore
Harr saying that she had grave concerns about the manner in which her
case had been referred and that she was upset with the motion for
docketing and she had fired her attorney’s--or she wanted to--I'm
sorry. She wanted to fire Lieutenant Robertson, that Lieutenant
Robertson was her military attorney and she was in the process of
firing him.
Q. Now, Commander Penland just stated on the stand under oath
that she had fired Mr. Blevins on that date, as well. Did that E-mail
make any mention of a firing of Mr. Blevins?
A. No. In fact, she had other e-mails that discussed at
length about how it was that Lieutenant Robertson had acted at the
behest of Mr. Blevins and had filed something inappropriately because
Mr. Blevins had misunderstood Commander Penland's direction to him.
There was no mention whatsoever. The first mention that she might
have fired her attorney came up on or about the 13th--her civilian
attorney--came up on or about the 13th of November when she presented
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on her own initiative, in civilian clothes, at the SJA office at the
Region trying to tell them that she had, you know, fired her
civilian--or military counsel and was thinking about firing her
civilian counsel.
Q. To your knowledge, does that--does that 8 November e-mail
make any request or mention of a demand for speedy trial?
A. No. It does ask for another lawyer. I think it does; I'd
have to read it.
Q. At any time throughout this entire process, and this is
from preferral of the charges until present date with the exception of
the motions filed by the Defense, has the accused ever requested
speedy trial to your knowledge?
A. No.
Q. Subsequent to the motion for docketing being signed or
being approved and accepted by the Court, are you aware of any
continuances requested by the Defense?
A. The continuance that I know of prior to the motion for
docketing is the one in which she requested a continuance of the 32
because she needed to find a different lawyer..
Q. After the motion for docketing was signed, we--the
Government scheduled a 39(a) session to arraign the accused.
A. Yes.
Q. Were you present at that hearing?
A. Yes.
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Q. And did that hearing take place?
A. Yes.
Q. Was the arraignment completed?
A. Are you talking about the arraignment on or about the 21st,
the arraignment attempt on or about the 21st of January?
Q. Yes.
A. That arraignment was not completed.
Q. And why not?
A. Because the accused didn't want the counsel that she was
provided by NLSO Northwest as a substitute for Lieutenant Robertson.
NLSO Northwest honored the request to fire Lieutenant Robertson and
gave her another detailed counsel, Lieutenant Head. Lieutenant Head
was flown down for the arraignment, but Lieutenant Commander Penland
insisted that he was not her attorney and she didn't want him. And
she had had no contact with Mr. Blevins; she had been unable to get in
touch with him and he wasn't able to be here, so she was, in effect,
not represented by anyone except herself.
Q. And then at that time did either the accused's counsel or
the accused herself ever represent to you that they wanted--she wanted
a speedy trial?
A. She didn't.
Q. And is----
A. In fact, as I recall, the accused told the judge she needed
some time to find a new attorney or to consult with what she held out
to be her current attorney which was Mr. Blevins. She told the
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military judge on the 21st of January that that was the person by whom
she wished to be represented.
Q. But at no time throughout this process was your office ever
contacted and the request made to you that the accused wanted a speedy
trial?
A. No.
Q. Just one moment. [Reviewing notes.]
Now, you have no knowledge of the meeting on 21 February
2007 with Captain Sturges and the accused when they discussed her
phone calls?
A. I have no personal knowledge. I wasn't a witness to that.
I have heard what came out of it, the stories are consistent, but I
don't have any personal knowledge.
TC: Thank you. I have no further questions.
MJ: Captain Callahan.
IMC: Thank you, sir.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good afternoon, ma'am.
A. Good afternoon, Captain.
Q. Ma'am, if I can turn your attention back to the motion for
docketing which was signed the day after charges were preferred,
correct?
A. No. The motion for docketing----
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Q. Oh, I'm sorry. The day after charges were referred.
A. I think the--I think so. Charges were referred on or about
the 6th of November and the motion for docketing was signed on or
about the 7th of November, yes.
Q. And a leave request that Lieutenant Commander Penland had
had in ended on 9 November, correct?
A. There were about three different leave chits at issue
during that time. One was for personal leave. I think two were for
personal leave and one was for convalescent leave, and so in October
what was at issue is that she was going to be gone for most of October
and into November.
Q. From 29 October until 9 November, the specific leave chit
that was denied or that was approved and then later denied?
A. Yes, that was the personal one following her convalescent
one. It also overlapped with her convalescent leave request. She had
another--she had sinus surgery in mid October and so there was a
convalescent leave request for about 14 days. So on or about the 15th
of October--I'm sorry--yeah, on or about the 15th of October till on
or about like the 30th or so, but suffice it to say they overlapped
and that was one of the other requirements Captain Harr said needed to
be cleared up before he would approve the 29 October to 9 November
leave chit.
Q. In regards to the referral of charges, ma'am, you said that
you believed charges had been referred on 19 October----
A. Yes.
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Q. ----originally. Was there a set of charges that was
referred and then that charge sheet corrected and changed?
A. It's my understanding. I don't have a copy of the--I don't
have--I don't know. That's my understanding. My understanding is
that there was an administrative correction made to the charge sheet,
that the charge sheet was originally signed on the 19th of October and
then the administrative correction was changed and the charge sheet
was signed on the 6th of November. 19th of October, I'm sorry, was
the first signature.
Q. And that's the first referred charges and the----
A. Yes.
Q. ----second corrected referred charges----
A. Yes.
Q. ----on 6 November? Ma'am, isn't it true that when
Lieutenant Commander Penland came in to speak with you, you told her
that she was a bad fit for Naval Coastal Warfare Group ONE?
A. That was her characterization, not mine.
Q. Isn't it also true that you said she was too much by the
book for a command like Naval Coastal Warfare Group ONE?
A. Absolutely not.
Q. Did you tell her that there had been numerous complaints
from people in the command that she was being too strict on enforcing
rules?
A. I don't think that that's how I would have characterized
it. I just said that there were numerous complaints from people in
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the command because she was inconsistent and difficult to deal with.
It certainly isn't because she was trying to follow rules. I did tell
her that sometimes format and style and procedure are different. She
insisted that a particular chit be, you know, filed or signed a
particular way and when substantively it's--Commander Penland insisted
upon processes, not upon outcome or substantive issues, and so I
probably did tell her--in fact, I'm certain I told her that her style
was not necessarily congruent with the manner in which, you know,
people were accustomed to behaving.
Q. So the command was accustomed to not following the
procedural requirements of----
A. No, no. We're talking about a process. The process is--I
mean, the requirement is that you go into a room and you be there and
be available, but she insisted that you go into the room and you wipe
off your hands and you walk into the door and you salute at the door
and you do this, that or the other thing. I'm talking about the
manner in which a requirement is fulfilled, not the required process
for having done it. She imposed artificial processes on her people
and they didn't like it.
Q. She wasn't popular over at Supply?
A. Absolutely. She was notorious.
Q. Was she popular with the other officers in the command?
A. You know, many of the officers had very little opinion of
her, at least initially, you know. She remained in Supply for most of
the time.
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As far as her popularity, I believe that she was good
friends with Kisha Marabell because they would do things, you know,
together. I believe that she had a relatively good relationship with
Ike Owens. So I don't--I don't know that she was unpopular amongst
the wardroom. She appeared to have friendships within the wardroom; I
don't know how close they were and I don't--you know, I've come to
understand that she had caused conflict amongst people, but I didn't
have that opinion at the time. My belief was that she was unpopular
amongst the Supply crowd and the officers with whom she worked.
Q. Ma'am, isn't it true that you expressed to other members of
the command that you do not like Lieutenant Commander Penland?
A. I don't think I've said that. That's not something--I
mean, I guess if you could show that I have or something, I'd consider
that. But I don't--I don't have a personal opinion about Lieutenant
Commander Penland. I don't know her personally. I don't really care
to know her personally.
I don't like how she works. I don't like how she acts. I
don't like how she dresses. I don't like how she behaves. But those
are all professional concerns. Those things are professional matters.
They're not my personal opinion. She runs afoul of regs. She is not
able to lead. She's not able to get along.
So whether I like something or someone, it depends on how
you look at it. Professionally, I don't respect her behavior. But,
personally, I don't have an opinion about whether I like her or not.
I think I probably don't, but I don't know that.
147
IMC: Thank you, ma'am.
No further questions, sir.
MJ: Redirect?
TC: No, sir, nothing further.
[The witness was duly warned, temporarily excused, and withdrew from
the courtroom.]
MJ: Further evidence from the prosecution on these motions?
TC: Sir, the Government has one more issue. I guess it can be
considered evidence. There was an 802 conference held on the 7th of
November where the motion for docketing was discussed. Present at
that 802 conference were myself and Captain Allred. Mr. Blevins was
available or was present telephonically. I would like the Court to
consider that 802 as evidence as to the motion for docketing motion;
however, I recognize the military judge is not the same military judge
who was present at the 802. I would ask the Court is there an
adequate record of that 802 in the pass-down or in the folder and, if
not, the court would--or the Government would request that Captain
Allred be called as a witness to recount on the record the substance
of that 802.
MJ: If I recall, was there not an e-mail generated that
summarized the 802?
TC: The Government is not aware of such an e-mail. The purpose
of the 802 was very brief, just mainly to confirm the motion for
docketing. However, given testimony of the accused that her--she--her
counsel was no longer retained at that point, I think it's important
148
that that evidence come in before--and come before the Court. As it
was an 802, I would assume the Court is aware of it, but I'm not sure
if it was adequately documented.
MJ: Captain Callahan, do you dispute that the 802 was held when
it was held?
IMC: Sir, I have no idea and I guess I don't see how the--
Lieutenant Commander Penland's testimony was that Mr. Blevins stopped
representing her on the 8th. My understanding is the motion for
docketing was signed on the 7th. So I would--again not that I was--I
wasn't present for any of these; I don't know. But it would seem to
me that if was an 802 held on this motion for docketing, it would have
been held on the 7th, not on the 8th. I haven't received any--I'm not
aware of any e-mails that were generated in regards to this 802
conference. Today was the first time I have ever been made aware of
this 802 conference, Your Honor.
MJ: All right. Where there is a note in the case file pass-
down from the previous judge, Captain Allred. I guess we probably can
just make it an exhibit; and if you want to explore that either with
the captain or with the other parties and that would at least give you
a basis for doing so. We'll take a recess here in a minute to make a
copy of it. Basically the note is:
"7 November telephonic 802. Names of parties: Lieutenant
Commander Messer, TC; Lieutenant Robertson, DC; Mr. Clifton Blevins.
Case management order, U.S. v. Penland. Mr. Blevins, 2 to 4 February
may be 'too soon.' Discussed trial dates and all agreed to CMO signed
149
as proposed. 39(a) set for 28 January."
TC: Sir, the Government's satisfied that you've now read that
into the record. We do not require a copy be made as an exhibit.
That's now on the record as to what was discussed, and the Government
is satisfied.
MJ: Well, I still want to make it part of the record; and
again, if you want to follow up on that on the other side, then, you
know, there may be an appropriate way to do that.
IMC: Yes, sir. Sir, actually also I don't know if this is a
good time to bring it up, but while we're on the subject of 802's, are
there any other 802's that--and I understand there were 802's that I
was e-mailed from you, but are there other 802's other than this one
in that folder that I'm not aware of?
MJ: No.
IMC: Thank you, sir.
MJ: Okay. So aside from that 802 summary, anything else from
the Government?
TC: The Government would ask that the enclosures to its five
motions be considered.
MJ: Very well. Any objection from the Defense?
IMC: No objection, Your Honor.
MJ: I'll just--I'll note there's some overlap between the two
packages, but that's okay.
IMC: There are, Your Honor.
150
MJ: That's all right.
Okay. Anything else in terms of evidence for today's
motions from either side?
TC: No, sir.
IMC: No, Your Honor.
MJ: Okay. Why don't we take a brief recess, reassemble at 1230
hours and I'll receive argument and an amplification of the arguments
you've raised in your motions and your responses. Court stands in
recess. Carry on, please.
[The session recessed at 1216 hours, 10 April 2008.]
[The session was called to order at 1237 hours, 10 April 2008.]
MJ: Court is called back to order. Let the record reflect that
all parties present prior to the recess are again present before the
court at this time.
Counsel, at this time I'd like to receive further argument,
if you'd so desire, amplifying the arguments you've raised in the
motions and responses. I think probably the best way to do it is to
go through each motion and response and allow each party the
opportunity to argue on that particular motion rather than have a
single argument on all five motions.
Why don't we start with the motion to suppress. Captain
Callahan.
IMC: Yes, sir. Sir, if I may just briefly, to amplify the
arguments made in that one. The test for whether or not somebody is
being interrogated isn't whether or not they're specifically asking
151
questions. It's whether or not an incriminating response is
reasonably likely.
Captain Sturges testified here in court that the command
had a history of dealing with Lieutenant Commander Penland and issues
and allegations against her and that every time that it came up and an
allegation was raised or she was told not to do something, she would
vigorously defend herself. There's no reason for the command to
suspect anything different was going to happen this time than every
other time they had come in there.
So again, looking on the totality of the circumstances,
that certainly is him coming in--or him calling Lieutenant Commander
Penland in and discussing the issue at all with her was reasonably
likely to raise a response from her. He knew that from past
experience. If he didn't think it was going to be an issue with her
raising a response, he wouldn't have bothered to call his chief staff
officer and he wouldn't have had his staff judge advocate in there.
The entire reason he had them in there was because he anticipated
legal proceedings based off of this, he anticipated responses from
her, he anticipated this being an issue. This wasn't just "I'm going
to call Lieutenant Commander Penland in and say 'Lieutenant Commander
Penland, don't talk to Petty Officer Lewis anymore.'" He knew it was
going to be more than that; and because he knew it was going to be
more than that, he had a responsibility to read her his [sic] rights.
Clearly he suspected or should have suspected her of an
offense if that time he had already issued her a military protective
152
order, and he said part of the reason he issued her a military
protective order was because of the allegations of adultery between
Lieutenant Commander Penland and the petty officer's wife [sic]. So
not only should he reasonably have suspected, he clearly did suspect
to the point where he issued a military protective order.
So clearly, sir, he's on a quest for information or in an
official capacity. He's a commanding officer. He's in his official
capacity that he's speaking to her on this. All the prongs are met.
He's required to read her her rights before in any way speaking with
her about this. He failed to do it. So her statements made to him
should be suppressed, sir.
MJ: Lieutenant Commander Messer, Government's perspective?
TC: Yes, sir. The Government would argue first that--or first
and foremost the commanding officer or the commander was not on a
quest for evidence.
First, to address interrogation, the definition, as
provided by 305(b)(2), is questioning in which incriminating response
either is sought or is reasonable consequence of such questioning.
The key word there is "questioning." You're heard testimony today
that it was never the intent of the command to question Lieutenant
Commander Penland about anything. The purpose of the meeting was to
inform Lieutenant Commander Penland to stop contacting NC1 Lewis-
Wiggan. There was no intent whatsoever to question. Therefore, it is
not an interrogation because Captain Sturges was not a military
interrogator or acting in the role of military interrogator.
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Now, granted, once Lieutenant Commander Penland makes her
admission, he then does ask a question and the Government would
concede at that point he does become a military questioner and
everything thereafter rights should have been read; however, that does
not keep out the incriminating statement which is "I did not call NC1
Lewis-Wiggan."
The second prong in which the Government would defend
against suppression of this statement is that the accused was not a
suspect within the definition of the code. To be a suspect, you need
to be suspected of an offense. We've given evidence to the Court that
the military protective order had expired well before this meeting.
Therefore, the mere act of calling NC1 Lewis-Wiggan in and of itself
is not an offense. It would be an offense if she were in violation of
the military protective order, but it was very clear--and it was very
clear that Captain Sturges was aware that she was not. So if she is
not a suspect, then 31(b) rights would not apply.
The Court should be reminded that the incriminating or the
offense committed here was Article 107, not an orders violation or not
any kind of harassment. So to suggest that the Court [sic] should
have been--should have foreseen the fact that Commander Penland would
commit a false official statement when she came to the meeting is
ludicrous. The command would have had no indication that Commander
Penland would speak at all. It was never the intent of the commander
to have Lieutenant Commander speak; he was just merely calling her in
to give her an order and remind her that she's a Naval officer and she
154
should not be doing these things.
So on those two grounds the Government would argue that
31(b) rights were not warranted, at least up to the point when the
commander did ask--or excuse me--the captain did ask the question of
the accused.
MJ: Captain Callahan, what about the Government's contention
that your client was not a suspect at the time the interview took
place?
IMC: Sir, she may not have been a suspect for violating the
military protective order, but she was clearly a suspect. He
suspected her of committing adultery. That's why he--part of the
reason he issued the military protective order. That she may have
committed adultery is in no way have gone away simply because the
military protective order was gone. So the fact that the military
protective order expired really doesn't have anything to do with
whether or not she was a suspect. He equally suspected her of having
committed adultery in the past on that day as he did on the day when
he initially issued the military protective order.
MJ: Anything further from either side concerning the
suppression motion?
TC: No, sir.
IMC: Briefly, sir, if I may, also. The Supreme Court has been
quite clear that it doesn't have to be a question-and-answer format in
order for it to be an interrogation, I mean, the most famous case
dealing with it, with the "decent Christian burial speech."
155
Unfortunately I didn't anticipate this issue coming up and don't have
the case to cite to the Court, but the police suspected an individual
of having killed somebody and rather than question him because they
knew they'd have to read him his Miranda rights, they just drove
around and said "Boy, it really stinks, it's Christmas time coming up,
this girl should really be given a decent Christian burial," and the
guy breaks down and confesses and says, "Okay, okay. I'll take you
and I'll show you where the body is. And the Supreme Court held that
even though they weren't quote/unquote talking to him because they
were--and a response was reasonable from him in that situation, that
it was questioning.
It's the same thing here. He may not have been
specifically questioning her, but, based on her past behavior and his
knowledge of that past behavior, he reasonably suspected the same
behavior there again today. That's the exact reason he had his staff
judge advocate there, sir.
MJ: Commander Messer, anything further?
TC: I'll just respond by saying you heard testimony today from
an individual with 30 years of Naval service who told you at the time
of the meeting he had no intent to question, nor was he on a quest for
evidence. The purpose of the meeting was merely to inform Commander
Penland not to contact NC1 Lewis-Wiggan.
MJ: The parties' positions are clear concerning the issue.
Why don't we next address the UCI issue, the motion to
dismiss, Appellate Exhibit VI. Captain Callahan.
156
IMC: Yes, sir. First of all, sir, in regards to the specific
UCI side of it, in addition to the motion, I would only point out on
that that if the Government--the Government's contention is that the
signing for the motion for docketing had no effect on anything, they
had to get it done because she was on leave or they wouldn't have been
able to arraign her and they would had to have canceled her leave
anyway. Her leave was set to expire on 9 November. She could have
been brought in and arraigned at that time. That's the only additional
argument I would make in regards to the UCI specifically, sir.
In regards to the accuser side of the motion, sir, the case
law is quite settled on that. U.S. v. Jackson is anybody that has a
personal interest in the matter. The command staff judge advocate
came in here and testified that she had a personal interest in the
matter and that everybody my client has ever accused had a personal
interest in the matter. The command's own staff judge advocate
admitted a personal interest in the matter. She said, yes, we all
have a personal interest; we're worried about it affecting promotion,
selection of command, retirement. She said it's not an agenda. But
that's not the test that the court uses.
The court--the test used by the court in Jackson is, is
there a personal interest in the matter? And the command's own legal
representative said yes, we all have a personal interest in the
matter. Of course, they do, sir. Anybody's going to have a personal
interest in the outcome of a matter when it's holding up potentially
promoting, even more so retiring, when it's dealing with assignment.
157
So whether or not these allegations made are true, whether
or not they're going to be substantiated somewhere down the road,
they're certainly weighing very heavily on the command, as evidenced
by the testimony of Lieutenant Commander Marshall. These are people
with a personal interest in the matter. Because they have a personal
interest in the matter, they are accusers.
Because Captain Sturges and Commander Ward are accusers,
they're required by the Manual for Courts-Martial to forward the
Article 32--or to forward the paperwork and the proceedings for that
up to the next higher chain of command. That should have been
forwarded up. It was not. Both Captain Ward and--or both Captain
Sturges and Commander Ward are nominal accusers. Because they're
accusers, neither one of them could have convened the Article 32.
Since the Article 32 was improperly convened, there's an improper
referral in this case. It's jurisdictional in nature. The only way
to correct that improper referral is to dismiss the case and allow it
to be recharged, if the higher command so chooses to do.
Also, sir, in regards to apparent unlawful command
influence, the court's addressed, too, that the court is very
concerned not only with protecting against actual unlawful command
influence, but against any sort of appearances or improprieties of
unlawful command influence. Not only do the complaints filed by
Lieutenant Commander Penland create an accuser issue, they also create
an issue of an appearance of an impropriety. What we have here is a
very senior Naval officer who has served the Navy very well, comes to
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this command, has a lot of problems with people in this command,
starts out raising supply issues, supply concerns, multimillion dollar
contracts being handled improperly, and from there she ends up at a
court-martial, she's raising allegations of racist and sexist
behavior, raising allegations of reprisal and then this same senior
command is the command--the same people in this command convened the
Article 32.
Sir, that just smacks of impropriety. Anybody looking at
that is going to say how can these officers not have an interest in
this case such they're going to impact the outcome of the case, and
that even goes all the way up to the rear admiral. It's substantial
other senior officers that are located within his area here that have
been implicated by this, even though he's not directly in their chain
of command.
So, sir, because they have a personal interest, it creates
both an appearance of unlawful command influence and certainly the
accuser interest and, because of that, respectfully request the Court
do really the only thing that can be done to remedy this is to dismiss
it and allow it to be handled at the proper level where the rules
require it would have been handled to begin with.
MJ: Lieutenant Commander Messer.
TC: Well, sir, the Government would respond I guess in order of
the allegations raised by the Defense, first actual UCI, apparent UCI
and then an alleged violation of the accuser concept. And it appears
the Defense is kind of mixing the arguments, but I'll do my best to
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respond.
First and foremost, as you know, the burden is not on the
Government here. It's on the Defense to raise some evidence, and the
case law is very clear this "some evidence" needs to be more than mere
allegation or speculation. Well, that's exactly what Defense has
given us here is allegation and speculation. I think in their brief
they even call it "allegations."
As to actual UCI, they allege that somehow because the
command canceled the leave of Lieutenant Commander Penland or
threatened to cancel the leave, that they are somehow trying to
influence the court proceedings. Well, we've heard numerous testimony
today that there was a speedy trial concern on the part of the
Government; the Government needed to either have the Defense enter
into a motion for docketing or arraign the accused. They could not
arraign the accused unless the accused was present. So why would the
Government, not knowing whether or not the Defense would enter into a
motion for docketing, allow the accused to go on leave? It would be
basically the Government would be shooting itself in the foot allowing
the Defense to get--to let the speedy trial clock lapse. It would be
negligent behavior on the part of the Government.
So the Government had a legitimate interest in ensuring
Commander Penland was available to uphold her military duties and,
i.e., be present at her arraignment. So this--somehow this contorted
argument that this is actual unlawful command influence is absolutely
ludicrous.
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As to apparent unlawful command influence, they follow the
same path. Because Commander Penland has filed a complaint against
almost every senior officer at the command, therefore, that must--that
puts out an appearance on unlawful command influence, well, that's
just mere allegation and speculation on the part of her. Just because
an accused raises these issues does not entitle her to raise the issue
of unlawful command influence. The two do not mesh. But you have
to--you have to show some evidence, you have to show more. They have
not done that. They have not met their burden and, therefore, you
don't even need to go to the second part of the test which is what the
Government needs to prove beyond a reasonable doubt which were those
three factors. And in my brief I address those for the sake of
argument and for the sake of the Court, but I don't even need to get
there in my oral argument today. The Government [sic] has not met
their burden on showing either actual or apparent unlawful command
influence and their motion should be denied.
As to the accuser concept, the Government does not disagree
with the Defense's recitation of the law on this, however, again,
Captain Sturges or Commander Ward, who at times was the acting
Commander of Naval Coastal Warfare Group ONE, do not fit in the
definition of an accuser under Article 1(9). Again Captain Sturges,
in his sworn testimony today, said "I do not have a personal interest
in this case." He has an official interest and that he wants to see
good order and discipline maintained and he wants to see an officer
maintain the standards that she is expected to maintain, but he
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continually said over and over on questioning he does not have a
personal interest.
Now, the Defense seizes on the statements made by the SJA.
Well, one, you could argue the SJA--they haven't shown a causal link
between the SJA's feelings on this case and how she would even
influence Commander Ward or Captain Sturges. But again the SJA was
very clear to say yes, she has personal feelings in that this has been
painful for her these allegations filed by the accused, however, she
could still separate the two and remain impartial and official in how
she handled herself.
Further, the accused kind of has--or has--or I should say
the Defense has kind of bent this concept in that they've--Captain
Sturges is not the convening authority for this court; Rear Admiral
Hering is. So, to get around that, Defense focuses on the Article 32
hearing where Captain Sturges was the convening authority. However,
you've heard the testimony that he's only acted in official capacity,
plus Captain Sturges nor Commander Ward testified at the Article 32;
they weren't even a witness. And if they're a witness at the court-
martial, they're not the convening authority anymore.
So, you know, this notion that the accuser concept somehow
has sullied this process and the case needs to be dismissed and
re-referred to a different Convening Authority holds no merit
whatsoever.
You know, counsel throws about terms like "improper
referral," that because the Article 32 was convened that that somehow
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has influenced the entire process. Well, sir, you know our military
justice system better than I do. Obviously once an investigating
officer completes his report, he provides that report to the special
court-martial convening authority, which here would have been
Commander, Navy Coastal Warfare Group ONE. Then that special court-
martial convening authority, if he so chooses, forwards that report to
a general court-martial convening authority who uses their own
independent judgment to decide whether or not to convene a court-
martial. Captain Sturges had no influence as to whether or not Rear
Admiral Hering convened the court, and the Defense has presented no
evidence suggesting otherwise.
The Defense even goes as far, in their brief, to somehow
impugn Rear Admiral Hering's integrity by saying he must be protecting
the officers underneath him. Well, we've heard evidence here today
that Rear Admiral Hering isn't even in the chain of command of Captain
Sturges. Captain Sturges doesn't even know Rear--well, he knows who
Rear Admiral Hering is, but he's never even had a conversation with
Rear Admiral Hering about this case or about Commander Penland. So,
you have all sorts of protections within the system.
But to somehow allege that this court-martial process has
been influenced because Captain Sturges was a potential witness now
that Rear Admiral Hering is the Convening Authority is ridiculous.
The argument holds no merit on both unlawful command influence and
accuser concept, and the Government would ask that you dismiss this
motion.
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MJ: Captain Callahan, care to respond?
IMC: Yes, sir, briefly. First of all, sir, if the Government
says that they were so concerned about canceling her leave so they
could get her in court and if this leave was going to keep her from
being arraigned when they had the speedy trial issue, we're talking a
difference of two days, the difference between the 7th and the 9th.
Sir, also in regards to the accuser motion, again, what it
comes down to it's do they have a personal interest in the matter, not
are they using that personal interest in the matter to change the
outcome of the case, just do they.
And in regards to the Article 32, if Congress and the
President's intent had been that Article 32 can just be conducted any
willy-nilly way it is because the general court-martial convening
authority is the one who ultimately decides what to do with the case,
then we wouldn't have case law that clearly states when an officer who
is convening an Article 32 is an accuser, he's required to forward the
case up to higher authority without comment and without an Article 32.
And CAAF has even ruled on that, sir, as recently as 1998; as cited in
my motion, it is very clear this is what case law requires. This
isn't some--it doesn't matter whether or not I have any proof that not
properly handling the Article 32 has somehow influenced referral of
the case. It's black and white case law. The appellate court has
said this is what must happen, and that did not happen in this case.
Therefore, this case needs to be dismissed so that the Manual for
Courts-Martial and for the--and so the direction of the higher court
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can be followed in this case, sir.
MJ: And the case you're relying upon is?
IMC: 49 M.J. 232, U.S. v.--I believe it's pronounced Dinges,
D-I-N-G-E-S, and it's cited in my motion, as well, sir.
MJ: Lieutenant Commander Messer, anything further from the
Government on the issue?
TC: No, sir.
MJ: With regard to the Defense position concerning the Article
32, I think the focus of your argument, Captain Callahan, is that
there was a structural defect, therefore, relief is required and that
relief is a new Article 32?
IMC: Correct, sir.
MJ: Does the Defense see any prejudice to the accused based on
the role Captain Sturges or Commander Ward had concerning the Article
32 process? Did they make any decisions that denied witnesses being
produced or evidence being produced that had been requested by the
Defense?
IMC: Not that I'm aware of, sir. Again, I wasn't present for
the Article 32.
MJ: You've had access to it and we'll get to that in a moment,
but----
IMC: Yes, sir.
MJ: ----I gather you're familiar with the Article 32.
IMC: I am, sir, but I'm not familiar with what witnesses may or
may not have been requested by my predecessors.
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MJ: Very well. Let's talk about the Article 32, the request
for transcript. Captain Callahan.
IMC: Yes, sir. Sir, just briefly on that, again, I wasn't
present for the Article 32. The Government has brought the entire
weight of the United States Government and the United States Navy at
their disposal to come after my client. She's got me. The
Government's got virtually endless resources between investigators,
people assigned to assist SJAs, et cetera. Again Lieutenant Commander
Penland has me.
Sir, it's just a notion of what's fair and what's the best
way to handle these things. The appellate court has recognized that
in certain circumstances Article 32 transcripts are required to be
produced. I'd respectfully suggest that they're referring to a
situation such as this, sir.
MJ: Let me clarify then that what it is you seek. How long was
the hearing? Was it a single day?
IMC: I believe it was, sir, yes. And just the transcript of the
testimony, not the transcript of the pages worth of warnings and
purposes and such of an Article 32; obviously that I know what that
says and it doesn't really have any relevance as far as cross-
examining any witnesses goes, Your Honor.
MJ: Did the--in your motion you talk about the estranged wife
of the man that allegedly had the affair with your client. Did she
testify? Would that be NC1 or NCC?
IMC: My understanding is she did not testify, sir.
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MJ: She did not testify.
So which witnesses would be crucial for your purposes of
case preparation then to have their former testimony?
IMC: Captain [sic] Doud's the one we're looking at, sir, the
investigating officer, and with the allegations that he actually wrote
Petty Officer Wiggan's statements for her.
MJ: Government's position concerning preparation of a
transcript?
TC: Sir, as is stated in our brief, there is no authority that
requires the Government to have to perfect evidence or somehow make
evidence--change the format in which evidence is in to better suit the
Defense. We provided the--we provided the Article 32 tapes
immediately after the Article 32 to detailed defense counsel at the
time. We provided a second set of tapes as of today to individual
military counsel.
And as to the argument that the Government is somehow
better situated to transcribe these tapes, yes, I have a court
reporting department, but my court reporting department is tasked with
transcribing courts and they're extremely busy doing that. So we are
in no better position. We don't feel that there is any need for us to
perfect this evidence for the Defense; and Defense feels it's so
important, then they can transcribe the hearing themselves.
MJ: Does the Government anticipate calling as witnesses those
witnesses that were called at the Article 32?
TC: No, sir.
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MJ: I gather the same question to the Defense would you answer
affirmative?
IMC: Depending on the testimony of Petty Officer Wiggan, sir.
MJ: Captain Callahan, have you had an opportunity to review the
tapes that have been provided to you concerning the Article 32?
IMC: I have not, sir. As the trial counsel stated, they were
delivered to me this morning. He did deliver them to defense counsel
prior to me; I did not receive them from him. I believe he threw them
out; I think he tried to play them on a regular cassette player and my
understanding is they don't, so he assumed that they were broken.
MJ: Yeah, you need a special court reporting transcribing
machine to do that.
IMC: I believe so, sir. They're different from the format we
use in the Marine courts. We use FTR and they're on a CD, but I will
get with the court reporter and make sure I get the proper equipment
to play, sir.
MJ: Very well. At this point, with regard to the Article 32
transcript, I'll request that you make that attempt. If you're unable
to decipher or discern those tapes or if they're inaudible please
re-raise this question. So I'm going to defer on this particular
motion.
IMC: Understood, Your Honor.
MJ: Very well. And let's finally end with the 707 speedy trial
issue, and I guess wrapped into that is also the motion for docketing,
if you'd like to address those together. Anything further from the
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Defense?
IMC: Sir, I have nothing further on the straight 707 motion.
In regards to the motion for docketing, sir, the trial
counsel speaks about how I have no authority to cite that an accused
has the ability to instruct counsel not to enter into a motion for
docketing. It's because the motion for docketing is a relatively new
procedure the motion for docketing is not found in the Manual for
Courts-Martial. I was unable to find any appellate cases dealing with
the motion for docketing. Motion for docketing was created by the
Judiciary as a means to more efficiently handle and administer cases.
So this is somewhat of a new thing and, because it's not addressed in
the Manual for Courts-Martial, I do not have specific authority to
cite that it is required for a client to consent to a motion for
docketing.
However, as a matter of practice within the Circuit, I'd
like to point out that many times when even often relatively minor
rights are waived by counsel, the court will specifically request the
accused, if that is correct, if--argue, in fact, raising--waiving his
rights. Even from things along the lines of stipulations,
stipulations of expected testimony, the court routinely out of the
guide questions a client whether or not they're going to enter into
that stipulation. So there's certainly precedent that many things of
these nature are inquired of--of the client, sir.
Also the prosecutor's response basically delves into an
ineffective assistance of counsel argument. I didn't raise an
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ineffective assistance of counsel claim in this; that's not the proper
way to address this. I raised it as a constitutional consideration.
You know, the fact that she entered into a motion for docketing or the
counsel entered into a motion for docketing without her permission
certainly changed the outcome of this case. Had this case been
arraigned as it was supposed to have been, the court would have had--
or otherwise, you know, supposed to have according to my client, the
court would have had hands on this proceeding as much sooner and we
wouldn't have been stuck in a situation where there were many months
without a detailed counsel and time just continued to kick--tick by
with no process being made in the case.
And the case law is clear that when it comes to an issue of
constitutional rights, there's a clear presumption against waiver of
those rights and ordinarily a counsel cannot waive the constitutional
rights of his client without his client's express permission. In this
case, not only do we have an issue of no express permission to waive
the right, we have the express withholding of that ability to waive
that right. Counsel are supposed to represent somebody; that's their
goal, that's their purpose. They step outside of that function when
they no longer represent somebody. Her counsel stepped outside of her
position when they no longer represented her; they weren't functioning
as counsel as they were supposed to.
And it's also of importance, sir, that as soon as
Lieutenant Commander Penland had discovered this, that she attempted
to rectify it. She sent an e-mail to the Commanding Officer of Naval
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Coastal Warfare Group ONE, Captain Harr, objecting to the motion for
docketing and saying that it was improperly filed and that was not her
position. He's her commanding officer and to her knowledge this was
the best person to submit this to; she hasn't been arraigned, she
hasn't been in court, she's not--hasn't seen a military judge, she
doesn't know a military judge to submit this to. She submits it to
the special court-martial convening authority. And his response back
isn't "I'm the wrong person, try a military judge." It's basically,
you know, the sit tight and I'll kind of look into it response. So
she did what she thought she needed to to take care of this.
There's also several very significant differences between a
motion for docketing and an arraignment, and I understand that a great
deal of my fellow defense counsel routinely enter into motions for
docketing. My practice is I never enter into a motion for docketing
unless it's part of a pretrial agreement. The motion for docketing,
there's no express protection against additional charges. There's no
express protection against major changes to the charge sheet. There's
a very big difference between signing a motion for docketing and
arraigning someone. You get certain concrete rights and guarantees
with an arraignment. The case is brought before the purview of the
court.
So this isn't just something that's signed off on and it's
not really any different from an arraignment. It is significantly
different from an arraignment and her counsel gave up significant
rights that she had by signing this motion for docketing. Supposing
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that the trial counsel discovered additional charges and brought them
to the attention of the command, we're talking many more months where
major changes could have been made to the charge sheet, many more
months where additional charges could have been added. This isn't
just some small matter. It's a very important matter, sir.
And the Government doesn't have clean hands in this. It
would be one thing if Lieutenant Commander Penland had told her
lawyers, no, don't sign it, they signed it anyway and then the
Government never found out about it. It's kind of the how can we
attribute any wrongdoing on the Government's part to this. This was
attorney/client privileged communication. But in this case she did
contact the Government; she told her commanding officer of the
problem. So whereas the Government may not have an obligation to fix
it when they're not aware of it and they certainly don't have an
obligation to fix it when they're not aware of it, as soon as she
brought this up to her commanding officer the Government is now
involved in having an obligation to fix this. The Government did not.
And, therefore, I would respectfully request that the Court
hold the motion for docketing as not valid in this case and that the
time entered into as excludable delay still be counted against the
Government. Thank you, Your Honor.
MJ: Lieutenant Commander Messer.
TC: Sir, I'll respond first to the motion for docketing
arguments and then briefly touch on the 707 issue which defense
counsel chose not to--not to address.
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The motion for docketing: The first prong of the
Government's argument is that this is a valid court order. It was
signed by both parties, defense counsel and trial counsel. It was
approved by a military judge in an 802 conference. So it is a binding
court order that is valid. The Defense has offered no evidence to
suggest otherwise.
We raised the IAC issue, ineffective assistance of counsel,
mainly because, well, that's exactly what it is. Counsel himself said
that in this case counsel stepped outside their boundaries. They
didn't act on the client's best interests. Well, isn't that
ineffective assistance of counsel? Isn't that the root of it? So the
Government felt it proper to address this issue through the clear law
that's out there for ineffective assistance of counsel.
When you apply those factors, as I have in my brief, it's
very obvious that the counsel's actions were reasonable, it was in
keeping with the normal practices of other counsel and that absent
entering into the motion for docketing things wouldn't have been any
different because, as we know, the Government would have immediately
arraigned the accused stopping the speedy trial clock.
You know, finally, you have to ask yourself the question
has the Defense shown any prejudice as to this decision. I mean, you
can banter back and forth whether the motion for docketing is invalid
or not. The Government maintains it is valid. But even if you find
it's invalid, you have to ask yourself the question where is the
prejudice? How has the accused been prejudiced by her counsel's
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decision to enter into that motion for docketing? Were additional
charges filed because that motion for docketing was entered into
instead of an arraignment, no. Were rights violated, no.
Now, the counsel tries to make the mental gymnastics and
say, well, yeah, the Sixth Amendment right to speedy trial was
violated because the 707 clock was stopped and but for the motion for
docketing that 707 clock would have continued and accused could have
got off on a technicality because the Government wouldn't have stopped
the clock within 120 days. Well, the assertion is absolutely
ludicrous. There is no causal link between entering into a motion for
docketing and waiving the accused's speedy trial rights.
The Court should be reminded that previous to this motion
for docketing the Defense had requested a continuance in the case. In
addition, at no time had Defense ever requested speedy trial leading
up to this motion for docketing. Subsequent to the motion for
docketing Defense requested more continuance. In her e-mail of 8
November, the day after the motion for docketing was signed, Commander
Penland states very clearly her objection to the motion for docketing,
but she never raises a speedy trial issue. She doesn't say this is
violating my right to speedy trial, I want to go to trial tomorrow.
In fact, one can presume from looking at the e-mail it's actually the
goal of Lieutenant Commander Penland to delay the proceedings even
further and she's upset because her counsel has now decided on a firm
trial date, albeit five months in advance.
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So, you know, I presented case law to the Court which says
that R.C.M. 707 is not a sword, it should be used as a shield. Well,
in this case what you're getting is Defense trying to use the 707 rule
as a sword. They're trying to say, well, but for these actions we
could have--we could have got the case dismissed on 707. It's not why
the rule exists. It's not how it's properly applied. There is no
waiver of rights here. There's no prejudice against the accused.
It's all semantics. If the Defense had agreed to--had
disagreed and not entered into the motion for docketing, we would have
scheduled arraignment immediately thereafter. So it's all semantics.
And an argument that somehow this--by signing into this document
against her will has prejudiced the accused is unfounded.
With respect to 707, I would like to touch on that because
counsel has--Defense has raised a very serious issue and, as
delineated in my briefs--in my brief, our total is 98 days and that's
excluding the delay from 28 June to 24 August and I broke those
periods or that time up--the entire time up into four periods, but, as
you'll see from my brief, the focus is mainly on the 28 June to 30
July period and then the 30 July to 24 August.
Just briefly, sir, I think it's very important to note that
on that first period of delay the Government attempted to go forward
with an Article 32 on that date. The counsel for the accused withdrew
just days before the hearing. The Government persisted to go forward
with the hearing anyway and the accused--the counsel for the accused
at the hearing again reiterated he would not be defending the accused
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and had withdrawn from the case. In addition, the accused represented
at the hearing that she did, in fact, have retained defense counsel
but that the defense counsel was unavailable until August. When
pressed as to what the name and the address of that defense counsel
was so we could contact him and set up a date for an Article 32
immediately thereafter, accused refused to give that information until
she was assigned another military defense counsel and at which time
she would disclose that information through the counsel.
So I think there's no question that the delay from the 28
June hearing until the next date we attempted to do the Article 32 on
30 July should be excludable delay attributed to the Defense.
Now, on 30 July to 24 August counsel actually--defense
counsel actually requested a continuance and you have in your packet
an excludable delay written request. First they requested verbal
continuance before the hearing. When the hearing was continued at the
next hearing on 24 August, they actually submitted a written request
memorializing that the period from 30 July to 24 August was excludable
delay.
So when you do the math, it's very clear that the
Government did not violate the 120 day speedy trial clock, although
the time from preferral until arraignment or in this case entering in
the motion for docketing did exceed 120 days. Thank you, sir.
MJ: Captain Callahan, anything further?
IMC: Sir, just briefly on the motion for docketing issue again.
Sir, it is very separate and distinct issues whether ineffective
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assistance of counsel or whether you're waiving on a client's right
you're not supposed to.
For instance, suppose I have a client and it's a lousy case
to take to a members' panel and so I waive right to a jury trial and I
tell the judge we're going judge alone. It's the right thing to do
from a lawyer perspective, certainly not ineffective assistance of
counsel, and I go through and win that case because I didn't take a
case before members that I never should have taken before members.
Just because I wasn't ineffective in my assistance of counsel doesn't
give me a carte blanche to then waive certain rights of my client.
That's a constitutional right; that's a decision made by the client.
Again, in this case, simply because Lieutenant Commander
Penland's lawyer may not have been ineffective in his assistance of
counsel that doesn't give him the right or the authority to enter into
a motion for docketing without her consent. So the proper question is
not was he ineffective in his assistance of counsel, it's did he have
authority and does he have the ability to enter into a motion for
docketing without the consent of the accused.
And there's certainly no case law out there, no rules, no--
nothing that trial counsel can cite to say that he does. So he's left
in the same situation as I am on that one. Again, a new creation.
You know, I would say that any time you're dealing with the rights of
an individual, the Government should have to show why they can do it
or why those things can be waived and that's not out there either,
sir.
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MJ: Anything further, Lieutenant Commander Messer?
TC: Just that the Defense has shown no prejudice to the
accused, sir.
MJ: Thank you, counsel, for your presentations and arguments on
behalf of the Court. Certainly some rather interesting and perhaps
novel issues for me to address. I will endeavor to issue written
rulings for your benefit before our next scheduled hearing, which is
23 April.
If I did not already note, Appellate Exhibit XVI was
appended to the record and that was the note summary from Captain
Allred's 802 conference of 7 November, copies of which have been
provided to both parties.
Are there other matters we need to address on the record
this afternoon?
TC: Nothing from the Government, sir.
IMC: No, Your Honor.
MJ: Very well. Court stands in recess to 23 April. Carry on,
please.
[The Article 39(a) session recessed at 1318 hours, 10 April 2008.]
[END OF PAGE]
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[The Article 39(a) session was called to order at 1016 hours, 23 April
2008.]
MJ: Good morning. This Article 39(a) hearing is called to
order in the case of the United States v. Lieutenant Commander
Penland, United States Navy.
Let the record reflect that all parties present at the last
session of court are again present before the Court this morning.
Let me verify that Lieutenant Commander Penland is present
before the Court, attired in the appropriate uniform with all the
awards and decorations she's entitled to wear.
IMC: She is, Your Honor.
MJ: Very good.
The purpose for our 39(a) hearing this morning is several
fold. The first is to receive the Court's ruling on the five Defense
motions that were litigated at our last session of court. I will note
for the record that the rulings were issued via e-mail. They are in
written form and have been appended to the record as Appellate Exhibit
XVII and Appellate Exhibit XVIII.
The first appellate exhibit I referenced, Appellate Exhibit
XVII, covers four of the five Defense motions: Specifically the
motion to suppress which was granted in part; the motion to dismiss
pursuant to Rule for Courts-Martial 707, that was denied; the motion
to dismiss based on unlawful command influence and the unit commander
as accuser, that was denied; and the Defense motion for transcript of
the Article 32 hearing, that was deferred.
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With regard to Appellate Exhibit XVIII, the Defense motion
was granted in part to address deficiencies in the Article 32
convening process; the Court granted that motion in part to reopen the
Article 32 hearing and to provide a supplemental report to the
Convening Authority of this case, Commander Navy Region Southwest.
Have parties for both sides had an opportunity to review
the Court's rulings on these motions?
IMC: Yes, Your Honor.
TC: Yes, sir.
MJ: Very well. Let me just briefly revisit the Article 32
transcript issue. Captain Callahan, have you had an opportunity to
review the tapes of the Article 32 that were provided to you?
IMC: I have not, sir. Those don't work actually on Depot's, so
I was going to go up to Miramar and listen to them. However, from
speaking with the trial counsel, Captain [sic] Messer, and with
Commander Marshall, my understanding is a significant portion of the
testimony was not actually recorded anyway, that there's a defect in
the tapes.
MJ: That's regrettable.
IMC: So----
MJ: Well, all the more reason to reopen the Article 32 and
perhaps revisit those witnesses if you feel the need.
IMC: Yes, sir.
MJ: Very well. Are there other Defense motions at this time
that you would like to pursue?
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IMC: There are not, Your Honor.
MJ: Very well. Then let me also talk about the docketing of
this case. At present, we are scheduled for a full week of trial
beginning May 12th. Given the time line to reopen the Article 32,
that puts us right about at that point. If the parties who are
subject to the Court's order take the time that I've given them, I
felt that was reasonable, at least based on my review of the issues
concerned. That may require us to move the trial slightly to the
right and--but before doing that, I want to get your inputs.
Lieutenant Commander Messer, Government's perspective, do
you still want to commit to trial the week of 12 May?
TC: Sir, I think that would be problematic for the Government
in that obviously not knowing if there will be--what the results of
the reopening of the Article 32 would be. We have to have witnesses
in motion. I've already actually started to contact witnesses and
arrange travel for the 12th of May.
In addition, members--where members' questionnaires were
due on Friday, I have yet to provide those to the Defense. I've been
told by the Convening Authority that I should have them today or
tomorrow, but obviously we'd be asking those members to give up that
time in their schedules, too, not knowing if there's a court-martial.
As counsel for the Government, I'm kind of hesitant to
agree to go forward on that date if we don't even know what the
decision of the Convening Authority would be, given Article 32
results.
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MJ: Well, I certainly don't want to anticipate the Convening
Authority's action based on the Court's ruling, but also I don't want
to wait until we have notice of the action to set some time aside in
the docket because that would probably put us six more weeks down the
road.
TC: Yes, sir.
MJ: We've already litigated and addressed the speedy trial
motion, so I'm doubly hesitant to delay much further.
My other thought was we could push the case, if counsel are
available, to the following week, the week of 19 May, which would give
the Convening Authority some additional time and then also give the
Government and the Defense a little time to react, either to go to
trial as planned or to request a rescheduling of the trial.
Captain Callahan, your thoughts?
IMC: Sir, my thoughts are I guess fairly similar to Lieutenant
Commander Messer's on this one. It's somewhat early to be able to
tell for certain. I don't think it's a bad idea for the Court to set
a tentative date at this time, to have it set on the docket to make
sure it stays open. But at this point, having not yet conducted the
Article 32 and actually hear what those witnesses are going to say,
some of that stuff is going to affect the timing of the court-martial,
the witnesses the Defense is going to present at the court-martial and
such, and the Defense would be in a better position to address when to
proceed, you know, after the Article 32 has been held, sir.
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So I would certainly not object to the Court scheduling it
for the week afterward and then just leaving it open if any reason it
needs to be bumped further than that to allow the parties to submit an
appropriate continuance.
MJ: Are both counsel available the week of 19 May?
TC: I am, sir.
IMC: I am, sir.
MJ: Excellent. Well, then let's do this. Let us reschedule
this case for trial for that week, the week of 19 May. Hopefully that
will give each side an opportunity to prepare and respond accordingly
to the Court's ruling as to the Article 32 hearing. If we need to
reschedule that based on additional developments, that's obviously an
option, but I do want to try and lock in some time in our docket
should the case go forward as presently referred. So let's set aside
the week of 19 May for trial.
And it becomes problematic for me. I will be leaving the
bench the following week, so this case would then be passed off to
another judge. In looking at the long range docket, unless we procure
a reserve judge or a Marine judge, we are looking towards the middle
of June for trial. So just for planning purposes, that those appear
to be the options that are available to us.
Other matters we need to discuss on the record, counsel?
IMC: Not from Defense, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Nothing from the Government, sir.
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MJ: Very well. Thank you all for your time. The court stands
in recess until the 19th of May or otherwise notified. Carry on,
please.
[The Article 39(a) session recessed at 1024 hours, 23 April 2008.]
[END OF PAGE]
184
[The Article 39(a) session was called to order at 1007 hours, 14 May
2008.]
MJ: Good morning. This 39(a) hearing is called to order in the
case of the United States vs. Lieutenant Commander S. L. Penland,
United States Navy.
Let the record reflect that all parties present at the last
session are again present before the Court at this time. I will note
that our court reporter for this session is Ms. Dixon, and she has
been previously sworn.
Let me verify that Lieutenant Commander Penland is present
before the Court, attired in the appropriate uniform with all the
awards and decorations she's entitled to wear.
IMC: She is, Your Honor.
MJ: Thank you, Captain.
Good morning, Lieutenant Commander. How are you?
ACC: Good morning, sir. Just fine.
MJ: Good.
The purpose for our hearing this morning is several fold.
The first is to address a Defense request for continuance. That
request and motion has been marked Appellate Exhibit XIX, and the
Government's response in opposition to that request has been marked
Appellate Exhibit XX.
I was also not sure. I had not had a note that we have
received forum election, as well as entry of pleas, so I want to cross
check that this morning, as well, and address any other preliminary
185
pretrial matters that we need to address.
At present, this case is scheduled for trial to commence
next Monday, dependent upon the outcome of the Defense continuance
request.
So without further delay, why don't we address the Defense
continuance request. Captain Callahan, do you have any evidence you'd
like to offer in support of your request for continuance?
IMC: Yes, sir. Sir, I'd like to call Lieutenant Commander
Penland to the stand.
MJ: Very well.
ACC: Sir, could I carry my notebook just for notes, reference
notes?
MJ: Captain, do you desire your client to take a notebook to
the stand in aid of her testimony?
IMC: Sir, yes, sir, please.
MJ: Very well.
TC: Sir, this witness was previously sworn at a prior 39(a).
MJ: Thank you, Counselor.
[END OF PAGE]
186
LIEUTENANT COMMANDER SYNEEDA L. PENLAND, U.S. Navy, was recalled as a
witness for the defense, was reminded of her oath, and testified as
follows:
DIRECT EXAMINATION
Questions by the individual military counsel:
Q. Good morning, ma'am.
A. Good morning.
MJ: And I gather this is for the limited purpose of the motion?
IMC: It is, Your Honor.
MJ: Thank you.
Q. Lieutenant Commander Penland, do you know the status of the
original IG complaint that you submitted?
A. It's still pending.
Q. And when was that IG complaint submitted?
A. I first contacted Dave Bernell [ph] on the 30th of March of
2007.
Q. And what were the general things that you were requesting
the IG to investigate in that IG complaint?
A. The misconduct by Lieutenant Commander Marshall, Commander
Ward, Senior Chief Barton, Commander Masi pertaining to reprisal, acts
committed against me, and also to include contract violations and----
Q. And what was the approximate dollar value of the contract
violations that you were requesting they look into?
A. Up to about 20 million or more.
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Q. And no formal--that complaint is still ongoing, correct?
A. Yes, it is.
Q. Based on the status of that IG complaint, have you since
submitted a second IG complaint?
A. Yes. I submitted a second IG complaint of reprisal due to
failure to provide me whistle blower protection under the Whistle
Blower Protection Act as of 10 April directed to DOD IG.
Q. And who was the first IG complaint made to?
A. It was made to NECC IG.
Q. And that first IG--why didn't you make the second
complaint--IG complaint to the same----
TC: Objection. He's leading the witness.
MJ: Overruled.
WIT: In January of 2008 I received an e-mail confirmation from
Dave Bernell who was the NECC IG investigator. He informed me that he
has never at any point throughout the course of the investigation
investigated my allegations made against Lieutenant Commander
Marshall.
Q. And why was that?
A. He said that because he is not a lawyer and he could not
investigate any portion of my complaint of reprisal dealing with
Lieutenant Commander Marshall's misconduct.
Q. And did he tell you who could investigate that?
A. He told me that the Navy JAG IG can investigate it, that I
would have to submit my complaint directly to Navy JAG IG.
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Q. And did he say anything about the DOD IG being able to
handle such allegations?
A. I knew that DOD IG complaint could, but because my
complaint with him still remained open, he had advised me not to make
another complaint.
Q. And as part of the complaints that you've raised to the
DOD IG, did they complain--in addition to the failure to provide
whistle blower protection, did they also reiterate the contracting
issues and the other issues raised by the first IG complaint?
A. Most definitely, and I just recently was informed that the
DOD IG is currently investigating some of the allegations that I
raised about the contract violations. They're investigating NECC at
this moment.
Q. And who exactly is NECC?
A. MESG ONE, our ISIC.
Q. Okay. And can you explain exactly the command relationship
between NECC and Naval Coastal Warfare Group ONE.
A. The allegation that was raised at present was my position
as the assistant supply officer is being performed by a civilian
contractor and I had raised that many times before and because the
command has kept me TAD out of my billet for over a year now, that
Logistics Support, Inc., who provides contract support to NECC
subordinate units, they are, in fact, tasking their civilian
contractors to perform inherently governmental responsibilities.
189
Q. And can you explain exactly what NECC is, what it does,
what an ISIC is and how their command and what their job and oversight
is at Naval Coastal Warfare Group ONE. You can sum that up.
Q. As far as pertaining to Supply or just overall? I mean,
they're----
A. Overall command. They're the command in charge of Naval
Coastal Warfare Group----
A. Yes.
Q. ----ONE, correct?
A. Yes, they are.
Q. And Naval Coastal Warfare Group ONE--and Naval Coastal
Warfare Group ONE supplies falls under their purview?
A. Yes.
IMC: Thank you, ma'am.
Sir, I have no further questions.
MJ: Lieutenant Commander Messer.
TC: No questions, sir.
EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q. Commander Penland, do you have any idea, were you apprised
as to the time line for the completion of these investigations
concerning your complaints?
A. Sir, my initial complaint that I filed with NECC IG back in
March, Dave Bernell had a 10-day reporting requirement to report a
complaint of reprisal directly to DOD IG, and he failed to meet that
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time frame. And in June of 2007 I did receive confirmation from
BMC Lamoon [ph] who was investigating--he's the EOA of NECC--that Dave
Bernell did, in fact, give him a complete copy of my IG complaint.
And at that time the Chief Staff Officer of NECC, Captain
Ikehart [ph], had raised a question to Captain Hennessey [ph], who was
the supply officer of NECC, what contract violation is she alleging
that NECC had violated, which was the LS, Inc. contract because NECC
had executed that contract.
And Dave Bernell never reported--at least he failed to give
me confirmation as to exactly when he reported my complaint of
reprisal to DOD IG, which led me to have to file the Congressional
just to get a status of my complaint.
Q. But do you know in terms of the time line for completion of
any investigations?
A. A hundred--initially a complaint of reprisal, 90 days; but
a DOD IG complaint, 180 days.
Q. And let me clarify. You indicated your second IG complaint
was 10 April. Was that this year or last year?
A. Yes, sir, this year----
Q. That was this year, of '08.
A. ----of 2008.
Q. And that's the one that would have a 180-day time line
assigned to it?
A. Ninety days.
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Q. Ninety days.
A. Yes, sir.
Q. Have you been given any kind of status report concerning
your second complaint?
A. I did receive confirmation that they have taken immediate
action because it is a complaint of reprisal, which is why they like
to have those complete within 90 days so additional acts of reprisal
won't come about against a service member.
Q. Aside from the substance of the second complaint, were you
requested to provide any additional information or documentation
concerning the alleged acts of reprisal?
A. What they asked me to do is basically reference the first
one, and I did in its entirety, and they would--they would investigate
that, and I also included additional information to support my most
recent allegations.
MJ: Follow-on questions, Captain Callahan?
IMC: No. Thank you, Your Honor.
MJ: Lieutenant Commander Messer?
TC: No, sir.
MJ: Thank you, Commander Penland.
ACC: [Resuming seat at counsel table.]
MJ: Further evidence from the Defense in support of your
request for continuance?
IMC: No, Your Honor.
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MJ: Evidence from the prosecution in support of your position,
Commander Messer?
TC: Sir, the Government has appended to their response an
e-mail that was received this morning from the SJA of MESG ONE that
was sent to her from David Brunell--Bernell, who is the IG inspector,
which just gives a status of the investigation which the Defense cited
in their continuance request.
MJ: Captain Callahan, have you had an opportunity to review the
attachment?
IMC: I have, Your Honor.
MJ: Any objection to the Court's consideration of it?
IMC: No, Your Honor.
MJ: Very well. Aside from that, anything further, Commander
Messer?
TC: No, sir.
MJ: The Court has received and reviewed both the motion and the
response. I'm familiar with the arguments outlined in the request for
relief.
Captain Callahan, do you care to argue further in support
of your position seeking continuance?
IMC: If I may, please, briefly, Your Honor.
MJ: Certainly.
IMC: Sir, Commander Penland at this point has given over 18
years of service to the Navy and now at this point the Navy is trying
to rush her into a court-martial before these complaints are done.
193
These complaints and these investigations are in the Government
purview. This first complaint is over a year old at this point and
because of the date of this complaint, because of the Government
inaction on this complaint, Commander Penland has been forced to file
a second complaint, a complaint with a higher IG, a higher authority,
and alleging even misconduct on behalf of this first one because of
the length of time taken in this.
In the previous evidence presented to this Court the
Government has continually insisted that there is--these are baseless
allegations. But, sir, if these are baseless allegations, why is it
taking the government over a year to investigate these things, sir?
If these are baseless allegations, they should have been quickly
turned around, they should have been closed, they should have been
sealed.
This is an unusual situation, sir, where we have a very
senior Naval officer being sent to a general court-martial for types
of offenses that are normally handled at a board of inquiry. Also
note the fact that the person she allegedly had the affair with isn't
even at a court-martial, hasn't even been charged. So, sir, what's
the difference? Why do we have one at a general court-martial? Why
do we have one with no punishment? And, sir, the answer to that is
because one's a supply officer and one raised these allegations
involving multimillion dollar contract errors, multimillion dollar
contract irregularities, multimillion dollar contract illegalities.
And, sir, if the IG complaint comes back and informs and shows proof
194
of this, then this gives a very strong motive for Naval Coastal
Warfare Group ONE to fabricate evidence against my client.
We've got the formal commanding officer of Naval Coastal
Warfare Group ONE coming in and testifying. This is certainly a very
important piece of evidence. It could go a very long way towards
exculpating my client, and I certainly don't think it's unreasonable
based on the amount of time she's given the Marine Corps--or I'm
sorry, sir--the Navy to allow this court-martial to be continued to
allow the Government to finish these processes.
The fact that these complaints are taking so long is
completely out of Defense purview and it's completely within the
Government's hands. If the Government's been in such a hurry to move
this case, why do they have an open IG complaint from over a year,
sir?
So I think that in light of--we have potentially very
powerful evidence in light of Defense, that this case must be
continued to allow that evidence to be fleshed out. If the DOD IG
comes back and finds that there were acts of reprisal committed by the
command because she reported these multimillion contract illegalities,
that's certainly very strong evidence that could be used to impeach
Commander--or Captain Sturges' testimony. It would even give rise to
new motions to dismissing our case, sir.
So in light of that, I request a one-month continuance to
allow these IG complaints to continue to be forwarded. I would even
request that the Court do anything in the Court's power to try and
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speed these complaints up at this point. They are moving very slowly.
But again that's completely outside of the Defense's purview. Thank
you, sir.
MJ: Captain, you've also, in your motion, mentioned something
about a deposition of Lieutenant JG Wiggan.
IMC: Yes, sir. We would also request that, you know, in the
event that there is a continuance given, that we do be allowed to give
a deposition of him. He is a witness that could either end up being a
very strong Government witness or a very strong Defense witness. He
did make a written statement in which he denied any adultery occurred.
The Government's position has been that the adultery did occur and
he's going to admit to it.
But at this point the original deposition ordered did not
take place. He refused to testify at the Article 32 hearing and he
invoked his right to remain silent.
So it would certainly be I think appropriate to depose this
witness to allow both sides to know what, in fact, this witness is
going to say coming into court. Whether he's--you know, obviously
it's a very different Defense case if he's going to come in and say,
"Yes, that statement I made was false, adultery did occur," or if he
stands by that statement and says, "No, that statement was the truth,
adultery did not occur."
MJ: Have you had an opportunity to interview Lieutenant JG
Wiggan?
196
IMC: No, sir. Earlier attempts to contact him on my part, I was
not able to contact him. Previous defense counsel contacted him; he
did not speak with them. My understanding is he's refused to speak to
the Government, as well. At this point, I believe he's coming in
today or tomorrow. I am going to attempt to interview him again, sir,
in person. At this point, he does have an order to testify at the
trial. He did not have an order to testify at the Article 32 hearing.
MJ: Are you aware whether he's been provided some form of
immunity?
IMC: My understanding is he has been provided with a grant of
immunity from Admiral Hering.
MJ: Very well. Lieutenant Commander Messer.
TC: Sir, I'll address the IG complaint issue first. The
Court's well aware of the preferral date and the referral date of
charges, so I think it's a bit ridiculous for the--for defense counsel
to stand up in this court and argue that the Government is rushing the
accused to trial. This case has been with us for quite a while. In
fact, Defense just recently filed a speedy trial motion.
But putting that aside, the Government has provided every
due process right to Commander Penland throughout the process and the
issue raised now by Defense, there's no relevancy on the charges
pending before this Court. She's not been charged with any kind of
contract violation, failure to report a contract violation, anything
of that nature. This matter simply goes to a collateral issue which
is a bias of one government witness that will be providing evidence to
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support Charge II, which is the orders violation.
They've had ample opportunity to cross-examine Captain
Sturges at the reopening of the Article 32 as to this bias. And to
suggest that he somehow would be more biased if this investigation
were completed and substantiated, is pure speculation; I mean there's
nothing to support that he would lie more if all of a sudden the
investigation were substantiated in the favor of Commander Penland.
I think the Court has a duty to get this case to trial, to
give Commander Penland her right to a trial and to be heard; and to
just hold this in abeyance so every complaint that's been filed in
this matter is first resolved makes no sense.
Again, maybe the Government's position would be different
if this investigation had a direct relation to the charges before this
court, but it does not. Again, it's a collateral matter that just
goes to the bias of one witness and even that bias is debatable.
Defense will have every opportunity to cross-examine that witness at
trial and to investigate that bias and, therefore, we don't believe
that that's reasonable grounds for a continuance in this case.
With respect to the deposition, clearly the Defense request
does not comport with R.C.M. 702, the rule set forth there. I mean,
the whole purpose of a deposition is to preserve testimony of a
witness who will be unavailable to testify at trial. That is why the
Government sought a deposition of Lieutenant JG Wiggan before he
deployed on USS NIMITZ in January because there was a great likelihood
that he would be forward deployed and not available to testify at
198
trial. As it turns out, despite a deposition being ordered and a
deposition being convened, Lieutenant JG Wiggan did not show up at
that hearing, therefore, a deposition was not taken.
Now the Government has gone to great length and expense to
have Lieutenant JG Wiggan flown back early from deployment and be
present at trial to testify. There is also a grant of immunity and an
order to testify in this case to Lieutenant JG Wiggan from Rear
Admiral Hering. So the Government has the expectation that Lieutenant
JG Wiggan will take the stand and testify at trial. That immunity
order does extend to pretrial interviews, as well, so Defense has
every right, just as the Government does, to interview the witness
prior to trial with the cover of immunity.
MJ: When was the order to testify provided in this instance
concerning Lieutenant JG Wiggans?
TC: That order was signed on 6 May 2008. I have the original
copy here. I can provide a copy to the Court to attach as the next
appellate exhibit in order----
MJ: Very well.
TC: ----at the next break.
MJ: If you would do so, please, at the next recess.
Anything further in terms of----
TC: Nothing further from the Government, sir.
MJ: Captain Callahan?
IMC: Sir, in brief response, it certainly does make a big
difference whether these allegations are substantiated. Captain
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Sturges is denying all of them. I have cross-examined him on them and
he denies them. He takes the stand. I say, "Sir, isn't it true
you're fabricating this evidence because of you're covering up
multimillion dollar contract violations," and he says "No." I'm kind
of stuck; I'm done.
If I have an IG that comes back and says "Yes, you were
covering up multimillion dollar contract violations," now I've got
proof of his bias. I'm not--because he's denying it all, sir, which
is why this was so important. If he admitted, "Yes, I did all these
contract irregularities, I was upset because Lieutenant Commander
Penland came in, she started reporting these, she started digging
around," then fine, we wouldn't need the status of the IG
investigation if he admitted to it. But the problem is he's denying
it and that's why this investigation is important to the Defense, sir,
because it's proof that he is, in fact, making this up.
MJ: What about the time line for the completion of the IG
investigation. You've requested essentially a 30-day continuance.
Are you confident or fairly confident that you will have the answers
you seek?
IMC: Unfortunately, no, sir, I'm not, based on the first one has
taken a year. I understand there's time lines in which these are
supposed to be completed, and they do not appear to be adhered to in
this case. I would certainly hope that, you know, if a continuance
was granted and pressure was placed on these various IG offices, that
these complaints would be done in a timely manner. But I requested a
200
30-day continuance vice a larger continuance such that, if it's not
done, it can be readdressed later down the road.
MJ: Lieutenant Commander Messer, has the Government explored
the time line in terms of completion of the IG complaints?
TC: No, sir. We have inquired with the IG and we presented to
the Court the response we were given. The Inspector General has not
given an end date to that, and that is what troubles the Government in
this case is that if you give a--grant a continuance in this case,
this case is basically going to be held in abeyance until every
complaint that's been filed in this case is resolved. It could take
years. And I think that's exactly what's happening here is this is
just another delay tactic by the Defense to try to avoid the
inevitable which is this court--this case needs to get to court.
I'd also just like to mention what Defense counsel is
suggesting there, which is to somehow impeach a witness on a
collateral matter entering extrinsic evidence, is improper. If you
inquire as to bias of a witness and that witness denies it, you cannot
bring in extrinsic evidence to somehow impeach that witness on a
collateral issue. So, I mean, it's a moot point suggesting that they
need this investigation to somehow attack a witness that is testifying
to a collateral matter in this case.
MJ: Captain Callahan, your response as to the form of
impeachment?
IMC: Sir, my response is this isn't a collateral matter. This
is multimillion dollar contracts dealing. It's a very powerful motive
201
for him to lie and fabricate evidence if he is, in fact, covering up
multimillion dollars worth of contract illegalities.
Plus also, sir, if evidence does come out that Naval
Coastal Warfare Group ONE was, in fact--not only the command but--or
the commanding officer but the entire staff of Naval Coastal Warfare
Group ONE is illegally covering up these contracting issues, that's
going to give rise to a whole other set of motions depending on who
all they find was involved in these contracting irregularities.
There's obviously very strong motive for people to lie when millions
of dollars are on stake. If these people are illegally involved and
pushing millions of dollars where it doesn't belong, obviously they're
facing very lengthy brig time themselves, they're facing losing their
careers. There could be a lot of very senior officers involved that
have very strong motives to improperly refer charges, to improperly
influence the court, to improperly influence the witnesses, not just
Sturges himself, the other witnesses in the court.
And again, it all comes back to the question of why is one
not being charged at all and why is the other one being sent to a
general court-martial vice a BOI. So this is all not just some
lateral or collateral small issue. I think it comes down to the very
heart of why we have these type of charges at a general court-martial,
sir. It's certainly not a proper reason for anybody along the lines
to refer this to general court-martial if they're referring this to a
general court-martial to cover up millions of dollars worth of
contracting irregularities. And the only way the Court can be assured
202
that that's not occurring is to, in fact, allow these complaints to go
through.
And again, the Government suggestion that there's nothing
to these complaints, if there's nothing to these complaints, why are
they taking so long? An IG should be able to quickly and efficiently
handle claims if there's no basis to the claims. An IG certainly gets
plenty of baseless claims on a fairly regular basis. So just the fact
that it's taking them so long should certainly indicate to the Court
that there is, in fact, something to be investigated in this case and
it's important to the Court, to the United States Navy, to even the
United States Government that if these things are going on, that
they're properly adjudicated, they're properly handled and they're
properly brought to light and fixed.
MJ: Lieutenant Commander Messer, you've also in your response
indicated the time and trouble the Government's expended to prepare
this case for trial. If there is a reasonable continuance granted,
how is the Government adversely impacted by that continuance?
TC: Well, sir, at this point, as we've alluded to, Lieutenant
JG Wiggan has been taken out of an operational environment, removed
off USS NIMITZ which is forward deployed, he's the R Division on that
ship, and sent back here to testify at trial. He's already in motion.
He should be in San Diego as we speak.
There's five other out-of-area witnesses which my staff has
expended numerous hours arranging travel. We have witnesses coming
from Bahrain, Thailand and the East Coast of the United States.
203
Travel reservations have been made for those individuals. There have
been two out-of-area Government witnesses we've made arrangements for.
In addition, as you can imagine, assembling members for a
court-martial of such a senior officer is difficult on the Convening
Authority to find enough eligible members that the Convening Authority
can approve to be seated and that takes a lot of work.
So to continually move this trial right at the last minutes
does disenfranchise the Government and creates a logistic nightmare to
just have to go ahead and do it again a month from now.
Obviously you need to weigh the equities involved, but I
don't believe the Defense has shown a reasonable grounds for
continuance and you must balance that against the logistical problems
that would be experienced by the Government if you were to grant such
a request. That's why I put that in there, sir.
MJ: Aside from Lieutenant JG Wiggans, have any of the other
witnesses commenced their travel?
TC: No, sir.
MJ: Captain Callahan, care to respond to the Government's
concerns with regard to logistics and cost and expense?
IMC: Sir, it's one witness that's been moved so far; it's the
witness that needed to be interviewed anyway. If the case is
continued and he is flown out here, that does give us the opportunity
to interview him, speak with him face-to-face.
I understand the Government's had to go through the burden
of cutting these orders and such. They're still going to have to cut
204
the orders either way. People actually haven't begun travel.
In regards to picking members, I still don't have members'
questionnaires. So I don't know that members have even been
completely, you know, picked yet.
And certainly again it's the Government is the one that's
continually dragging their feet on the IG investigation. I understand
it's not the prosecution and I understand it's not even the local
command here, but again it's all within the Government's purview.
This is stuff that the Government's had complete control over and that
the Government has to be held accountable for their dragging their
feet on this. It's not something that--even if it's not necessarily
the prosecutor, it is the Government still.
So I think the small inequities that the Government may
face when weighed against what's at stake here do merit granting a
continuance, sir.
MJ: The Government has raised an interesting issue. The
Defense earlier had raised and litigated a speedy trial motion. Now
you request continuance. How do you reconcile the two competing
interests?
IMC: Yes, sir. They are two competing interests and speedy
trial was raised, was requested. We had hopes to get the case
dismissed and to have it re-referred and referred through a higher
command, to remove it out from Naval Coastal Warfare Group ONE and to
remove it out from Admiral Hering. That, in fact, did not happen.
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Based on the status of these complaints here, my client has
decided that she would prefer to waive any right to a speedy trial and
allow a continuance to happen to have these investigations--she feels
at this time that it is more important for these investigations to be
completed and to be done right and favorable results to be available
to be presented in her defense than it is to go to trial at a sooner
date, sir.
MJ: Lieutenant Commander Penland, have you discussed these
matters with your counsel----
ACC: Yes, sir, I have.
MJ: ----concerning your speedy trial rights?
ACC: Yes, sir.
MJ: And do you concur with his statement that you're willing to
forego a speedy trial in this instance if a continuance is granted to
explore the IG complaints?
ACC: Yes, sir. I feel that my initial IG complaint, because
that is still pending, not having the status of that, to include
serious allegations that were made in that initial complaint was never
investigated which give a lot of relevance to why I'm even here now.
MJ: But with regard to your right to speedy trial, are you
willing to forego that at this point?
ACC: Yes, sir.
MJ: And you've discussed those matters with your defense
counsel?
ACC: Yes, sir.
206
MJ: And you believe that is--that his advice has been in your
best interest concerning this continuance request?
ACC: Yes, sir.
MJ: Very well. Anything further from either side concerning
the Defense request for continuance?
IMC: Not from Defense, Your Honor.
TC: Sir, I'd just like to note that at the time the Defense
filed the speedy trial motion the same investigations were open at
that time, too. Nothing further.
MJ: Very well. The Court will take this matter under
advisement, to review the additional information submitted to it.
I believe, Government Counsel, you have an additional
submission you'd like to have marked during the recess.
TC: That's correct, sir.
MJ: Very well. The Court will receive and review that exhibit,
as well. I believe that will be Appellate Exhibit XXI.
If we could reassemble at 1100 hours. Court stands in
recess. Carry on, please.
[The session recessed at 1037 hours, 14 May 2008.]
[The session was called to order at 1110 hours, 14 May 2008.]
MJ: Court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the court at this time.
Counsel, are there other matters we need to address prior
to entry of the Court's ruling on the Defense motion for continuance?
207
TC: No, sir.
IMC: Not from Defense, Your Honor.
MJ: Very well. The Court enters the following ruling
pertaining to Appellate Exhibit XIX, the Defense request for
continuance:
Pursuant to Rule for Courts-Martial 906(b)(1), the Defense
motion for continuance is granted in part. This Court notes that this
is this particular defense counsel's first request for a continuance.
However, the Court also notes that the continuance
requested essentially is an open-ended continuance dependent on the
independent actions of inspector generals who are necessarily outside
the control of the Court.
The Court also notes that the basis, at least the first
basis for the requested continuance, completion of these inspector
general investigations, involve matters unrelated to the charged
offenses and are collateral to the merits of the case.
The Court finds that what is significant is that there were
allegations of fraud and reprisal brought by the accused against
Captain Sturges and others under his command raising their potential
impeachment for bias. Whether the allegations are ultimately founded
or unfounded by the investigative process collateral to these
proceedings does not enhance substantially or diminish substantially
the impeachment value of the alleged allegations. If unfounded,
Captain Sturges and others still would be subject to impeachment for
animosity towards the accused for bringing false complaints. If
208
ultimately founded, the same persons would still be subject to
impeachment for animosity towards the accused for bringing to light
alleged contracting improprieties and improper reprisal.
This Court, in weighing the competing interests of the
Government in bringing this case to trial and the interests of the
Defense in possibly developing additional impeachment evidence, this
Court finds that the interests of justice do not warrant the virtually
open-ended continuance requested now by the Defense.
On the other hand, however, this Court is concerned that a
crucial Government witness, Lieutenant JG Wiggans, has just recently
been ordered to testify and granted immunity. The substance of his
testimony remains uncertain and thus trial preparations of the Defense
incomplete.
Accordingly, this Court will grant a short delay to permit
the Defense an opportunity to interview Lieutenant JG Wiggans prior to
trial and, if necessary, additional time to procure a further remedy
should he again refuse to submit to pretrial interviews or should the
substance of his expected testimony mandate additional time to prepare
for trial.
Accordingly, the Defense request for continuing this trial
is granted in part as follows:
(1) Defense counsel will advise the trial counsel and the
military judge on Friday, 16 May, by noon, if further relief is
necessary concerning Lieutenant Wiggan's testimony;
209
(2) We will meet on Monday, 19 May, at 1000 hours, for a
39(a) session to determine if further relief is necessary and what
relief that should form concerning Lieutenant JG's expected testimony;
(3) If no further relief is necessary and deemed
appropriate by the Court, we will meet on Tuesday morning, at 0830
hours, to discuss at a 39(a) session counsel's proposed voir dire
questions, which will be due with the Court by close of business on
Friday, 16 May;
(4) Members' questionnaires will be due not later than
close of business tomorrow, Thursday, May 15th; and
(5) We will then seat the members on Tuesday, at 1030
hours, 20 May, and begin the selection process for this general court-
martial.
Government Counsel, assuming that no further delays are
necessary in this case, how long do you anticipate your case-in-chief
will take?
TC: Sir, as of right now, I have--I have nine witnesses listed
on my witness list. I may not be calling all of those witnesses. I
anticipate a full day of witness testimony. So if we're seating
members on Tuesday morning, probably my case will run into Wednesday
most definitely.
MJ: Very well. Captain Callahan, again I know you're at a
disadvantage since you haven't had an opportunity to interview
Lieutenant JG Wiggans, but at this point how long do you anticipate
the Defense case-in-chief would take if you desire to present a case
210
at all?
IMC: Not more than half a day, sir.
MJ: Very well. Well, with those estimates, counsel, again I
don't hold you to them, but for planning purposes if we are into trial
next week, there is a possibility that this case could spill over into
the holiday weekend or perhaps the very beginning of the following
week. So if you have some scheduling conflicts, please bring them to
the Court's attention.
Court's ruling clear to both parties concerning the Defense
continuance request?
TC: Sir, I'd ask for some--just ask you to reiterate the
different milestones you highlighted there.
MJ: Certainly. I think the first and the most crucial one will
be close of--by noon on Friday, the 16th. The defense counsel will
advise the Court and adversary counsel if there is additional relief
necessary, either a deposition of Lieutenant JG Wiggans or additional
continuance to prepare for his testimony.
If there is such relief requested, we will address it
Monday morning on the 19th of May at 1000 hours in a 39(a) session
here.
If no further relief is necessary and Lieutenant JG Wiggans
cooperates with pretrial investigations and pretrial interviews and
the Defense is prepared to go to trial based on the information
developed through those pretrial interviews, then Tuesday morning at
0830 we will meet here in a 39(a) session to discuss counsel's
211
proposed voir dire questions. Those voir dire questions will be due
by close of business Friday, the 16th of May.
Members' questionnaires will be due not later than close of
business tomorrow, 15 May.
And we should plan to seat the members, if there are no
additional delays or requests for remedies, Tuesday morning, at 1030
hours, 20 May, to begin the selection process and trial on the merits.
Anything further concerning the Court's ruling on the
Defense continuance request?
IMC: No, sir.
TC: No, sir.
MJ: Very well. Let me just--I'm not sure and my notes are not
clear on this in terms of Lieutenant Commander Penland's forum
election and entry of pleas, so in an abundance of caution I would
like to either revisit or for the first time on the record visit those
issues.
Lieutenant Commander Penland, quite a long time ago I
talked about the type of court-martial that can hear your case, to
include your right to be tried by members. If you were found guilty
of any member--of any offense by the members, then the members would
determine the appropriate sentence.
Do you recall that discussion?
ACC: Yes, sir.
MJ: I also advised you that at a proper time, and that would be
today, you may request to be tried by military judge alone. If that
212
request is approved, then I would serve as the military judge detailed
to hear your case and I would determine your guilt or innocence
concerning the alleged offenses. And if you were found guilty of any
offense, then I would determine the appropriate sentence based upon
any guilty findings.
Do you understand that option?
ACC: Yes, sir.
MJ: Have you discussed these choices with your defense counsel?
ACC: Yes, sir.
MJ: Do you wish to be tried by a court-martial composed of
members or by military judge alone?
ACC: By members, sir.
MJ: Very well. We will assemble the necessary members.
And, Captain Callahan, aside from the issue I have left
concerning Lieutenant JG Wiggans and appropriate relief, does the
Defense have any motions at this time?
IMC: No, Your Honor.
[END OF PAGE]
213
MJ: Is the accused prepared to enter pleas to the charged
offenses?
IMC: Yes, sir.
MJ: You may do so. Accused and Counsel, please rise.
[The accused and her counsel did as directed.]
MJ: I must advise you that any motion to dismiss any further
offenses--any further motions to dismiss any offenses or to grant any
other form of relief should be made at this time.
Captain Callahan?
IMC: Sir, no further motions. Commander Penland pleads:
To all Charges and Specifications: Not Guilty.
MJ: Very good. Your pleas will be entered into the record,
Commander. Please be seated.
[The accused and her counsel did as directed.]
MJ: Are there other matters we need to address on the record,
counsel?
IMC: Not from Defense, Your Honor.
TC: Sir, I think it should be addressed the issue of
communications to Lieutenant JG Wiggan on the part of the accused in
this case. There's some concern on my part that the witness may be
intimidated possibly by certain parties in this matter to either not
testify or to not comply with the order to do a pretrial interview.
I'd ask that the accused at this time be warned that any conversations
or communications with the potential witness in this matter would be
improper.
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MJ: Captain Callahan?
IMC: Well, sir, the Government's asking a somewhat unusual
request. I mean, do they have any evidence or anything to back up any
of these concerns or complaints they're raising?
MJ: Well, at this point, absent any further information or
evidence to suggest that Lieutenant Commander Penland would attempt to
obstruct justice in this case, the Court will not make such an
admonition on the record. Obviously counsel have independent
responsibilities and I expect them to fulfill those.
IMC: Understood, Your Honor.
TC: Nothing further, sir.
MJ: Very well. This court stands in recess until Monday
morning when we take up either preparations for trial or address
additional requested relief. Court stands in recess. Carry on.
[The Article 39(a) session recessed at 1121 hours, 14 May 2008.]
[END OF PAGE]
215
[The Article 39(a) session was called to order at 1018 hours, 19 May
2008.]
MJ: Good morning. This 39(a) hearing is called to order at
Naval Base San Diego in the case of the United States v. Lieutenant
Commander Penland, United States Navy.
Let the record reflect that all parties present at the last
session of court are again present before the Court this morning with
one substitution. Ms. Brown has been detailed court reporter for this
session, and she has been previously sworn.
Let me verify that Lieutenant Commander Penland is present
before the Court, attired in the appropriate uniform with all the
awards and decorations she's entitled to wear.
IMC: She is, Your Honor.
MJ: Very good. The purpose for our hearing this morning is to
address a number of issues that arose since our last session.
The first was a second request for a continuance from the
defense counsel which was submitted through e-mail exchange on the
16th of May. That has been marked as Appellate Exhibit XXXIII. The
Government response strongly opposing the continuance is marked
Appellate Exhibit XXIII. We'll take that matter up momentarily.
Additionally the Government had also filed with the Court a
motion to amend charges and specifications. That motion has been
marked as Appellate Exhibit XXVII and supporting the Government's
request is Appellate Exhibit XXVI. The Defense response to the
Government motion to amend in opposition has been marked Appellate
216
Exhibit XXV.
The Government has requested judicial notice and that's
been marked Appellate Exhibit XXVIII.
The Court has also marked and received the prospective
witness lists for both sides. Defense counsel's witness list is
Appellate Exhibit XXIX, and the Government's witness list is Appellate
Exhibit XXXI.
Also to be discussed this morning are a number of questions
related to the charges that the Court posed to the parties after
drafting findings instructions, specifically whether certain offenses
are properly stated offenses, whether the specifications were perhaps
lesser included offenses or multiplicious or otherwise unreasonable
multiplication of charges. We'll address that, as well, this morning
on the record.
And then the final matter before the Court to address is
counsel proposed voir dire questions. Defense counsel's proposed
questions have been marked Appellate Exhibit XXX, and the Government
questions XXXII.
Before going into the matters as I've indicated, I'd like
to summarize for our record and for Lieutenant Commander Penland's
benefit an 802 conference I held in chambers with both counsel
present.
We discussed briefly the continuance issue. Captain
Callahan, for the Defense, indicated that he had had an initial
interview or preliminary interview with Lieutenant JG Wiggan.
217
Apparently that was not a very fruitful interview in that Lieutenant
JG Wiggan declined to answer questions, although he did indicate at
some point that he had been divorced. Counsel had discussed and
investigated that issue a little further, that apparently there was a
final divorce in October of 2007. Counsel desired additional
opportunity to explore that matter, as well as some other matters
related to Lieutenant Wiggan's potential testimony as a witness in
this case. Apparently Lieutenant Wiggan had some questions and
concerns concerning the order to testify and the grant of testimonial
immunity, and he has an appointment this afternoon with a Marine
defense counsel at Miramar.
We discussed witness logistics issues if the case was
continued. Apparently the witnesses could still be procured if the
case was continued towards the end of the week.
I did not issue a ruling concerning the Defense continuance
request, but did discuss potential scheduling scenarios which would
permit the Defense additional time to interview Lieutenant Wiggan and
also the divorce issue, to develop any evidence related to that; that
rather than start the case tomorrow by seating the members and
producing evidence for them, that the members would be seated
Wednesday morning; counsel would be given Wednesday afternoon off to
finalize their case preparations to reflect any last-minute changes in
the anticipated evidence; and that trial on the merits would likely
proceed Thursday morning from 0800 to 1800 hours, as well as on
Friday; and both parties seem satisfied that they could present the
218
evidence they desired during that time frame; that the Court would
then reassemble on Tuesday morning for closing arguments and
instructions and deliberations and that, if a sentencing hearing was
necessary, that the case could continue into Wednesday.
We also discussed the Government's motion to amend. I
requested that Government provide as appellate exhibits the actual
instructions, the JER, the Joint Ethics Regulations that are pertinent
to the request to amend. Government counsel was going to research
that issue further to determine if the initial reference to the Joint
Ethics Regulation was simply in error or was an earlier version. I
indicated to counsel my desire to review the pertinent sections, to
compare them to see if there were any substantive differences, also if
there had been any changes concerning exceptions to the regulations
that apply to one version and not the other.
We discussed briefly judicial notice. Government has
requested the Court take judicial notice of the Joint Ethics
Regulation. That has been marked as Appellate Exhibit XXVIII.
There was some indication that there might also be a
request for judicial notice of a California statute concerning legal
separation.
I requested the parties provide witness lists and copies of
their voir dire questions to be marked, and those have been marked as
I've indicated.
We briefly discussed potential stipulations of fact. There
is one likely concerning jurisdiction that we will address, if not
219
today, preliminary to trial.
I was also informed that there is potentially one Defense
witness on the merits who would be produced to testify telephonically
since she is on deployment; with the accused's permission, we can do
that Friday, and the Government will make the necessary arrangements
to procure that testimony if the Defense decides to offer it to the
members.
And then I also discussed with counsel my desire to go into
the counsel voir dire questions and the voir dire process today to
make sure that's clear prior to trial.
Do counsel concur with my summation of the 802 conference?
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: Very good. Then why don't we discuss the continuance
issue. Captain Callahan, I have marked your request for continuance
from the 16th of May as Appellate Exhibit XXXIII. Essentially you
have requested the Court grant a continuance. If you would just
briefly summarize the purpose for the continuance and what you hope to
accomplish by it.
IMC: Briefly, sir, to be able to interview Lieutenant JG Wiggan.
At this point he has not subjected himself to interviews from either
myself or from trial counsel. Defense would like to be able to
interview this witness so that we may plan and properly prepare our
trial strategy based on what this witness will testify to.
220
And we'd also like to be able to further examine the
divorce status of the parties and whether or not they are, in fact,
married, and if they're divorced, when that date was official.
MJ: Very well. And with regard to Lieutenant JG Wiggan, you
have confirmed that he has an appointment with a defense counsel this
afternoon?
IMC: Yes, sir. He's supposed to be speaking with a counsel this
afternoon. I did, in fact, talk to his defense counsel. Defense
counsel indicated that he intended to get with him today and that they
would discuss issues with the grant of immunity in order to testify.
MJ: Very well. And, Lieutenant Commander Messer, the
Government's position concerning the Defense request for continuance?
TC: Sir, the Government opposes the request for continuance,
consider the issue with Lieutenant JG Wiggan a moot point and that
he's--both parties have already had a chance to interview with him.
He's indicated that he would not cooperate and answer questions at
that time. We don't see anything that would indicate he would change
his position.
With that said, as we discussed in the 802, if he has a
chance to consult with counsel today, I have no problem with Defense
or ourselves giving another shot at re-interviewing him either later
this afternoon or tomorrow morning to address that. However, beyond
that I don't see any reason to continue this trial waiting for
Lieutenant JG Wiggan to maybe change his mind because, you know,
nothing suggests he will and it's not an issue important enough to
221
warrant continuance of this matter.
With respect to the divorce issue, that can be resolved
very quickly. It seems like it already has been resolved by the--by
exhibits submitted by both Government and the inquiry made by Defense.
However, I would invite Defense to walk down to the courthouse, it's
merely two or three miles from here, and make a request for the
divorce decree. If there, in fact, is a divorce in this case, there
would be a divorce decree on record and the Defense would be entitled
to obtain a copy of that, and that should put this matter to rest.
They can then address the issue on cross-examination of the
Government's witness.
MJ: And how is the Government's case impacted if the Court
would continue the case beyond this week?
TC: If the case were to--as far as right now, sir, given what
you've suggested, starting with the members on Wednesday, going
Thursday and Friday, the Government can support that.
As we bleed into the following week, there becomes issues
with members. We have 10 members on this--on our members' panel that
have been told that they would be available for--needed to be
available for trial this week. So that is an issue and it could put
the Government in a difficult position if several of those have
already made plans for Tuesday or Wednesday of next week, and that's
an issue that we will address with them as soon as possible.
As far as Government witnesses, my understanding is that
those witnesses, as long as we do this on Thursday and Friday of this
222
week, those witnesses should be available.
MJ: And what about the Defense witnesses that have been
requested, are they also available?
TC: I do not know, sir.
MJ: Captain Callahan?
IMC: My understanding is that they will be, sir.
MJ: Very well. And certainly the parties can explore on voir
dire, as you desire, any difficulties with the members for this case
continuing to the following week. Certainly that's a prospect with
many of the cases we try here, that they may, in fact, continue into
the following week, so that is a matter that we would typically
address and adjust for as necessary.
Lieutenant Commander Messer, with regard to the potential
concerns that Lieutenant JG Wiggan had concerning the grant of
immunity, if you would, please, provide to his counsel the necessary
documentation and paperwork, if that has not already been provided to
Lieutenant JG Wiggan, concerning the immunity grant and order to
testify.
TC: Aye, sir. Just for the record, who is his defense counsel?
IMC: Captain John Dunn at Miramar.
TC: Yes, sir. I will contact Captain Dunn.
MJ: Very well. And also, with regard to the divorce issue,
Lieutenant Commander Messer, you did launch some inquiry concerning
that. If you would expand for the record what you discovered.
223
TC: Yes, sir. The Government has presented, as an attachment
to its e-mail opposing the continuance motion by Defense, three
different pieces of evidence. The first is a notice of a hearing
indicating that there would be a hearing in the divorce proceedings
between Lieutenant JG Wiggan and Chief Lewis-Wiggan on 5 June 2008.
Further, the Government has attached a paragraph that's taken off of
the Superior Court of California, County of San Diego, Web site which
says a divorce is not final until all matters are complete in that
matter. And then we also have the NSIPs [ph] printouts from both
Lieutenant JG Wiggan and Chief Wiggan. Lieutenant JG Wiggan's NSIPs
dependency data page indicates that he was divorced as of 26 October
2007. Chief Lewis-Wiggan's data indicates that she is still married
and that she was married on 16 March 2001.
MJ: And what's the Government's position concerning the
relevance of the divorce issue?
TC: The Government considers this a collateral matter that can
be taken up on cross-examination. It's not a--there's nothing that
suggests that the parties were divorced at the time--either before or
at the time of the alleged adultery. This is all after the fact. Any
use of this information would go to the credibility of Chief Lewis-
Wiggan or Lieutenant JG Wiggan. It's a collateral matter attacking
either bias or truthfulness/untruthfulness and it's certainly not
grounds for a continuance in this case.
MJ: Captain Callahan, care to respond?
224
IMC: Sir, just briefly. I did phone tag with the attorney that
is representing Lieutenant Wiggan for his divorce proceedings. He
indicated that the divorce has been finalized; it's been finalized for
some time. Again this is what he indicated to me in a voice mail
message. He said that the proceedings were bifurcated, which is what
is usually done in California now when parties own real estate due to
difficulties with getting the real estate sold. The divorce will be
finalized, but the case will stay--remain open in the courthouse for
the division of the assets until the house is actually sold so they
can determine whether or not any monies can be distributed from that
or I guess potentially whether or not any debt is going to be
distributed from that on a short sale. So his indication is that they
are, in fact, divorced and the divorce is finalized, sir.
MJ: Anything further from either side on the continuance issue?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. The Court is prepared to issue a ruling
concerning the Defense request for a continuance.
The Court has at this point, having reviewed the evidence
submitted to it, as well as considered the arguments of both sides,
determined that a reasonable continuance is appropriate in the
interest of justice.
However, with regard to the remaining matters that counsel
desire to address during the continuance, the Court finds a brief
recess is more appropriate given the interest at stake for both
225
parties and, therefore, will grant a short recess to permit defense
counsel an additional opportunity to interview Lieutenant JG Wiggan,
as well as to investigate the status of the divorce situation
involving him as well as Chief Lewis-Wiggan.
A continuance will essentially shift the trial towards the
end of the week. As I indicated earlier, we will assemble the members
at 0800 on Wednesday morning of this week, 21 May. We will hopefully
seat a quorum. On Wednesday counsel will have the afternoon to
finalize their preparations for trial and adjust, as necessary, their
opening statements, and then we will begin with the trial on the
merits to commence with opening statements at 0800, Thursday morning,
22 May, essentially receive evidence from 0800 to 1800 hours on
Thursday and Friday. Counsel indicated that that should be sufficient
to provide the evidence to the members and then spill into the
following week; given that Monday is a federal holiday, we'll pick up
with the members with closing arguments or rebuttal evidence Tuesday
morning, the findings instructions and then deliberations.
So the Defense request for continuance is granted in part,
to provide the Defense additional time to prepare its case on the
merits, to develop any potential impeachment evidence and to adjust,
as necessary, to any potential testimony that will be provided by
Lieutenant JG Wiggan.
The Court's ruling clear as to the Defense motion for
continuance?
226
TC: Yes, sir. What time would you like the members here on
Wednesday?
MJ: 0800 would be fine.
TC: Aye, sir.
MJ: Defense counsel clear, as well?
IMC: Yes, Your Honor.
MJ: Let's next address the Government motion to amend the
charges. The Government request to amend has been marked Appellate
Exhibit XXVII. Also in support of that is Appellate Exhibit XXVI.
The Defense response in opposition has been marked Appellate Exhibit
XXV.
Lieutenant Commander Messer, were you able to procure the
relevant portions of the Joint Ethics Regulations?
TC: I have not. As I said, sir, the current instruction is
already in evidence, sir, as an appellate exhibit as the document I'm
requesting judicial notice of. I will provide another copy for the
purpose of your review. I have not had a chance to research to find
if there is a prior copy of the JER that was erroneously alleged.
MJ: Very well. Well, again I'd like to make a comparison to
see if there's any substantial changes and whether there are some
exceptions or exclusions that apply to one version and not the other
which would aid in the Court's determination as to whether this was a
major or minor change, and I think that probably at this point it
would be more prudent to just defer until we have the opportunity to
review the two cited sections.
227
Counsel, why don't we then go into the questions I've
raised in drafting the findings instructions in this case. I had a
number of questions concerning the form of the charges or
specifications. These questions I sent to you by electronic message
on May 15th and both parties apparently have had an opportunity to
consider the questions since I have received from counsel some
responses to those questions. Specifically the Government's response
was marked as Appellate Exhibit XXIV.
I don't believe I've had a written response from defense
counsel, but I'll certainly give you an opportunity to respond orally
here, Captain Callahan. You did provide several cases; I gather that
will aid in your argument.
With regard to the first question, "Is the Specification of
Charge I a lesser included offense, multiplicious or an unreasonable
multiplication of charges of Specification 1 of Charge III,"
Lieutenant Commander Messer, I believe in your response you provided
some amplifying detail that apparently will show that there is
essentially a separate offense involved. Is that correct?
TC: That's correct, sir.
MJ: Would you amplify for the record how so.
TC: Yes, sir. The Government's position is that these offenses
arise out of separate criminal transactions. With respect to Charge I
and the sole Specification thereunder, the allegation there is that
the accused used her personal--excuse me--that the accused used her
government issued cell phone to make personal phone calls. In support
228
of that allegation, the Government will present evidence in the form
of the phone records of her cell phone that indicate during the period
alleged, September '06 to January '07, approximately 140 phone calls
were made. Of those 140 phone calls that the Government will argue
are personal, only four of those were to the USS MOBILE BAY which was
Chief Lewis-Wiggan's, then NC1 Lewis-Wiggan's place of work in her
command.
When you compare that to Charge III, Specification 1, which
alleges phone calls to the USS MOBILE BAY that disrupted NC1 Lewis-
Wiggan at work, yes, the Government would admit that those four phone
calls are part of Charge--the four phone calls I referenced in Charge
I are part of Charge III, Spec. 1, however, the transaction--the
criminal transaction that the Government alleges in Charge III, Spec 1
is not an abuse of or misuse of a government phone, it is the abuse of
a--it is the abuse of rank, if you will, basically USS MOBILE BAY for
unofficial purposes. And I describe it better in my paragraph there
than I have here, but the allegation is that phone calls were made
from various phones, not just her government phone, but from home
phones, any phones. That's not the important part. The important
part is that the calls were made into an official line on the ship,
that the accused used her rank in identifying herself when she made
these calls that caused personnel on the ship to stop what they were
doing and go get NC1 Lewis-Wiggan; and NC1 Lewis-Wiggan will testify
that she was uncomfortable to not accept that phone call, given the
rank of the person who was calling. So that's a conduct unbecoming
229
specification, the conduct unbecoming being the disrupting of the
workday on board the ship by calling NC1 Lewis-Wiggan for purely
personal matters.
So again, although there is a little bleed over in that
four of those phone calls alleged in the first charge are also part of
the facts that support Charge III, it's not to the level that would--
that the Court should deem that either multiplicious or an
unreasonable--excuse me--an unlawful multiplication of charges.
They're two separate distinct offenses.
MJ: And I think, as I noted in our 802 conference, my concern
primarily was in drafting the findings instructions. So it may be
premature at this point since we don't know what the evidence is going
to support in terms of instructions.
Captain Callahan, the cases you provided don't go to this
issue. Do you care to argue in terms of the----
IMC: No argument on this issue, sir. The Defense feels that
this issue is going to be better addressed and resolved at the close
of the evidence presented.
MJ: Very well. The second question was with regard to
Specification 3 of Charge III. In drafting the findings instructions,
I noted in that specification certain operative language, "conduct
unbecoming" or similar words, was missing from that specification.
Does this, in fact, state an offense, Lieutenant Commander Messer?
TC: Well, sir, the Government responds with two separate
arguments.
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The first is that although the Government would concede
that the operative language is missing from the specification, there
is case law that exists that supports the notion that certain charges
can be found through construction and we cited that case law there.
In support of the idea of the specification being properly alleged
through construction, we've noted that the citation heading can turn--
contains the term "conduct unbecoming of an officer." The
specification itself refers to unprofessional conduct of the accused
and although it does not use the operative language, again by
construction the Court could construe that the Defense was on notice
as to what was being charged and was able to adequately prepare for
that charge.
In the alternative, the Government argues that even if--
even if the Court does find that the 133 charge is not properly
stated, this can be considered a lesser included offense under Article
134, and we've cited the various steps in that that could be found.
U.S. v. Rodriguez, the court did recognize that an Article 134 offense
was a lesser included offense of Article 133. The R.C.M. specifically
states that an error in citation is not fatal to a charge if there's
no prejudice to the accused. In other words, the Government should be
allowed to amend that specification to refer--to read Article 134, if
necessary, or the Court could just consider it as the lesser included
offense of 133.
And then, finally, in U.S. v. Parrish, the court clearly
stated that you do not have to have the prejudicial to good order and
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discipline or service discrediting language in the specification to be
considered as a general Article 134 offense.
So, just to sum up, we feel that the 133 charge should
stand, even though the operative language is missing, under the
construction theory; or, in the alternative, that the charge should
be--still remain on the charge sheet and it just be--the elements be
that are required of the lesser included offense which is the 134.
MJ: Captain Callahan, Defense position as to this matter?
IMC: Yes, sir. Sir, the Defense position is that that spec is
not a valid spec without the proper language. The cases cited by the
Government don't really apply to this case. They deal with conduct
that is more openly and obviously criminal, for instance, with a drug
case where the court allowed the charge to go forward even without the
word "wrongful" because of the very nature, in fact, of drugs.
This case is more similar to United States vs. King which
addresses an adultery case where they found without the operative
language it was not a proper charge. What we have here is not
something that is on its face a clear and obvious criminal conduct
such as the drugs. What we have without the operative language is
just distributing photographs of a naked man to his wife. There is no
evidence or anything that can go along with that to fill in and allow
them to assume the wrongful, such as in a case that the Government
cited. That is required to be cited and put in the specification by
the Government; because it was not in the specification, it is not a
valid specification.
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MJ: What about the lesser included offense theory that the
Government's urged as a corrective measure here?
IMC: I don't believe that that would be a proper way to correct
this either, sir. I think that simply on its face it's an invalid
specification of a charge and, as such, the Court should dismiss it.
MJ: Lieutenant Commander Messer, anything further?
TC: No, sir.
MJ: All right. With regard to the final question that I had in
drafting the instructions, Specification 1 of Charge IV, one of the
crucial elements is that there's an indecent act committed with
another person. It was not clear, at least in the context of the
specification, as to what the act was that the accused allegedly
committed with another person in distributing photographs. Perhaps
the photographs themselves were indecent or lewd, but it wasn't clear
that that was an act that, at least in the traditional notion, would
be supported by Article 134, indecent acts violation.
Lieutenant Commander Messer, Government's position, please?
TC: Sir, the Government's position is that this specification
and charge do allege an offense. Here you clearly have all three
elements have been properly alleged. You have a person committing an
indecent act with another. The person is the accused, the other
person is NC1 Lewis-Wiggan. There's no requirement that the two have
to be acting in concert, that they have to be accomplices. In fact,
in this case the Government alleges that NC1 Lewis-Wiggan is, in fact,
the victim.
233
But again we have nude photographs that are being sent and
the indecent act is the sending of the photographs through e-mail to
the wife of the nude--to the wife of the person who was nude in the
photographs. The Government recognizes that normally you see the
specification charged in a more traditional manner where there's an
allegation of either group sex or public sex, but just because we've--
the Government has chose to use this offense in a nontraditional
manner does not mean that that--that it should not be allowed, as long
as the elements are met.
The question as to whether or not the act of sending the
nude photos through e-mail to the wife was indecent is a question of
fact for the members. And Defense is more than welcome to argue on
close that that burden has not been met by the Government, but it's
certainly not the Judge's discretion here to throw out the
specification as we have adequately alleged an offense under the code.
MJ: Captain Callahan, Defense position as to this issue?
IMC: Sir, the Defense position is that the Government has not
alleged an offense under the code. The code is quite clear that the
indecent acts have to occur with another and the Defense would further
argue that the Government bears the burden on this. The Government
has to be able to show why they can charge something a certain way,
not just pick a charge and say "This isn't normally done, this is a
nontraditional charge, but we're going to do it this way because
there's nothing that says we can't do it this way." In fact, the law
works the opposite direction, sir.
234
And the closest thing I can find to anything dealing with
this is United States vs. Rollings [ph], which I provided to the
Court; and, in that, they certainly do take a very careful and close
look at what "with another" means. And under the analysis provided by
that case, sending an e-mail to somebody is certainly not an act with
another, which is required for this charge. What we have in this case
and what the court allowed in this case was a direct distribution of
pornographic material with the intent for group masturbation. So we
did have clearly an act with another, that the court found, because it
was directly handed to somebody and because it was done as part of an
act in concert together.
What we have in this case is an e-mail that's sent and then
sometime later on down the road checked and received by another
individual. It's not an act with another under the meaning of the
statute, sir.
MJ: Lieutenant Commander Messer, do you have----
TC: Well, sir, I give this case no weight as it does speak
directly to the issue of when you hand someone, a child, a
pornographic magazine for the purpose of group masturbation.
But it seems the Defense is trying to prove a positive with
a negative here. I mean, the case does not address the issue of
sending an e-mail to another at all and it is not on point. So,
again, I don't think that it carries any weight.
And there's nothing in the case law that suggest that the
act has to be done in front of the other person or with the other
235
person. In fact, it can be done at remote in time, or there is
nothing to suggest it has to be done. So one can assume that it can
be done separate.
In this case, just because they weren't together when the
e-mails were sent, I mean, that's the nature of e-mail is it's sent
from one place to another. It's still an indecent act with another
under the--under the offense--or under the code.
MJ: Does the Government have any case authority to support its
position with regard to this novel application of Article 134?
TC: No, sir, the Government could find no case law on which a
charge is--at least on appeal this type of scenario has been raised.
MJ: Captain Callahan, anything further concerning this issue?
IMC: Yes, sir. Just the clear language of the statute says it
has to be an indecent act with another. So for the Government to
suggest it doesn't actually have to be with another, it can be through
e-mail remote in time and space, it goes against the very wording of
the charge, sir, and the very nature of the statute.
MJ: How does the Defense respond to the language in this
particular case as decision that suggested if it was not, in fact, an
act with another, the offense could still be supported as a generic
Article 134, conduct prejudicial to good order and discipline offense
or a service discrediting offense, which would be a lesser included
offense of the charged act?
IMC: Yes, sir. The Government could potentially present
evidence that would show a lesser included offense. But certainly, as
236
it's charged, that they haven't charged anything that's an indecent
act.
MJ: Lieutenant Commander Messer, anything further on this
issue?
TC: Nothing further, sir.
MJ: Very well. Counsel, I'll take your arguments under
submission. I'm going to defer ruling in terms of these specific
offenses until Wednesday morning at 0800 hours.
If you should come across any additional case authority
that supports your position or is more on point concerning the issues
before the Court as to the nature of the specifications, I would
appreciate your providing that to the Court and your adversary counsel
prior to that time; and I'll push the members' assembly time to 0900
hours since we'll have to make changes, if necessary, to the cleansed
charge sheet.
The last matter I'd like to discuss with you on the record
this morning is the voir dire process. Do you both have the Navy-
Marine Corps Trial Guide available?
Captain Callahan?
IMC: Sir, I left mine in my office.
TC: I do not have mine, sir.
MJ: All right. Why don't we take a recess here in a moment.
Specifically, I'm going to go through Appendix A1 with you which are
the group voir dire questions that the Court typically asks. I'll
need your input for those, and it would be helpful if you actually had
237
the questions in front of you. So perhaps you can borrow one from
your defense counsel compatriots.
IMC: Yes, sir.
MJ: Very well. Anything else we need to address on the record
before we take a brief recess here?
IMC: Not from Defense, Your Honor.
TC: No, sir.
MJ: Very well. Commander Messer, you might want to get the
word out to your witnesses concerning the adjusted schedule. Why
don't we take about 20 minutes here for that to occur, as well as for
you to procure your trial guides. Court stands in recess. Please
reassemble at quarter after the hour. Carry on, please.
[The session recessed at 1056 hours, 19 May 2008.]
[The session was called to order at 1125 hours, 19 May 2008.]
MJ: Court is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time.
Counsel, I'd like to take a moment with you to go over the
voir dire process, if you would please follow along in the Navy-Marine
Corps Trial Guide, Appendix A1. Typically I'll ask all the questions
in this section that apply to the circumstances of the case and I need
some input from you to make that determination. If I don't discuss a
question, you can presume that I will ask the question as it's
reflected in the trial guide.
238
I'll begin on Page A1-1, Question Number 4. I will use the
witness list you've provided to ask the members if they're familiar
with the prospective witnesses. Again if there's any changes,
especially any additions, please let me know before we assemble the
members.
In Question 6 I noted that we have officer members--I'm
sorry--officer witnesses. So I will ask Question 6 tailored for
officer witnesses. We also have, I gather, enlisted witnesses, as
well, so that would be an appropriate question.
I could not tell but did not immediately discern that there
are law enforcement witnesses. Are there any law enforcement
witnesses in the case?
TC: Not for the Government, sir.
IMC: No, Your Honor.
MJ: Very well. All be--please be seated.
[All persons did as directed.]
MJ: All right. So I'll skip that part. I'll also skip
Questions 7 and 8. I gather there are no forensic tests involved?
TC: Correct, sir.
MJ: Okay. Is this case related to any other case?
TC: No, sir.
IMC: Not that I'm aware of, sir.
MJ: Okay. So I'll skip Question 10. That part of Question 10
I'll ask, the first part of Question 10.
239
Okay. Moving through the trial guide, Question 15, again I
will advise the members that this case likely will continue into next
week through Wednesday, to determine if that's going to be a hardship
for any of the members.
I'll ask Question 16 and 17 as they're reflected in the
trial guide.
Moving on to Page A1-4, I typically also read with regard
to sentencing in Question 21--for example, I won't ask that question
since that's for guilty plea, but all the other questions that talk
about sentencing, I preface that with "If sentencing becomes
necessary."
Have counsel calculated the maximum authorized punishments
based upon the charged offenses? Commander Messer?
TC: Sir, the Government has not at this point, given we were
going to wait till the--we have not, sir.
IMC: I have in the past, sir. I believe it's 16 years off the
top of my head, but again that's----
MJ: All right. Why don't we work on that today and come up
with some figure. That may be impacted if there's any changes to the
charges and specifications, but we'll start with 16 years and we'll
work from there. But again that's an issue we need to revisit.
Very well. The bottom of that Page A1-5, this does not
appear to be a sexual harassment case, so I'll skip Question 29.
Counsel agree?
TC: Yes, sir.
240
IMC: Agree, Your Honor.
MJ: Very well. I will ask Question 30 concerning not only the
present Convening Authority, but also with regard to Captain Sturges.
I'm sorry. Yes, that's right. To determine if any of the witnesses
know either of those individuals.
TC: Sir, Captain Sturges is no longer in the Navy. He's no
longer the convening authority for MESG ONE.
MJ: I just want to make sure the prospective members--to
determine if they know him.
TC: Yes, sir.
MJ: If we don't ask, there's really no place to ask them that,
so----
TC: Understood.
MJ: ----since there was some allegations that he might have
been--had more than a personal interest in the case, if he knew any of
the prospective members; given their seniority, there's a possibility
that he may. I just want to make sure that's not the case.
TC: Aye, sir.
MJ: So I'll ask that, as well. And then also obviously with
regard to our present Convening Authority. I'm not--wouldn't be too
surprised if the prospective members knew Rear Admiral Hering since
he's the regional commander.
And I notice a number of your proposed voir dire questions
get into that issue, so I'll let counsel go into that, as well, with
the members.
241
IMC: Yes, Your Honor.
MJ: Okay. With regard to Question 31, I'll ask that question
specifically with regard to Lieutenant Commander Penland.
Are there prospective witnesses of other ethnic or racial
backgrounds that counsel want to discuss with the members?
IMC: Not Defense, Your Honor.
TC: No, sir.
MJ: Okay. And Question 32 I don't expect will be necessary.
Then I'll invite your counsel questions and then, finally,
I'll finish up with the catchall question, Number 33.
In the past, I have been a little more restrictive in
permitting counsel questions even if they were redundant; I'll permit
them to be asked of the members. Obviously just because you've
written out a question and I've approved it doesn't necessarily mean
you'll want to ask it if it's already been addressed by another
question, but I'll let counsel run that risk.
Let's discuss the Defense proposed voir dire questions
first since that was the first one marked with the court and that
would be Appellate Exhibit XXX.
TC: Sir, I still have never received a copy of that.
MJ: Oh, okay.
IMC: My apologies. I thought I had e-mailed that to you.
MJ: All right. Why don't we come back to that. We'll take up
the Government's questions first and then we'll give you a recess.
Lieutenant Commander Messer.
242
IMC: [Handing a copy of AE XXX to trial counsel.]
TC: I've just been provided a copy. That's fine, sir. I can
follow along.
MJ: Oh, okay. I just wanted to make sure you're familiar with
them and to determine if you have any potential objections or concerns
with regard to the----
TC: We can address them now, sir.
MJ: Very well. With regard to the Defense proposed voir dire,
my only suggestion was there are a number of "he's." I would change
that to "she" to reflect the gender of your client.
IMC: Yes, sir.
MJ: And also I note that we typically use the term "accused" in
our system. You've chosen "defendant." Either/or and however you
want to address that is fine. You just might want to make that
comparison for the members so they're not confused.
IMC: Yes, Your Honor.
MJ: Since I think a couple of them actually have been prior
court-martial members, if I recall their questionnaires [marked as
AE XXII], two of them I think were, in fact, in cases involving me.
One was Commander Grundy; he was a senior member in one case. I think
it was BH fraud case. And Captain Blonien, she was in a case; I'm not
sure she actually sat through it, though. It may have been a members
for sentencing case. But we'll go into that individually with the
members.
243
Okay. With regard to the Defense questions, Commander
Messer, any objections to the questions posed?
TC: Just a moment, sir. [Reviewing AE XXX.]
Sir, I do have an issue with Questions 7 and 8, and I think
that may be misleading to the members in that, although it's not a
matter for this court, it seems they're positioning themselves to make
an argument that this case can be best resolved at NJP. This case
is--there was a mast refusal in this case. I don't think that's
proper to be raising that issue with the members at this juncture. I
have no problem with Question 8, but I think juxtaposing it with
Question 7 is a bit misleading.
MJ: Captain Callahan, what potential challenge are you trying
to develop in Question 7?
IMC: Sir, the challenge dealing with NJPs and boards of inquiry
and such are just to make sure the members understand the different
levels of proof and such as appropriate for a court-martial vice an
NJP, not to somehow through voir dire suggest that an NJP is----
TC: How is it relevant then? This isn't NJP. This is a court-
martial.
IMC: Correct. But that's important if the members understand,
because so many of the members are going to have--senior members that
have given NJP, that they need to make sure they keep in mind that the
standards that they used for when they imposed NJP are not the same
that they use when they come into this court-martial.
244
MJ: Well, maybe you can rephrase Question 7 to reflect levels
of proof or burdens of proof, if you wish.
IMC: Yes, sir.
MJ: Certainly the members, since a number of them are--well,
all of them are fairly senior--may have had the authority to impose
non judicial punishment in the past. I think that's a fair question
to pose to them and perhaps even the consequences of non judicial
punishment as opposed to a court conviction. So I'll permit the
questions, but if you would please refocus them to incorporate your
concerns with regard to the levels or burdens of proof.
IMC: Yes, Your Honor.
MJ: Commander Messer, other concerns with regard to the Defense
questions?
TC: Just a moment, sir, briefly. I would note that Admiral
Hering's name is misspelled. There is only one R in his name.
[Reviewing AE XXX.]
Question Number 28 is--I think is a bit vague as to has any
member ever faced an allegation of violating the law. I don't know.
I think members would be confused by that question and I don't know
that that's proper in group voir dire anyway.
MJ: Captain Callahan?
IMC: Sir, what I'm looking for is people that may have been
involved with the law enforcement process through their being accused
of a crime themselves and because of their experiences dealing with
that have affected their opinion of the justice system or potentially
245
formed biases in regards to my particular client. I have no problem
asking that question in individual voir dire vice group voir dire if
the Court feel it more appropriate.
MJ: Well, I think since it's phrased as an allegation, I don't
believe that's going to bring undue attention to any particular
member, so if you'd like, you can ask it as a group, or if you want to
reserve it for individual, I'll leave that to your discretion.
IMC: Yes, Your Honor.
MJ: Commander Messer, other concerns?
TC: Just a minute, sir. [Reviewing AE XXX.]
No, sir, no other objections.
MJ: Very well. You may ask the questions subject to the
limitations we've discussed, Captain Callahan.
And have you had an opportunity review Appellate Exhibit
XXXII, the Government's proposed voir dire questions?
IMC: I have, Your Honor.
MJ: Any objection to any of the questions posed?
IMC: Yes, sir, to Question Number 7. I think it's an improper
question getting into argument as to the deliberative process between
the members, that one member doesn't want to see a guilty verdict and
whether--or a punishment because another member doesn't want to see a
punishment, and whether that's going to affect the deliberative
process of the member.
MJ: Lieutenant Commander Messer, what are you trying to develop
in terms of bias or potential basis for challenge here?
246
TC: Well, exactly, sir. I mean, the--what we're trying to
establish is that the members aren't biased in any way, both that they
have a proclivity to convict or a proclivity to acquit. So it's the
Government's job to determine that no one comes in with any
predisposition, or I should say the predisposition to follow someone
else or to be inclined to. Pretty straightforward question.
MJ: I'll allow the question. I don't think it's going to get
into any particular deliberative process. It certainly would be
geared to determine if the members feel that they are sufficiently
independent of the other members so that they exercise their own
opinions, and that's certainly what we want them to do. So I'll allow
the question. I don't think it's going to imbed in them any
preconceived approach as to one side or the other.
Other concerns, Captain?
IMC: Ten and 11, sir. They're getting into argumentative, and
the military judge is going to instruct the members as to what the
status of the law is and the members are already going to be
questioned are they able to follow the military judge's instruction in
regards to the instructions that are given to them.
MJ: Lieutenant Commander Messer, Question Number 10?
TC: Well, sir, I believe it's a valid question, that again it's
exploring any bias that someone--that a member may have. These crimes
are, admittedly by the Government, you know, not the most egregious
and that so I think it's important to investigate with the members
that they're not going to nullify here and just say, "Well, you know,
247
technically there was a violation of the JER and they misused their
cell phone, but everyone does that. We're just going to acquit." So
I think it's the responsibility of trial counsel to investigate that
and make sure the people are going to agree from the outset that that
is not a permissible practice.
MJ: Well, that presupposes they understand the JER and they
know its limitations, as well. They won't have the benefit of that
sort of information when they're asked this question.
TC: Sir, again, it's voir dire. We're seeing where their
predispositions lie, what biases they might have.
MJ: Yes. But you're asking them to commit themselves without
the benefit of the evidence in terms of this particular offense. I
don't think that's a proper basis. I'll sustain the Defense objection
to Question Number 10. You may be able to rephrase it in such a way
to determine or to test the members with regard to the permissible
uses of Government property without specifically indicating in terms
of this particular context. I think this is too close to the facts of
the case and you're asking them to make a commitment at this point
without the benefit of the evidence or the law on the issue.
Question 11, Commander Messer?
TC: Well, I'd say that this one does not presuppose anything
other than again investigating any biases that members might have.
MJ: Captain Callahan, your concern with regard to the way the
question is worded?
248
IMC: Again just the concern that it's dealing with the conduct
unbecoming an officer. They are going to be instructed on conduct
unbecoming an officer as part of their instructions from the military
judge.
MJ: Commander Messer?
TC: Sir, I think this is different from 10 in that we're not
presupposing they understand any regulation or instruction. I'm just
inquiring into people's views and biases. Obviously if we have a
member that answers negatively--negatively to this question and says
"No, I don't think that officers should be held to a high moral and
ethical standard," I mean, that's an issue that needs to be
investigated on individual voir dire. That's the root of the
Government's case and of the offenses before the court.
MJ: I'll allow the question, although frankly it may be a bit
confusing since the word "high" is somewhat vague. You might want to
reconsider phrasing that more closely to the definition of Article
133, but I'll allow the question.
Captain Callahan, other concerns with regard to the
Government's questions?
IMC: Yes, sir. In regards to 15 and 16, they're beginning to
argue the facts of the case.
MJ: Lieutenant Commander Messer?
TC: Again, sir, I believe this is a permissible question going
to any bias of the witness.
249
MJ: Well, I agree Question 15 is definitely too close to the
facts and circumstances of this case, and that would not be a
permissible question.
With regard to 16, you may be able to rephrase it such that
it does not go into the facts and circumstances of the case. If you
want to test them with regard to their willingness to consider
circumstantial evidence, you may ask a question along those lines. I
think in 14 you have suggested that, although I'm not sure you've
defined circumstantial evidence for their consideration and they won't
have that instruction when I give them their preliminary instructions.
But with regard to the specific facts and circumstances of
photographs sent over the Internet, again that's awfully close to the
facts of this case; it would not be permissible to commit the members
to one way or the other with regard to those facts.
So if you want to reconfigure Question 16 to reflect my
anticipated instruction concerning circumstantial evidence, you can do
that, but let's steer clear of the unique facts and circumstances of
this case.
Captain Callahan, other concerns with regard to the
remaining questions?
IMC: No, Your Honor.
MJ: Very well. Subject to the Court's limitations, you may ask
those questions on group voir dire as reflected in Appellate Exhibit
XXXII.
250
With regard to individual voir dire, my practice typically
is to permit counsel considerable latitude in individual voir dire.
If there are questions you want me to pose to the member individually
on your behalf, let me know. I'll certainly be receptive to that
request. Some questions might be more embarrassing, that counsel
would prefer the Court ask; if there are those kinds of questions,
I'll be glad to consider such requests.
Any questions concerning the voir dire process we're going
to use Wednesday?
IMC: Not from Defense, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Nothing from the Government, sir.
MJ: Anything else we need to address on the record this
morning?
IMC: No, Your Honor.
TC: Sir, with respect to the issue you had with minor/major
change in the instruction, the preliminary research that we're coming
up with is that the JER instruction is dated August 30th, 1993. So
the JER instruction--the date on the--original date on the charge
sheet was the original date of the Joint Ethics Regulation. The Joint
Ethics Reg--portions of the Joint Ethics Reg were changed on March
25th, 1996 to include the section that we referenced. So----
MJ: So it's the original date, as amended by the next date?
TC: Right. So, I mean, technically I guess the Government's
position now is it may not be proper to change the date to the amended
251
date of that section because the instruction is still dated August
30th, 1993.
MJ: So your amendment may just be "as amended by," inserting
the new language?
TC: That's correct, sir. It would be--we would just be making
the change to the section number and leaving the date the same. But I
put that to the Court as to their discretion as to which would be--
which would be more proper. The Government's not trying to mislead
anyone here. It wants to make sure that it's citing the instruction
properly, but it kind of creates an issue where the--it was amended as
of the later date, but the original date--the instruction is still a
valid instruction on August 30th, 1993. That's when the instruction
was actually promulgated.
MJ: Is the cited section still the correct section, or has that
section been supplemented by the change?
TC: Well, sir, we're----
MJ: Section 2635.704.
TC: Sir, that is not a valid section. That is actually the CFR
section that was erroneously placed on the charge sheet. That's why
we moved to amend with the actual JER instruction. There was
confusion between the CFR which is the overarching statute which with
the JER which created--which was the reason why the JER was created.
So there is no--there is actually no section at all in the JER that
corresponds to that number.
252
MJ: So even if you struck out the section citation, there still
would be a citation to a violation of the Joint Ethics Regulation; it
would just not be a specific citation to a section?
TC: That's correct, sir.
MJ: And so the greater specificity in this instance the
Government wishes to focus on one particular section and that's the
section you wish to amend to?
TC: That's correct, sir.
MJ: And what's that section number?
TC: That section number is 2-301.
MJ: And then after the date of 30 August 1993, it would be "as
amended by"?
TC: "25 March 1996."
MJ: Very well. Captain Callahan?
IMC: Sir, I still have the same objections as written in the
motion, in regards to whether or not that's amended and the change to
promulgation date held off for further research on that myself, sir.
MJ: Very well. Why don't you look into that further. I mean,
if it's a typographical and administrative error, that's certainly a
horse of a different color.
IMC: Yes, sir.
MJ: And if the Government is amending the specification to
provide greater specificity, as it would in perhaps a Bill of
Particulars, then that again might not be a major change.
IMC: Understood, Your Honor.
253
MJ: Very well. If counsel could look into those issues.
Again, we'll resolve them Wednesday morning before we assemble the
members.
Anything further from either side on the record?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. The court stands in recess until 0800 hours
Wednesday morning. Carry on, please.
[The Article 39(a) session recessed at 1151 hours, 19 May 2008.]
[END OF PAGE]
254
[The Article 39(a) session was called to order at 0828 hours, 21 May
2008.]
MJ: Good morning. This 39(a) hearing is called to order in the
case of the United States v. Lieutenant Commander Penland, United
States Navy.
Let the record reflect that all parties present at the last
session of court are again present before the Court this morning.
Let me verify that Lieutenant Commander Penland is present
before the Court, attired in the appropriate uniform with all the
awards and decorations she's entitled to wear.
IMC: She is, Your Honor.
MJ: Very good. A number of matters I'd like to address this
morning before we assemble the members for the selection process.
The first is with regard to the Government's motion to
amend the Specification of Charge I, that motion is granted. The
Court finds that the modification is a minor amendment or a minor
change to the Specification to reflect the correct section of the
Ethics Regulation that was allegedly violated. Specifically, the
Court finds that the change does not alter the substance of the
alleged offense and provides greater specificity for the members and
double jeopardy protection for the accused. Had the Government not
been permitted to make that amendment, the language that was incorrect
could have been stricken and the Specification would still state an
offense under the code. So, therefore, the motion is granted as to
amending the Specification under Charge I.
255
I've also placed in the record Appellate Exhibit XXXIV,
which was an e-mail I sent to counsel, a preliminary ruling on that
matter, but also discussed in that e-mail are some other conclusions
the Court had concerning the charges we addressed at an earlier 39(a)
session.
Specifically, with regard to the third specification under
Charge III, that specification did not contain the operative language
"conduct unbecoming," however, after further research, the Court
discovered that similar operative language was not even provided in
the sample specifications under Article 133 in the Manual for Courts-
Martial. The specification under the charge falls squarely within
Article 133 and, therefore, the Court found that that specification
did state an offense. The Government obviously must prove the conduct
was unbecoming in order to sustain its burden of persuasion under
Article 133 and, therefore, that particular element must be proven
beyond a reasonable doubt, although it need not be pled.
With regard to the first specification of Charge IV, the
concerns the Court raised with regard to whether the alleged act
constitutes an indecent act with another, I have concluded that that
is a factual determination for which the Government bears the burden
of persuasion and, therefore, the specification properly states an
offense. Whether the Government can meet its burden of persuasion is
yet another matter for the members to determine.
So with regard to the charges and specifications, I think
I've addressed the remaining issues.
256
Counsel clear as to the Court's ruling on this matter?
IMC: Yes, Your Honor.
TC: Yes, sir.
MJ: Very well. The next thing I'd like to discuss is the
cleansed charge sheet that will be provided to the members. That has
been pre-marked as Appellate Exhibit XXXV [sic]. Have counsel for
both sides had an opportunity to review the cleansed charge sheet?
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: Any objection to providing it to the members in its present
form, Appellate Exhibit XXXV?
TC: No, sir.
IMC: No, Your Honor.
MJ: I may have misspoke. Let me just double check that
reference to the appellate number. Appellate Exhibit Number--it's
either XXXV or XXXVI. Ah, XXXVI. I misspoke. Okay. We'll provide
Appellate Exhibit XXXVI to the members.
Speaking of members' folders, have counsel had an
opportunity to review the members' folders to ensure that only proper
materials are in the folders?
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: Very well. Have you also had an opportunity to review the
members' spaces and deliberation area to ensure that there are no
improper materials in those areas?
257
TC: I have, sir.
IMC: Yes, sir.
MJ: Very good. I will also note for the record over the
evening recess counsel provided updated witness lists to the Court.
Rather than encumber the appellate record, I'll permit counsel to swap
out the most current version of the witness list for the one that
we've already marked.
I also reviewed the maximum punishment issue we addressed
earlier. I concur that at least at present, given the state of the
charged offenses, the accused faces a maximum authorized punishment of
16 years' confinement and dismissal.
Counsel concur?
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: Obviously that may change based upon findings or if there
are lesser included offenses; but with regard to advising the members
of the punishments, that would be the advice I'd provide them at this
point.
Let me also discuss a Government demonstrative aid. That
was actually marked Appellate Exhibit XXV. It apparently is some sort
of a time line.
Have you had an opportunity to review the demonstrative
aid, Captain Callahan?
IMC: I have, Your Honor.
258
MJ: Any objection to the Government's use of it for opening
statement?
IMC: No, Your Honor.
MJ: Very well. Commander Messer, how do you intend to utilize
your demonstrative aid? Are you going to use the computer screens or
do you have an overhead? What is the approach you're going to use?
TC: Sir, my thought was to put the document on the Elmo and
then publish it via the video monitors to the members.
MJ: Very well. You can do that. Have you had an opportunity
to check and make sure everything is functioning?
TC: Well, sir, no, I haven't and that may be an issue. It
might be easier, you know, if the Court would agree to just make
copies for each member and provide it in their folder or to them as a
demonstrative aid.
MJ: Well, since it's a demonstrative aid, I don't want them to
have that to take back with them. That might give them an undue
emphasis on it. What we can do, though, is after the selection
process of the members, we're going to take a lunch recess. You can
test the equipment at that point.
TC: Yes, sir.
MJ: Very well. I'll also note I did have a question concerning
one of the members. Apparently the names didn't match the convening
order and the questionnaires. There was further inquiry conducted by
the Government. Apparently one of the members has since changed her
name since the original amending order was prepared. Commander
259
Hostetler is now Commander Galvez and that actually has resulted in an
additional amending order 03B-07. So I think that issue has been
resolved.
The court reporter has informed me that the prosecution has
pre-marked a number of its exhibits for the merits.
I will also note that with regard to judicial notice, the
Court received a supplemental request for judicial notice from the
prosecution, and that's been marked Appellate Exhibit XXXVII.
Captain Callahan, have you had an opportunity to review
that request for judicial notice?
IMC: I have, Your Honor.
MJ: Any objection to it?
IMC: No, sir.
MJ: And also with regard to the earlier judicial notice
concerning the Joint Ethics Regulation, any objection to the
Government's request for judicial notice of that regulation?
IMC: No, sir.
MJ: Very well. I will fine tune my findings instructions.
I will note also for the record I did a supplemental draft
of the findings instructions and provided that to counsel. Since it
is obviously in very preliminary form, I'm not going to mark it at
this time as an appellate exhibit, but I will make the necessary
changes to incorporate the judicial notice requests.
Counsel, we also discussed earlier stipulations of fact
concerning jurisdiction. Have the parties reached a stipulation that
260
it would like to discuss or offer at this time?
TC: No, sir.
MJ: Do you anticipate reaching such a stipulation or----
TC: No, sir. The Government is prepared to call a witness on
the merits to lay that foundation.
MJ: Very well. Are there other stipulations of fact or
expected testimony that we need to address at this time?
TC: No, sir, other than one of the Defense's witnesses has
changed from a witness in person to a telephonic witness. The
Government is not objecting to that witness testifying telephonically.
MJ: Very well. Captain Callahan, who is that witness? Was
that the last one you added to your list?
IMC: No, sir. Captain Noel.
MJ: Oh, Captain Noel. Okay. Is that in addition to the other
telephonic witness you may have had?
IMC: Yes, sir.
MJ: Okay. Understood.
Why don't we revisit the issue of Lieutenant JG Wiggan.
Have you had an opportunity to interview him at this point, Captain
Callahan?
IMC: No, sir. I talked to him last night. He still indicated
he would not answer questions or answer questions in court. However,
I was informed by Commander Messer this morning that he has switched
attorneys and is going over to consult an attorney over here. So I
would request rather than the one-hour recess, I would request a
261
two-hour recess over lunch so that I may interview him at that time
and address for trial accordingly, sir, again assuming, after speaking
with his new attorney, he's willing to be interviewed.
MJ: Very well. I'm not sure how much time I'll give you, but
maybe we can get an update from paralegals as to what the status is of
his willingness to interview.
IMC: Yes, sir.
MJ: I don't want to call a two-hour recess if he's not going to
interview with you; then----
IMC: Yes, sir.
MJ: ----we've lost that time. But perhaps we can pinpoint
exactly how much time will be needed and what his cooperation level
will be.
And apparently he's informed of the order to testify and
participate, Commander Messer?
TC: Yes, sir, he has been. He was provided a copy of that
order roughly a week ago, five days or so. There is an issue with
that, though. What I have heard, and this is through defense counsel,
is that his Marine counsel has advised him that the immunity order may
be invalid and that he need not testify. I just raise that issue to
you because I'm not sure how the Court wants to deal with the
situation, if they want to deal with it before we start--the
Government starts its case on the merits or just deal with it when
Lieutenant JG Wiggan is called to the stand.
262
MJ: Well, in either event, it will be at a 39(a) session
outside the members' presence to determine what his stance is
concerning his participation here. I am not going to, at least at
this point, conduct a mini trial to determine the validity of the
order. I mean, if he's aware of the order, then he will obey or
disobey it at his peril. We'll have to see if there's other remedies
or relief the Court can provide to either side if you have such a
request. Be prepared with that obviously at a 39(a) session outside
the members' presence.
Okay. Other matters we need to address on the record this
morning before the members assemble at 0900?
TC: No, sir.
IMC: Not from Defense, Your Honor.
MJ: Very well. Court will stand in recess until 0900. Carry
on, please.
[The session recessed at 0839 hours, 21 May 2008.]
[The session was called to order at 0909 hours, 21 May 2008.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time.
During the recess, it was brought to the Court's attention
that Lieutenant JG Wiggan had consulted with defense counsel and is
apparently willing to submit to pretrial interviews, so the Court will
give counsel additional opportunity to do that during the lunch
recess.
263
Also during the recess, there were some pen-and-ink changes
made to the charge sheet. Lieutenant Commander Messer, if you would,
please, for the record explain what those changes were; and if you
need to approach, I think the original charge sheet is back up here at
the bench.
TC: Thank you, sir.
MJ: Right here.
TC: Yes, sir. The following changes have been made to the
original charge sheet:
On Block 6(a), the Initial Date, was the date 01 August '97
was added;
Block 6(b), the term of indefinite was added or the
abbreviated word "Indef;"
In Block 7(a), the dollar amount of $6,404.00 was added;
Not applicable was added to Block 7(b); and
In Block 7(c), the total $6,404.00;
Charge I, sole Specification, the Section Number 2635.704
was deleted and the Section Number 2-301 was added. The word
"Directive" was deleted and the words "as amended by Change 2 dated 25
March 1996" were added after "30 August 1993."
Charge III, Specification 1, the word "comprised" was
deleted and the word "compromised" was added.
Specification 2 of Charge III, the same change was made,
"comprised" was deleted and the word "compromised" was added.
264
On Block 15, the second page of the charge sheet, that
block was filled in by trial counsel indicating that the charges were
caused to be served on the accused on 7 November 2007, and trial
counsel has signed.
MJ: Captain Callahan, are you aware of these changes?
IMC: I am, Your Honor.
MJ: Any objection to the changes made not already on record?
IMC: No, sir.
MJ: Very well. Counsel, are we ready to invite the members to
join us?
TC: Yes, sir.
IMC: Yes, sir.
MJ: Very well. This 39(a) session is concluded.
Bailiff, if you would please ask the members to join our
court.
BAILIFF: Yes, sir.
[The Article 39(a) session concluded at 0912 hours, 21 May 2008.]
[END OF PAGE]
265
[The court-martial was called to order at 0913 hours, 21 May 2008,
pursuant to the orders previously inserted in the record.]
MJ: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Good morning, members. I believe we have all our captains
in the first row and commanders in the second row. Please take your
seats when you arrive at them.
[The members did as directed.]
BAILIFF: All rise.
MJ: No. Members may be seated. That's okay.
All others, please be seated.
[All persons did as directed.]
MJ: Good morning, members. This general court-martial is
called to order in the case of the United States v. Lieutenant
Commander S. L. Penland, Supply Corps, United States Navy.
Lieutenant Commander Messer, if you would please state the
jurisdictional data for the court-martial.
TC: Yes, sir. This court is convened by Commander, Navy Region
Southwest, by General Court-Martial Convening Order 03-07, dated
6 November 2007, as amended by Special Court--or General Court-Martial
Amending Order 03A-07, dated 14 May 2008, and 03B-07, dated 20 May
2008.
The accused, Lieutenant Commander Syneeda L. Penland,
Supply Corps, United States Navy, Navy Coastal Warfare Group ONE, and
the following persons detailed to this court-martial are present:
266
COMMANDER R. W. REDCLIFF, JAGC, U.S. NAVY, MILITARY JUDGE;
LIEUTENANT COMMANDER K. W. MESSER, JAGC, U.S. NAVY, TRIAL
COUNSEL;
CAPTAIN P. CALLAHAN, U.S. MARINE CORPS, INDIVIDUAL MILITARY
COUNSEL; and
CAPTAIN MICHAEL J. GENTILE, DC, U.S. NAVY,
CAPTAIN MARY B. NEWTON, U.S. NAVY,
CAPTAIN JOSEPH STUYVESANT, U.S. NAVY,
CAPTAIN ALLEN D. BOOKER, SC, U.S. NAVY,
CAPTAIN JODY K. BLONIEN, NC, U.S. NAVY,
COMMANDER ELIZABETH S. GALVEZ, U.S. NAVY,
COMMANDER KEVIN A. GRUNDY, U.S. NAVY,
COMMANDER JOHN R. TUCKER, U.S. NAVY,
COMMANDER TONJA L. KELSCH, NC, U.S. NAVY,
COMMANDER CHARLES P. GOOD, U.S. NAVY.
MJ: Thank you, Lieutenant Commander Messer.
Members, if you would, please, open the folders in front of
you. You should find a number of documents to include a Convening
Order, Amending Order 3A and Amending Order 3B. For most of you 3B
will be the--I'm sorry--3A will be the amending order you want to
focus your attention on, and for one of our members, Commander Galvez,
you are on 3B. If you would take some time now members to ensure that
your name is correctly spelled, as well as the other information
concerning you. I believe we might need to make a change or two
concerning staff corps membership. But if there are any changes that
267
need to be made, please raise your hand and we'll note those for the
record.
[The members did as directed.]
MJ: Affirmative response from Captain Gentile, Captain Booker.
Captain Gentile, what's the change, sir?
MEMBER [CAPT GENTILE]: Dental Corps.
MJ: Dental Corps.
MEMBER [CAPT GENTILE]: Correct.
MJ: Yeah, I thought that.
Captain Booker, sir?
MEMBER [CAPT BOOKER]: Supply Corps.
MJ: Supply Corps. We'll add that. Excellent. Those were the
two changes I thought we needed to make.
Are there any other changes that need to be made, members?
Negative response from all of our panel members.
Very well. The members will now be sworn. Commander
Messer.
TC: Sir, would you like me to make the changes to the convening
order at this time?
MJ: If you'd like to do that now, you may approach.
TC: Thank you, sir. I'm retrieving from the court reporter
which has been marked as----
MJ: They're not marked.
TC: Oh.
MJ: That should be amending order 3A.
268
[Trial counsel made pen-and-ink changes to Amending Order 03A-07.]
MJ: And have the changes been made, Commander?
TC: Sir, I've made the changes to the convening order.
MJ: Very well. If you will please swear the members at this
time.
TC: Members, please rise.
MJ: All rise.
[All persons did as directed, and the members were duly sworn.]
MJ: Thank you. All please be seated.
[All persons did as directed.]
MJ: This general court-martial is now properly assembled.
Lieutenant Commander Messer, is the Government ready to
proceed?
TC: Yes, sir. The prosecution is ready to proceed with trial
in the case of the United States v. Lieutenant Commander Syneeda L.
Penland, Supply Corps, United States Navy.
The general nature of the charges in this case are
violations of Uniform Code of Military Justice, Article 92, 107, 133
and 134. The charges were preferred by LN2 Saniya Solis, United
States Navy, investigated by Lieutenant Commander Ken Ian, Judge
Advocate General Corps, United States Navy, and Lieutenant Commander
Kimberly McCann, Judge Advocate General Corps, United States Navy, and
forwarded with recommendation as to disposition to Commander, Navy
Coastal Warfare Group ONE.
269
The records of this case disclose no grounds for challenge.
If any member is aware of any matter that may be a ground for
challenge by any party, the member should so state.
MJ: Negative response from all panel members.
Members, in your folders you will see a two-page document
that contains the charges in this case. If you would please take a
moment at this time to review the charges and familiarize yourself
with them.
[The members reviewed the charge sheet.]
MJ: Does any member desire additional time to review the
charges? Negative response from all of our panel members.
Members of the court, it's appropriate at this time that I
give you some preliminary instructions.
It is my duty, as military judge, to ensure that this trial
is conducted in a fair and orderly manner. I will rule on any
objections and instruct you on the law that must be applied in this
case. You are required to follow my instructions on the law and you
may not consult any source, written or otherwise, as to the law
pertaining to the case unless it is properly admitted in evidence
before you. This rule applies throughout the trial, to include all
closed session deliberations and any periods of recess or adjournment.
Any questions you have of me should be asked in open court.
At an earlier session, Lieutenant Commander Penland entered
pleas of not guilty to the charges and specifications that are before
you.
270
As court members, it is your duty then to hear the evidence
in the case and determine whether the accused, Lieutenant Commander
Penland, is guilty or not guilty, and should you find her guilty, to
adjudge an appropriate sentence based upon any guilty findings.
Under the law Lieutenant Commander Penland, the accused, is
presumed to be innocent. The Government bears the burden of proving
her innocence beyond a reasonable doubt. The accused, through
counsel, need not present any evidence during this trial and may rely
solely on that presumption of innocence. The fact that charges have
been preferred against this accused and referred to trial to this
court does not permit any inference or support any inference of guilt.
You must make your determination of whether the accused is
guilty or not guilty solely upon the evidence presented here in court
and the instructions on the law that I will give you. Since you
cannot properly make such a determination until you have heard all the
evidence and received my instructions, it is of vital importance that
you retain an open mind until all the evidence has been presented and
until you have been instructed on the law. You must impartially hear
the evidence, the instructions on the law, and only when you are in
your closed session deliberations may you properly make a
determination of whether the accused is guilty or not guilty and, if
necessary, should you find her guilty, adjudge an appropriate
sentence.
With regard to sentencing matters, should that become
necessary, you may not have any preconceived ideas or formula as to
271
either the type or amount of punishment that should be adjudged if the
accused is convicted of any of these offenses. You must first hear
the evidence in extenuation and mitigation, as well as that in
aggravation, if any, the law with regard to sentencing, and again only
when you are again in your closed session deliberations may you
properly make a determination as to an appropriate sentence after
considering all of the alternative punishments that I would explain to
you.
While you are in your closed session deliberations, only
the members will be present. You must remain together and you may not
allow any unauthorized intrusion into those deliberations. Each of
you has an equal voice and vote with the other members in deciding and
discussing all the issues submitted to you. The senior member's vote
counts as one, the same as the junior member's. In addition to the
duties of the other members, the senior member will act as your
presiding officer during the closed session deliberations and will
speak for the panel in announcing the verdict.
It is the duty of the trial counsel, Lieutenant Commander
Messer, to represent the Government in the prosecution of this case.
It is the duty of the defense counsel in this case, Captain Callahan,
to represent the accused.
In a few minutes I'm going to ask you a series of questions
and then counsel will also be permitted an opportunity to question
you, as well, as a panel. If you know of any matter that you believe
might reasonably affect your impartiality to sit as a member in this
272
case, you must disclose that matter when asked to do so.
Bear in mind that any statement you make should be made in
general terms so as to not to disqualify any other member who would
hear your response. For example, if you had read a report of the
investigation or heard anything about the incidents alleged in the
charges, you should so state. Do not state, however, in front of the
other members what that report said or any opinion or conclusion you
drew from reading it. If you believe that what you might say could
disqualify another member who would hear it, you should request to
make your statement outside of their presence.
Some of the grounds for challenge would be if you were the
accuser in this case, if you had investigated any of the offenses
alleged, if you had formed or expressed an opinion as to the guilt or
innocence of the accused, or any other matter that might reasonably
affect your impartiality.
Questions by counsel and me are not intended to embarrass
you. They are not designed to attack your integrity. They are asked
merely in order to determine whether a proper basis for challenge
exists.
In this respect, there are two types of challenges. The
first is known as a challenge for cause, and that's fairly self-
explanatory. The other type of challenge is known as a peremptory
challenge, which gives counsel for both sides the opportunity to
excuse one panel member for no reason at all. It is no adverse
reflection, therefore, upon a panel member to be excused from any
273
particular case.
You may be questioned either individually or collectively,
but, in either event, you should indicate your own personal response
to the questions asked. Unless I indicate otherwise, you are required
to answer all questions put to you.
I anticipate the general order of events in this case: The
voir dire or the questioning of the members; any challenges and
excusals of members who have been challenged; the opening statements
of counsel; presentation of evidence in the case; closing argument of
counsel; instructions on the law you must follow; your deliberations;
and the announcement of the verdict. If the accused should be
convicted of any offense, then there would also be sentencing
proceedings. I anticipate that this case will last through the
balance of this week, with perhaps a Saturday session, and we'll
discuss that momentarily.
The appearance and demeanor of all the parties to this
trial should reflect the seriousness with which it is viewed. Careful
attention to all that occurs here in court should--is required of all
members.
If there are any questions over these preliminary
instructions, please raise your hand. Negative response from all
panel members.
Members of the court, in a moment I'm going to ask you a
series of questions and then allow counsel to ask you questions, as
well, as a panel. If your individual response to a question is yes or
274
affirmative, please raise your hand and hold it until I recognize that
on the record. If you do not raise your hand--or actually if you do
not raise your hand, I will assume that is a negative response. But
also, to help me in that, if you would shake your head in the negative
so I know that you heard a question and you have a negative response
to it; that would also speed up this process somewhat. If you're
asked a question individually, then you may respond verbally.
If there are any questions about this procedure, please
raise your hand. Okay. The first test of the negative, shaking of
the heads. Okay. All members pass. Negative response from all panel
members.
Members, I do apologize in advance. This is a somewhat
cumbersome process. Not only do I have to ask the question, I have to
note your response on the record, I have to write it down in my notes
and then hopefully ask the next question.
Also, some of the questions I put to you are fairly complex
or compound. I'll try and separate the statement part of the question
before the question actually is asked to try and maintain that
clarity.
Statement: Each of you completed a court-martial member
questionnaire prior to this session of court.
Question: Do any of you need to correct any of the
information that's set forth in your court-martial questionnaire?
Okay. Negative response from all panel members.
275
MJ: Do any of you know the counsel assigned to this case?
Negative response from all panel members.
Do any of you know the accused in this case, Lieutenant
Commander Penland? Negative response from all panel members.
The following individuals may be called as potential
witnesses in the case. If you are familiar with them, please raise
your hand and I'll note that for the record.
NCC Kimberly Lewis-Wiggan, United States Navy. Negative
response from all panel members.
Lieutenant JG Mark Wiggan, United States Navy. Negative
response from all panel members.
Commander Brendon Doud, United States Navy. Negative
response from all panel members.
Lieutenant Commander Thomas Moninger, M-O-N-I-N-G-E-R,
United States Navy. Negative response from all panel members.
Captain John B. Sturges, United States Navy (Retired).
Negative response from all panel members.
PS1 Cheston A. Lee, United States Navy. Negative response
from all panel members.
SKC Stacy Zogaib, Z-O-G-A-I-B, United States Navy.
Negative response from all panel members.
Lieutenant Commander Kristen McCarthy, JAG Corps, United
States Navy Reserve. Negative response from all panel members.
Commander Matthew Masi, United States Navy. Negative
response from all panel members.
276
Mr. Brian Duffy, civilian employee. Negative response from
all panel members.
PS1 Crawford, United States Navy. Negative response from
all panel members.
Captain Mike Johnson, United States Navy. Negative
response from all panel members.
Commander Larry Milner, United States Navy. Negative
response from all panel members.
Captain Jack Noel, United States Navy.
TC: Sir, I believe Commander Grundy had a----
MJ: Oh, Commander Grundy?
MEMBER [CDR GRUNDY]: Could you repeat that previous one.
MJ: Commander Larry Milner, United States Navy. Affirmative
response from Commander Grundy. Negative response from the other
panel members.
Captain Good?
MEMBER [CDR GOOD]: For Captain Noel, sir.
MJ: Very well. Thank you. Okay. And that was Commander Good.
Molisa Cooper, San Marcos, California. Negative response
from all panel members.
William Blair, San Diego, California.
[Negative response from all panel members.]
MJ: Chief Warrant Officer Stephen Gevias, G-E-V-I-A-S, H and S
Battalion, MCRD. Negative response from all panel members.
277
And YN1 Christina Cunningham, USS MOBILE BAY. Negative
response from all panel members.
Statement: Members, when you decide whether to believe or
disbelieve a witness, you should consider the witness' intelligence,
candor and manner of testifying, relationship to either side of the
case, whether that testimony is corroborated by the other evidence,
and any other factors from your own experience that would indicate to
you whether or not the person is telling the truth.
Question: Do any of you have any personal prejudices or
feelings which would influence your deliberations in any way or
prevent you from weighing the testimony of each witness in this case
by the same standards you would the testimony of all witnesses?
Negative response from all panel members.
Statement: A person's status, such as an officer or a
policeman, cannot be used as the sole basis to consider that person's
testimony more believable than the testimony of any other witness.
However, you may consider that status along with all other factors
when weighing the credibility of that person.
Question: Would any of you give the testimony of an
officer witness any higher credibility than the testimony of an
enlisted person solely because of the individual's status as an
officer? Negative response from all panel members.
Do any of you know anything at all about the facts or
issues in this case? Negative response from all panel members.
278
Has anyone mentioned anything to you or have you read
anything about the incidents alleged in the charges you've just read?
Negative response from all panel members.
Statement: During the court-martial, it may occur to you
that the testimony of a witness or some other evidence submitted
causes you to recall something that you do not now recall about this
case. If any of you have such a recollection, you must totally
disregard that recollections as if you had never heard of it, and this
applies throughout the court-martial.
Question: Is there any member who cannot follow this
instruction? Negative response from all panel members.
Statement: You also must be able to do this even if what
you previously heard or read or what you now recall conflicts with or
is different from what you hear in the courtroom.
Question: Is there any member who cannot follow that
instruction? Negative response from all panel members.
Do any of you sign, prepare or provide information for the
evaluation or fitness report of any other court-martial member?
Negative response from all panel members.
Do any members know the other panel members? Affirmative
response from Commander Grundy and from Commander Kelsch and Commander
Galvez and Captain Newton.
Okay. Captain Newton, who do you know?
MEMBER [CAPT NEWTON]: I know Commander Grundy.
MJ: Okay. Anyone else from the panel?
279
MEMBER [CAPT NEWTON]: And Commander Galvez.
MJ: Okay. Commander Galvez, Captain Newton?
MEMBER [CDR GALVEZ]: Yes.
MJ: Anyone else?
MEMBER [CDR GALVEZ]: No, sir.
MJ: Commander Grundy, Captain Newton?
MEMBER [CDR GRUNDY]: Captain Newton and, I'm sorry, Captain----
MJ: Captain Blonien?
MEMBER [CDR GRUNDY]: Yes.
MJ: Okay. And Captain Blonien?
MEMBER [CAPT BLONIEN]: Commander Kelsch, sir, and work together,
but I was thinking she was coming to a command.
MJ: Okay.
MEMBER [CAPT BLONIEN]: So I just kind of know her.
MJ: And Commander Grundy, as well?
MEMBER [CAPY BLONIEN]: Commander Grundy, as well.
MJ: Thank you, ma'am.
Okay. And Commander Kelsch?
MEMBER [CDR KELSCH]: Captain Blonien.
MJ: Thank you.
Okay. Did I miss anyone?
[Negative response from all panel members.]
MJ: And we'll ask you individually about those associations
when we have you for individual follow up.
280
Do any of you have immediate family members who are law
enforcement officers, prosecuting or defense attorneys, or otherwise
employed in law enforcement activities? Affirmative response from
Captain Blonien, Commander Good, Commander Grundy and Captain Gentile
and Commander Good.
Statement: Each court member is entitled to an equal voice
and vote with all the other members, regardless of rate, grade or
rank. Influence through the use of pay grade, position or command is
strictly prohibited.
Question: Is there any member who cannot follow this
instruction? Negative response from all panel members.
Statement: It appears that this case may have extended
sessions during the day. I anticipate probably 1830 for the balance
of this week or perhaps a little bit later depending on where we are
in the flow of testimony, additionally with a Saturday session, if
necessary. When you are assigned as a member of this court-martial,
this assignment becomes your primary duty and takes precedence over
all the other duties you may have. Nonetheless, we're all individuals
with other obligations and commitments.
So I ask, do any of you have any official duties or
personal matters that you must attend to that might affect your
ability to properly discharge your duties as a court-martial member
due to the expected sessions of this court? Affirmative response from
Commander Grundy and Commander Good. Commander Galvez, no?
MEMBER [CDR GALVEZ]: Well----
281
MJ: Kind of, sort of?
MEMBER [CDR GALVEZ]: Need time to make some arrangements.
MJ: Very well. We can talk about that.
And just for planning purposes, after we're done with the
members' selection process, I'll anticipate taking a fairly lengthy
lunch hour, so if you need to make any adjustments, there will be
adequate time to do so, at least for this evening.
Negative response from the other panel members.
Statement: As court members, you must keep an open mind
regarding the verdict until all the evidence is in and you have been
instructed on the law of this case.
Question: Is there any member who cannot follow this
instruction? Negative response from all panel members.
Statement: I will instruct you prior to your deliberations
on the guilt or innocence of this accused. I will advise you that she
must be presumed to be innocent unless and until her guilt is
established by legal and competent evidence beyond a reasonable doubt;
that in this case, if there is a reasonable doubt as to the guilt of
the accused, that doubt shall be resolved in her favor and she shall
be acquitted. I will also instruct you that the burden of proof to
establish the guilt of the accused beyond a reasonable doubt rests
upon the Government. I will give you other instructions concerning
the law, as well, that you must follow.
Question: Have any of you formed or expressed an opinion
concerning the guilt or innocence of this accused? Negative response
282
from all panel members.
Statement: You may expect or desire the accused to
testify. You are advised that the accused has an absolute right not
to testify in this case. The fact that an accused may elect not to
testify in her own behalf may not be considered adverse to the accused
in any manner. The burden of proof to establish the guilt of the
accused beyond a reasonable doubt rests upon the Government. This
burden never shifts to the accused to establish her innocence or to
disprove any fact necessary to establish each element of the offenses
alleged.
Question: Is there any member who cannot follow this
instruction? Negative response from all panel members.
Question: Is there any member who will be unable to follow
my instructions on the law that must be applied to this case?
Negative response from all panel members.
If sentencing becomes necessary, members, based upon any
findings of guilty, you must keep open minds regarding that sentence
until all the evidence is in and you have been instructed as to the
law. Your decision as to an appropriate sentence must be based solely
on the matters that are properly presented to you during this trial.
Therefore, as members, you cannot have in your own minds a set
sentence until the case is over.
Question: Is there any member who cannot follow this
instruction? Negative response from all panel members.
283
In the event the accused is found guilty of any offense,
then it becomes your duty to adjudge an appropriate punishment.
Again, I will instruct you on the law you must follow in arriving at
an appropriate sentence in this case based upon any guilty findings.
Included will be my instruction to the effect that you should consider
all matters presented in extenuation and mitigation of the offenses by
the accused, as well as any matters presented in aggravation of the
offenses by the trial counsel.
Question: Is there any member who cannot follow this
instruction? Negative response from all panel members.
Statement: Again, if sentencing becomes necessary based on
any guilty findings, you must arrive at an appropriate punishment and
each of you must be able to give fair consideration to the entire
range of permissible punishments in this case from the least severe
which would be no punishment at all, the conviction itself serving as
a punishment, to the most severe which could include a dismissal and
confinement for up to 16 years.
Question: Will each of you be able to give such
consideration to the full range of punishments if sentencing becomes
necessary? Okay. Affirmative response from all panel members.
Statement: I will instruct you once again, if sentencing
should become necessary, that you may not have any preconceived
formula or any fixed, inelastic or inflexible attitudes concerning a
particular type of punishment that you feel must or should be imposed,
including any opinion as to whether a dismissal or confinement must be
284
adjudged simply because of the nature or number of these offenses or
because the accused has been found guilty.
Question: Is there any member who cannot follow this
instruction? Negative response from all panel members.
Question: Have any of you formed or expressed an opinion
at this time as to the sentence that should be adjudged in this case,
if sentencing becomes necessary? Negative response from all panel
members.
Question: Having reviewed the charges and specifications
before you, do any of you at this time harbor any thoughts or feelings
regarding punishments that might reasonably affect your ability to
adjudge a completely fair, impartial and appropriate sentence in this
case if the accused is convicted of any of the charged offenses,
anything at all? Negative response from all panel members.
Question: Is there anything at all in your past education,
training or experience or any other matter that you feel that you
would not be able to set aside and that would make it difficult or
impossible for you to conduct your deliberations in a completely fair,
impartial or unbiased manner, anything at all? Negative response from
all panel members.
Question: Are any of you aware of anything whatsoever,
whether I have touched on it or not, that you feel should be disclosed
or that you would feel would have an affect on your ability to sit as
a fair and impartial member in this case or that might in any way
improperly influence your deliberations in this case? Negative
285
response from all panel members.
Do any of you know Rear Admiral Hering, the Convening
Authority of this case? Affirmative response from Captain Stuyvesant.
MEMBER [CAPT STUYVESANT]: Stuyvesant.
MJ: Stuyvesant. Thank you, Captain. And Commander Galvez.
Negative response from all other panel members.
Does any member know Captain Sturges? Negative response
from all panel members.
MEMBER [CAPT STUYVESANT]: Excuse me. I may know of him. I'd
have to see him. The name sounds somewhat familiar, but I'm not sure.
MJ: Aye, sir.
MEMBER [CDR GOOD]: I would have the same response.
MJ: Very well.
MEMBER [CDR GOOD]: His name is familiar to me.
MJ: He was, I believe, a commanding officer of Naval Coastal
Warfare Group.
IMC: Naval Coastal Warfare Group ONE, sir.
MJ: Does that help, members? Still need the face? Very well.
And a negative response from other panel members.
Question: Do any of you have any racial, ethnic, religious
or other prejudices that would prevent you from serving as a fair and
impartial member of this court-martial? Negative response from all
panel members.
Question: Does the fact that the accused is African-
American cause you to have any feelings toward her that would prevent
286
you from making a fair and impartial determination of this case based
solely according to the evidence presented and the instructions that I
will give you? Negative response from all panel members.
Members, at this time I will invite counsel to question you
as a group.
Lieutenant Commander Messer.
TC: Good morning, members. Lieutenant Commander Messer for the
Government. Just a few follow-up questions.
Has any member ever discussed this case with Rear Admiral
Hering? I know only two of you said you know him. But has anyone
discussed the case with the admiral? Negative response all members.
Do any of you feel that Rear Admiral Hering expects or
anticipates a finding of guilty in this case? Negative response all
members.
Has anyone else ever discussed this case with you prior to
this morning's session? Negative response all members.
Is any member in the chain of command of another member
here this morning? Negative response all members.
Does any member provide input or write a FITREP of another
member? Negative response all members.
Would any member, if selected for this panel, not convict
the accused simply because another member does not want to see her be
punished? Negative response all members.
Now, will any member have difficulty viewing photographs of
a graphic sexual nature and then discussing it with other members of
287
the jury during deliberations? Negative response all members.
Now, the judge will define the terms intent to deceive,
conduct unbecoming an officer and a gentlewoman, indecent act, sexual
intercourse, and conduct prejudicial to good order and discipline for
you. If the judge gives you a definition that is different than your
definition for any of these terms, will any member have a problem
accepting that? Negative response all members.
Several offenses charged in this case involve allegations
of conduct unbecoming an officer. Do all members agree that it is
appropriate to hold military officers to moral and ethical standards?
Affirmative response all members.
Another offense charged in this case is adultery. Does any
member believe that adultery should not be an offense under the
Uniform Code of Military Justice? Negative response all members.
Do all members agree that the offense of adultery can be
prejudicial to good order and discipline and/or service discrediting?
Affirmative answer all members.
Do the members understand that a case may be proven without
eyewitness or first person testimony and may instead be proven beyond
a reasonable doubt through circumstantial evidence alone? Affirmative
response all members.
Do the members understand that beyond a reasonable doubt
does not mean beyond all doubt? Affirmative answer all members.
Do the members understand that the Government may prove its
case beyond a reasonable doubt even though minor inconsistencies may
288
exist in the evidence? Affirmative answer all members.
Do the members understand that two people may remember the
same event a slightly different way? Affirmative answer all members.
Do the members understand that although two witnesses may
remember the same event slightly differently, this does not mean that
both witnesses did not witness the same event? That's affirmative
answer all members.
Is there any member who feels inclined to vote against the
Defense or against the Government at this point in time? Negative
response all members.
And, lastly, is there anything about this case that makes
you hesitate to sit as a member? Negative response all members.
Thank you, sir.
MJ: Captain Callahan, questions for the panel?
IMC: Thank you, Your Honor.
Good morning, ladies and gentlemen.
Ladies and gentlemen, has any member heard Admiral Hering,
Captain Sturges or Captain Harr discuss military justice issues?
Negative response from all members.
Will the fact that Admiral Hering convened this court-
martial affect your evaluation of this case? Negative response from
all members.
Has any member received any legal advice or counsel,
whether professional or personal, from Lieutenant Commander Messer,
Lieutenant Commander Marshall or any judge advocate serving as the SJA
289
or deputy SJA to Admiral Hering? I have an affirmative response from
Captain Good.
MJ: Commander Good.
IMC: Commander Good. My apologies.
TC: Sir, just to be specific, could the member please explain
who he received the advice from.
MJ: We can follow up individually.
TC: Aye, sir.
IMC: Do any members feel pressured to arrive at a certain result
in this case? Negative response from the members.
Does any member have a problem with the concept that an
accused is presumed to be innocent and not guilty? Negative response
from the members.
Will each member agree to hold the Government to its burden
of proof? That's affirmative response from all members.
Do all members agree and understand that Lieutenant
Commander Penland is not required to prove her innocence to you?
That's affirmative response from all members.
Would any member require Lieutenant Commander Penland to
produce any evidence in order to find her not guilty? That's negative
response from all members.
A person accused of a crime does not have to present
evidence at all and does not have to testify at trial as part of the
rights that's afforded by the United States Constitution. The accused
can present evidence and can testify, is she chooses to do so, but
290
she's not required to.
Will any member hold it against Lieutenant Commander
Penland if she chooses not to present evidence or not to testify at
all in this case? Negative response from all members.
Would any member wish to hear Lieutenant Commander Penland
testify for any reason? Negative response from all members.
Does each member understand that the legal determination of
Lieutenant Commander Penland's guilt or innocence is solely in your
hands, not in the handS of any commander? Affirmative response from
all members.
Does every member agree that it's possible to have
individuals make false allegations? Affirmative response from all
members.
If any member were in a similar situation that Lieutenant
Commander Penland is in, is there any reason why you would not want
someone such as yourself to sit as a member and judge you? Negative
response from all members.
Does any member know any other service member that has ever
been accused of adultery? Negative response from all members--
affirmative response from Captain Booker, affirmative response from
Captain Stuyvesant, affirmative response from Commander Good,
affirmative response from Captain Blonien, affirmative response from
Captain Kelsch.
Does any member know any individual, whether in the
military or a civilian, who has had their spouse commit adultery on
291
them? That's affirmative response from Captain Booker, affirmative
response from Captain Gentile, affirmative response from Captain
Stuyvesant, affirmative response from Captain Blonien, affirmative
response from Commander Good, affirmative response from Commander
Galvez and affirmative response from Commander Kelsch.
Has any member seen military adultery cases in the news
recently? That's a negative--affirmative response from Captain
Stuyvesant. Affirmative response from Commander Good, as well.
Negative response from all other members.
Does any member's religion take a strong stance on
adultery? That's an affirmative response from Captain Booker,
affirmative response from Captain Gentile, affirmative response from
Captain [sic] Good, affirmative response from Captain Tucker.
Negative response--I'm sorry--Commander Tucker. Negative response
from all other members.
Has any member ever faced an allegation of violating the
law? Negative response from all members.
Has any member had a family member or a close friend face
an allegation of violating the law? Negative response from all
members.
Has any member ever served as an investigating officer
before? Affirmative response from Captain Booker, an affirmative
response from Captain Gentile, an affirmative response from Captain
Stuyvesant, an affirmative response from Commander Good, affirmative
response from Commander Galvez, affirmative response from Captain
292
Grundy--affirmative response from Commander Grundy, affirmative
response from Commander Tucker and affirmative response from Captain
Kelsch--Commander Kelsch.
Does every member agree that if I do anything that you
dislike in any way, that you will not hold it against Lieutenant
Commander Penland? That's affirmative response from the members.
Will any member hold it against Lieutenant Commander
Penland if she's being represented by a Marine Judge Advocate instead
of by a Navy JAG officer? Negative response from the members.
Will any member give more credence to Lieutenant Commander
Messer's arguments either because he's senior to myself or because he
is in the Navy? Negative response from all members.
Does any member view themselves as generally oriented as
more favorable towards the Government than towards the Defense?
Negative response from all members.
Thank you, ladies and gentlemen.
Thank you, sir.
MJ: Members, one last question for you as a panel. Then we'll
invite you to come back individually for questions.
After taking into consideration all the questions that have
been asked of you, your responses and the responses of the other
members and everything else that's been brought out to this point, do
any of you now feel that for any reason you would be unable to fairly
and impartially determine all the issues in this case in accordance
with the evidence, my instructions and the applicable law? Negative
293
response from all panel members.
Members, I'll give you my first, what I call my standard
instructions. Any time you're outside this courtroom, you may not
discuss the facts of this case with anyone until you're in your closed
session deliberations for the many reasons I discussed earlier. If
anyone should attempt to discuss the case with you, stop that person
immediately and advise me at the next session of court. Please do not
refer to any sources related to this case or the law related to this
case when you're outside the presence of the courtroom, unless it's
been properly admitted to you.
Members, what I anticipate is that we will probably invite
you all to return individually to ask you several questions. I cannot
fix exactly how long that process is going to take. I can tell you
we'll start with our senior member, Captain Gentile, and we'll work
our way down through the panel based on your seniority and as
reflected in the convening and amending orders. Typically it's 10 to
15 minutes of questions per member, maybe more, maybe less. So if
you're near the top on the list, then please stand by in the
deliberations room. If you're near the bottom, you can go stretch
your legs, grab a snack, make a call, do whatever you like, but please
don't stray too far from the deliberations area.
Again, if you have any questions at this time, please raise
your hand and I'll be glad to address them with you.
[Negative response from all panel members.]
294
MJ: Very well. Members, if you would, please, close your
folders.
Captain Gentile, unless you need a break, sir, we'll ask
you to remain with us.
And I will at this time excuse the other members. Please
remain in the deliberations room----
BAILIFF: All rise.
MJ: ----unless you're near the bottom.
[All persons did as directed.]
MJ: The members may depart except for Captain Gentile.
[Except for CAPT Gentile, all other members withdrew from the
courtroom.]
[The court-martial recessed at 0959 hours, 21 May 2008.]
[END OF PAGE]
295
[The Article 39(a) session was called to order at 1000 hours, 21 May
2008.]
MJ: Please be seated, Captain.
MEMBER [CAPT GENTILE]: Thanks. [Being seated.]
MJ: And let the record reflect that all the members have
departed except for Captain Gentile.
INDIVIDUAL VOIR DIRE OF CAPTAIN MICHAEL J. GENTILE
Questions by the military judge:
Q. Captain, I believe you indicated that you have close family
members or friends who are involved with either the law, in terms of
prosecution of defense or--and medicine, I gather, as well?
A. Correct. Well, medicine, yeah, that's----
Q. Obviously.
A. That's okay. My brother-in-law is a defense attorney in
Colorado Springs. My nephews on my wife's side are both law
enforcement officers down in Florida.
Q. With regard to your brother-in-law, what kind of law does
he practice, sir?
A. Gosh.
Q. Does he practice criminal law, do you know?
A. I think so, yeah. I mean--yeah, I wouldn't be able to tell
you----
Q. Okay.
A. ----to be honest.
296
Q. With regard to this case, will you be able to refrain from
discussing it with him during the case's pendency?
A. Most definitely.
Q. Very well. And with regard to the law enforcement
individuals, the same thing; will you be able to refrain from any
discussions with them?
A. Yes.
Q. Based on those associations, are you more inclined to
support the prosecution over the defense?
A. No.
Q. I believe you also indicated with regard to one of the
questions asked, you knew someone who had been either accused or the
victim of adultery. Did I get that one wrong?
A. No. I think the only other one I answered was a
religious----
Q. Okay. That was one I had.
A. Okay. So if I raised my hand on that one, it----
Q. Okay. Again, I don't want to pry unnecessarily into----
A. No. Please.
Q. ----your personal beliefs, but is there--can you state in
general terms what it is that you believe concerning adultery or----
A. Sure.
Q. ----what your faith teaches.
A. I grew up--I've grown up and I'm a practicing Roman
Catholic and it's against the church.
297
Q. Are you still a practicing member of the church?
A. Yes, I am.
Q. Obviously the church has some fairly specific views
concerning adultery. Will you be able to at least set those aside for
the purposes of this trial and base your determinations as to what the
law is as I instruct you on the law?
A. Yes.
Q. And, sir, you're a dentist, is that correct?
A. Correct.
Q. You have a specialty I think, as well?
A. I'm a prosthodontist.
Q. What exactly is that, sir?
A. Oh, prosthodontist is dental implants, crown and bridges,
dentures, partials.
MJ: Thank you, sir.
MEMBER [CAPT GENTILE]: Sure.
MJ: Follow-on questions for Captain Gentile, Lieutenant
Commander Messer?
TC: None from the Government, sir.
MJ: Captain Callahan?
IMC: Thank you, sir.
Questions by the individual military counsel:
Q. Sir, just to be clear, you do not know anybody that's
either committed adultery or anybody--any spouse that's--anybody
that's had their spouse commit adultery?
298
A. I'm going to have to say no.
Q. Yes, sir. I believe you indicated you served as an
investigating officer before, sir?
A. It was quite a while ago, probably as a lieutenant
commander. It had to do with someone breaking the chain of
urinalysis, sir.
Q. Yes, sir. And then, lastly, sir, is there anything about
the Catholic Church's teachings on adultery that would affect the
sentence you would give in this case if Lieutenant Commander Penland
was found guilty?
A. No.
IMC: Thank you, sir.
Thank you, Your Honor.
MJ: Lieutenant Commander Messer, follow-on questions?
TC: Sir, just briefly.
Questions by the trial counsel:
Q. Sir, based on your involvement as an investigating officer
back when you were an O-4, would that in any way cloud your judgment
or change your opinion in this case on how you go about evaluating the
evidence in this case?
A. It was so long ago, I'm going to have to say no.
TC: Thank you, sir.
MJ: Captain Callahan?
IMC: Nothing further, Your Honor. Thank you.
299
MJ: Captain, thank you for your responses. You may join the
other members at this time.
And if we could have Captain Newton, please, Bailiff.
All rise.
[All persons did as directed, and CAPT Gentile withdrew from the
courtroom.]
MJ: And let the record reflect that Captain Gentile has
rejoined the other members.
[CAPT Newton entered the courtroom and was seated.]
MJ: Let the record reflect that Captain Newton has rejoined the
court. All others please be seated.
[All persons did as directed.]
INDIVIDUAL VOIR DIRE OF CAPTAIN MARY B. NEWTON
Questions by the military judge:
Q. Captain, could you just briefly explain what your present
duty assignment involves.
A. Yes. I'm currently the N1, director of manpower personnel
administration for Commander, Naval Special Warfare Command.
Q. Would you have any involvement with the Naval Coastal
Warfare Group at all here in San Diego?
A. I don't.
Q. And you were not familiar with the name Captain Sturges?
A. I am not.
MJ: Okay. Thank you, ma'am.
Follow-on questions for Captain Newton? Actually, I think
300
I have a couple more.
Q. I believe in your questionnaire, ma'am, you indicated that
quite a long time ago, more years than I would admit either, but I was
still around then, you were a special court-martial member?
A. Yes, sir.
Q. Do you recall the kind of case you were involved with?
A. Yes. It was a travel fraud case [inaudible].
Q. Do you recall the outcome of the case?
A. I believe he was found guilty.
Q. Is there anything about your service on that case which
would impact you here in terms of your ability to sit as a fair and
impartial member?
A. No, sir.
Q. I believe you also indicated you have a friend who's a JAG,
a retired JAG?
A. Yes, I do.
Q. Who is that?
A. Lynn Gates.
Q. Oh, yeah, uh-huh. Do you still have contact with her?
A. Occasionally.
Q. Will you be able to refrain from contacting her during the
trial?
A. Oh, absolutely, sir.
301
Q. Is there anything about your association with Lynn that
would cause you to favor the prosecution or the defense in this case?
A. No, sir.
Q. I believe you also indicated that you had--is it a cousin
who's a New York City detective?
A. Yes, I do.
Q. How close are you to that cousin?
A. Not very close. We see each other maybe once a year,
possibly even less than that.
Q. A similar question about contact; will you be able to
refrain from contacting that cousin?
A. Yes, sir.
Q. And I also believe you indicated you had a cousin who's a
lawyer?
A. Yes, I do.
Q. Do you know what kind of law that----
A. She's actually a lawyer for an insurance company in
New York, as well.
Q. I see. Okay. So she doesn't work for the prosecution or
the defense typically?
A. She works for the insurance company, so----
Q. I see. Thank you.
And also unfortunately I think you indicated that you were
victimized with regard to a burglary?
A. Yes.
302
Q. How long ago was that, ma'am?
A. That was--I believe that was 1992 and our home--I was up at
the Naval Postgraduate School and my husband's in--living in our house
in San Diego. He was up visiting me----
Q. Oh.
A. ----in Monterey----
Q. I see.
A. ----and while we were gone, our home was burglarized and we
reported it, but they never caught [inaudible].
Q. Anything about that experience which would cause you to
favor or dislike the prosecution or defense?
A. No, sir.
Q. And I believe you also knew several of the other members.
Was it Commander Grundy and Commander Galvez?
A. Aye, sir.
Q. How do you know those officers?
A. Well, Commander Grundy actually recognized me when we met
here. He recalled that I was, in 1986, his company officer at Officer
Candidate School when he was an officer candidate----
Q. Wow.
A. ----and I must say I didn't initially recognize him, but
remembered Officer Candidate Grundy when he refreshed my memory. But
I've had no contact with him since 1986.
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Q. Any recall of how well he did there? He obviously got
through it.
A. I don't recall that, no, sir.
Q. Okay. How about Commander Galvez?
A. We have only recently had maybe two or three phone calls of
a professional nature. She works at Surface Forces in the N1 shop and
I'm in the N1 at Naval Special Warfare Command, so we've had occasion
only over the last couple of weeks. She was actually inquiring about
being the relief in my job.
Q. Oh, okay.
A. Then I called her just yesterday asking if she knew of a
situation where I could help one of the Sailors who was negotiating
orders and so recent and purely professional help.
Q. Anything about your association with either of the officers
which would cause you to hesitate to serve with them as a member of
this panel?
A. No, sir.
Q. Based on those associations, do you believe that the
individual officers will, in fact, be able to exercise their equal
voice and vote?
A. I do, sir.
MJ: Follow-on questions for Captain Newton, Lieutenant
Commander Messer?
TC: Not from the Government, sir.
MJ: Captain Callahan?
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IMC: Please, sir.
MJ: Very well.
Questions by the individual military counsel:
Q. Good morning, ma'am.
A. Good morning.
Q. Ma'am, I noted from your court-martial questionnaire that
you've given nonjudicial punishment before.
A. Yes.
Q. Approximately how many times have you given nonjudicial
punishment?
A. I would say approximately four or five times.
Q. Did any of those cases of NJP involve either adultery,
orders violations or false official statements?
A. No.
IMC: Thank you, ma'am.
Thank you, Your Honor.
MJ: Lieutenant Commander Messer, anything, follow up?
TC: No, sir.
MJ: Thank you, Captain. You may rejoin the other members.
Please do not discuss the questions or your answers with them at this
time. You may rejoin them.
BAILIFF: All rise.
[All persons did as directed, and CAPT Newton withdrew from the
courtroom.]
MJ: And if we could have Captain Stuyvesant.
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BAILIFF: Stuyvesant, sir?
MJ: Stuyvesant. Thank you.
And let the record reflect that Captain Newton has departed
the courtroom.
[CAPT Stuyvesant entered the courtroom and was seated.]
MJ: And let the record reflect that Captain Stuyvesant has
rejoined the court. All others, please be seated.
[All persons did as directed.]
INDIVIDUAL VOIR DIRE OF CAPTAIN JOSEPH STUYVESANT
Questions by the military judge:
Q. Captain, if we could begin with what are your present
duties at the Commander, Naval Air Forces?
A. I'm stashed over there. I just returned from IA and I'm----
Q. And welcome back, sir.
A. Thank you. And I'll be PCS'ing to the Navy Region in
August.
Q. What will be your duties at the Navy Region, sir?
A. I'll be the chief of staff.
Q. Congratulations.
A. Thank you.
Q. I believe with regard to your questionnaire you indicated
that you've been a commanding officer in a number of settings, is that
correct, sir?
A. Yes.
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Q. And have you--I guess you have convened a number of summary
and special courts-martial?
A. Yes.
Q. About how long ago was the last time you convened a court?
A. Probably during my O-4 to O-7 tours, commanding officer of
Sigonella, probably towards the end of probably fall of '06, spring of
'07 time frame.
Q. Did any of the cases that you sent to court-martial involve
similar charges to these such as adultery, false official statement,
orders violations to your----
A. I'm sure there was orders violations. I don't recall a
specific adultery case. And probably false official statements I
would expect.
Q. Is there anything about the handling or outcome of those
cases which would influence your ability to serve as a member here in
court?
A. No.
Q. I gather also, as a commanding officer, you held
nonjudicial punishment on occasion?
A. Yes.
Q. Did you impose nonjudicial punishment on any individuals
for adultery?
A. I had cases that came up that were adultery related cases
and in general what I recall with the adultery cases they--we didn't
pursue those charges because of--it was undetermined the impact on
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good order and discipline. But I've not found anybody guilty of
adultery.
Q. Sir, did you impose NJP for false official statements and
orders violations?
A. Yes.
Q. At NJP for those sorts of offenses, did you convict anyone
that was--that had essentially said they didn't do it?
A. Yes.
Q. Do you understand, sir, that the burden of proof here is
substantially greater than that at a nonjudicial punishment?
A. Yes.
Q. Any difficulty applying that higher standard of burden
here?
A. No.
Q. I believe you also indicated, sir, that you were a legal
officer at some point, a squadron legal officer to begin with?
A. Squadron first tour, ensign, JG, was the legal officer for
a helicopter squadron.
Q. Had you received any training from the Naval Justice School
for that responsibility?
A. For that, I went to about a two-week legal officer course
for that one, and then I also attended a CO/XO legal officer--or legal
course prior to assuming I think my first command.
Q. How long ago was the last course you attended, sir?
A. It would have been in the--probably the '96 time frame.
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Q. Anything about either of the courses that stand out in your
mind?
A. No.
Q. I don't know how far into the weeds of the courses you went
back then, but will you be willing and able to follow my instructions
on the law even if that may conflict with what you recall being taught
back in the legal officer and CO school?
A. I don't recall that much, so, yes.
Q. Thanks, sir.
Also I think you indicated in your questionnaire that your
brother-in-law is a lawyer?
A. Brother-in-law is a lawyer.
Q. What type of law does he practice, do you know?
A. Mostly insurance and those type things. It's not criminal.
Q. While this trial is pending, will you be able to refrain
from contacting him and discussing legal matters?
A. Yes.
Q. Thank you, sir.
I believe you also indicated you knew someone who had
either been involved with or a victim of adultery. Is that correct,
sir?
A. In my time in Sigonella, there were several cases, all
community, that happened and that kind of thing happened.
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Q. Any close friends or acquaintances involved with that
setting?
A. No.
Q. Did any of those cases involve criminal prosecution aside
from the ones you discussed with us here?
A. No.
Q. I believe you also indicated reading some sort of a news
account involving adultery. What do you recall, sir?
A. I was thinking of the recent case with Vice Admiral
Stufflebeam who was somebody that I knew fairly well.
Q. Is there anything about that particular case that you read
or that you know about that would cause you to be reluctant to serve
here as an impartial member of the case?
A. No.
Q. Do you have any strong opinions as to how the situation was
handled with Vice Admiral Stufflebeam?
A. No.
MJ: Follow-on questions for Captain Stuyvesant? Lieutenant
Commander Messer?
Questions by the trial counsel:
Q. Good morning. You indicated that you know Rear Admiral
Hering. What type of involvement have you had with him? What level
of relationship do you have?
A. I met him probably twice and had a short interview with him
about a year ago for the upcoming job that I'm going to.
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Q. Do you see any apparent or actual conflict here with you
assuming duties as the chief of staff come end of summer and the fact
that you'll be called on to be a voting--you may be called on to be a
voting member of a court-martial he convened here today?
A. No.
Q. Do you feel pressured in any way that because you're going
to work for Admiral Hering that he may change his opinion of you if
you were to, say, acquit the accused in this case?
A. No.
Q. And just to be clear, you have not had any discussions with
the admiral or anyone else from the Region about this case?
A. I haven't spoken to Admiral Hering since June of last year.
TC: Thank you, sir. No further questions.
Questions by the military judge:
Q. Captain, during your discussions with Admiral Hering, did
he discuss his views of good order and discipline or concerns along
those lines that he may have for this Region?
A. When we talked during the interview, we talked mostly about
alcohol use and he asked me about different techniques that we used in
Sigonella related to our DUI numbers came significantly down and he
asked specific questions about what we did. So that was as close to
discipline as we talked.
MJ: Thank you, sir.
Commander Messer, anything further at this point?
TC: No, sir.
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MJ: Captain Callahan?
IMC: No. Thank you, Your Honor.
MJ: Very well. Captain, thank you for your responses. You may
join the other members at this time. Please do not discuss----
BAILIFF: All rise.
[All persons did as directed.]
MJ: ----our questions or your responses with them.
[CAPT Stuyvesant withdrew from the courtroom.]
MJ: And let the record reflect that Captain Stuyvesant has
rejoined the other members.
And if we could have Captain Booker, please.
[CAPT Booker entered the courtroom and was seated.]
MJ: Let the record reflect that Captain Booker has rejoined the
court. All others, please be seated at this time.
[All persons did as directed.]
INDIVIDUAL VOIR DIRE OF CAPTAIN ALLEN D. BOOKER
Questions by the military judge:
Q. Captain, what are your present duties at SPAWAR?
A. Director of contracts.
Q. And you're a Supply Corps officer, sir?
A. Yes, sir.
Q. How long have you been in Supply Corps?
A. Twenty-two years.
Q. And you do not know Lieutenant Commander Penland?
A. No.
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Q. Is there anything with regard to her being a Supply Corps
officer that would cause you to hesitate to serve as an impartial
member in this case?
A. No, sir.
Q. As director of contracts, are you responsible for
procurement then at SPAWAR or----
A. Yes. Well, the program offices, you know, if there's
[inaudible] election team we participate in that. I have PCOs to do
that. I don't personally sit on them, but if there's any issues, then
they come to me for resolution, basically.
Q. I see, sir.
Were you ever involved in allegations of contracting fraud
or irregularities in terms of breaches of the regulations----
A. No, sir.
Q. ----concerning procurement? Have you during your career
been involved in those issues or matters?
A. [No audible response.]
Q. I believe you were also in a prior assignment a commander
of DCMA, is that correct?
A. Yes, sir.
Q. What does----
A. Defense Contract Management Agency.
Q. And where was that, sir?
A. Up in Canoga Park in Los Angeles Region, in the valley.
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Q. Were you responsible for any sort of military justice
matters as director of that agency?
A. Well, I was--I was in charge of it, but I didn't have--hold
any cases or anything like that.
Q. I believe you responded affirmatively to knowing someone
who had either been involved with adultery or a victim of adultery.
A. Yes, sir.
Q. Can you explain just in general terms what that involved.
A. A prior CO of mine was--you know, there were allegations
that he had been involved in such conduct.
Q. Did you have any responsibility concerning an investigation
into that?
A. No, sir.
Q. Do you know how that was finally resolved, if at all?
A. It was handled in I guess NJP is basically what it was,
between [inaudible].
Q. Anything about how that was handled that caused you to have
strong feelings one way or the other?
A. No, sir.
Q. I believe you also indicated you have some religious
beliefs concerning adultery, is that correct, sir?
A. Yes, sir.
Q. What----
A. Just in my religion it's not--you know, that it's a sin
to----
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Q. Despite those religious beliefs and teachings, will you be
willing and able to follow my instructions as to the law of adultery
and apply my instructions to the case issues that are submitted to
you?
A. Yes, sir.
Q. Any hesitation to do that based on your religious beliefs?
A. No, sir.
MJ: Follow-on questions for Captain Booker, Lieutenant
Commander Messer?
Questions by the trial counsel:
Q. Captain Booker, in the course of your duties, have you been
involved in any IG complaints dealing with contract irregularities?
A. No.
Q. Have you ever been called on to investigate any type of
contract irregularities, either commands you've worked at or other
commands?
A. No.
Q. Have you--and I think you've already answered this. You're
not aware of any allegations of contract irregularities at Navy
Coastal Warfare Group ONE?
A. No.
Q. Does the fact that Commander Penland is a member of the
Supply Corps, as you are, affect your judgment in the case for better
or for worse in any way?
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A. No, sir.
TC: I have no further questions.
MJ: Captain Callahan.
IMC: Thank you, Your Honor.
Questions by the individual military counsel:
Q. Good morning, sir.
Sir, I believe you indicated that you served as an
investigating officer before?
A. Yes.
Q. Approximately when was that?
A. Back in when I was on board the USS BELLEAU WOOD as supply
officer and that was back in 2002.
Q. What was the general nature of that investigation?
A. Theft.
Q. Is there anything from serving as an investigating officer
that would make you more favorable towards the Government at a court-
martial?
A. No.
Q. And also, sir, in regards to your religious beliefs, in the
event that Lieutenant Commander Penland is convicted, is there
anything about your religious beliefs that require you or you feel
weigh strongly upon you to give a certain sentence?
A. No, sir.
IMC: Thank you, sir.
Thank you, Your Honor. No further questions.
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MJ: Lieutenant Commander Messer, follow-on questions?
TC: No follow-up questions, sir.
MJ: Very well. Captain, thank you for your responses. You may
rejoin the other members. Please do not discuss those responses or
our questions.
BAILIFF: All rise.
[All persons did as directed, and CAPT Booker withdrew from the
courtroom.]
MJ: And let the record reflect that Captain Booker has departed
the courtroom. If we could have Captain Blonien, please.
[CAPT Blonien entered the courtroom and was seated.]
MJ: Let the record reflect that Captain Blonien has rejoined
the court. All others, please be seated.
[All persons did as directed.]
INDIVIDUAL VOIR DIRE OF CAPTAIN JODY K. BLONIEN
Questions by the military judge:
Q. Literally welcome back, ma'am. I know you from another
court-martial. If you would just explain to the counsel involved what
that entailed.
A. There was a court-martial held here end of March and it was
a sexual harassment case.
Q. And do you recall how that case concluded, ma'am.
A. Yes. It was not guilty.
Q. And that with other counsel involved, not these counsel
here, correct?
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A. That's correct. Yes, sir.
Q. Anything about your service in that court-martial that
would cause you to hesitate to serve in this court-martial?
A. Nothing whatsoever.
Q. I believe you also indicated from your questionnaire that
you had lawyers in your family. Can you explain who they are.
A. Two brothers who are both attorneys. One's in private
practice in Sacramento and he does a lot of lobbying. My other
brother works in the State of Washington and he's like the senior
prosecuting attorney for the state.
Q. Anything about your associations with these brothers that
would cause you to favor the prosecution more than the defense?
A. No.
Q. And would you be willing to refrain from discussing this
case with them while it's pending?
A. Yes.
Q. Ma'am, you also indicated, I believe here, that you know
Commander Grundy. Was that from the earlier case?
A. He was part of the earlier case, yes, and he was dismissed.
So he was not part of the final jury selection.
Q. And do you know him from any other setting or was that it?
That was it?
A. That was all.
Q. And with regard to Commander Kelsch?
A. Well, we're both Nurse Corps, so I was in Guam when she
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was--she was reporting in and I was leaving, so ships passing in the
night. And she does pull duty at Naval Medical Center San Diego, so I
see her from time to time, passing duty over to her or she passes it
on to me, whichever the shift or duty.
Q. Anything about your prior associations with her which would
cause you to hesitate to serve as a member with her of this panel?
A. No. There's no association with her other than
professional, a few minutes at work and that was that.
Q. Based on that limited association, are you confident that
she could exercise an equal voice and vote with you and the other
panel members even though she's junior to you and you're both nurses?
A. I would assume so, yes.
Q. Anything about the prior association which would cause you
to hesitate to think that she could?
A. I really--I really don't know anything about her other
than, you know, professional passing reports is all I know about her.
MJ: Follow-on questions for the Captain, Lieutenant Commander
Messer?
TC: No, sir. No questions.
MJ: Captain Callahan?
IMC: Thank you, Your Honor.
Questions by the individual military counsel:
Q. Good morning, ma'am.
A. Good morning.
319
Q. Ma'am, I believe you indicated that you knew a service
member that had been charged with adultery.
A. Yes.
Q. And who is that service member?
A. I had an aviation tech that went on a cruise and she had
gotten in sexual adultery charges because of the cruise and adultery
with a married service member on that cruise.
Q. How was that case handled, ma'am?
A. It was handled by the wing. I was at Naval Hospital
Lemoore. I was the OIC of the clinic, but she was really attached to
the wing. So I just knew of her and the case. She was not--I think
she was--I really don't really know. I just know that it was handled
by the wing, really didn't affiliate anything with the hospital
because she wasn't really attached to the hospital, kind of a
confusing situation. But she was--continued to stay in the Navy and
continued to serve, so I'm not sure how the outcome of the trial was,
but----
Q. Is there anything about your knowledge of that case would
any way affect how you look at this case, ma'am?
A. No. All I know is what I told you.
Q. Yes, ma'am.
A. And I had no need to really know.
Q. Yes, ma'am.
A. It affects her work or her quality of work would, you know,
320
of our clinic and it was handled with the ship.
Q. Yes, ma'am. I believe you also indicated that you knew
somebody that whose spouse had committed adultery on them, as well.
A. Oh, being a nurse, we hear a lot of stuff, you know, from
patients and, yes, I've known of people who had, you know, divorces
and situations because of adultery, yes.
Q. Is there anybody that you've--friends, family, close
acquaintance with that's been the victim of adultery?
A. Well, not my personal family, no.
IMC: Thank you, ma'am.
No further questions, Your Honor.
MJ: Lieutenant Commander Messer, follow up?
TC: Just a few follow up, Your Honor.
Questions by the trial counsel:
Q. On the situation with the AT who was charged with adultery
and you said it was handled by the wing, what are your thoughts on
that? Was--did you think that the wing was appropriate in addressing
that type of behavior or do you think it was something better left
alone?
A. Well, I think it affected good order and discipline under
the cruise. I'm not sure how long it went on, how many people knew
about it. The member--the male member was married and my AT was not.
So I think--I think it causes problems in the work setting with
favoritism. I think the male was a pilot and she was an AT. So that
would just be my perception. I don't really know what happened.
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Q. Thank you, ma'am.
A. But I think it's good order and discipline. It causes
problems in the work center. So it does have to be addressed,
especially when you go on cruises.
TC: Thank you, ma'am. I have no further questions.
MJ: Captain Callahan?
IMC: No. Thank you, Your Honor.
MJ: Captain, thank you for your responses. You may rejoin the
other members.
BAILIFF: All rise.
[All persons did as directed, and CAPT Blonien withdrew from the
courtroom.]
MJ: Let the record reflect that Captain Blonien has rejoined
the other members.
If we could have Commander Grundy, please.
[CDR Grundy entered the courtroom and was seated.]
MJ: Let the record reflect that Commander Grundy has rejoined
the court. All others may be seated.
[All persons did as directed.]
INDIVIDUAL VOIR DIRE OF COMMANDER KEVIN A. GRUNDY
Questions by the military judge:
Q. Still on our list, huh, Captain--Commander?
A. Yes, sir, I am.
Q. Well, welcome back.
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A. Thank you.
Q. For the benefit of the other counsel who weren't in the
other case, can you explain to him--explain to them the other courts
that you've sat on.
A. I sat through one case, it was a case of BAH fraud and we
found the member guilty. And then the second case I was released
because it was the same two counsel members from the first case.
Q. Anything about the trial that you sat through on BAH fraud
that would cause you to hesitate to serve as a member in this
particular case?
A. No, sir.
Q. Was that the case that was just before Christmas that
went----
A. Yes, sir.
Q. ----into the wee hours of the night?
A. Yes, sir.
Q. Well, we may have a sequel to that one. We'll see.
Anything at all about the long hours involved in that trial
that would cause you to hesitate to serve as a member in this one?
A. No, sir.
Q. I believe you also indicated you knew a prospective
witness, Commander Milner?
A. Yes, sir.
Q. How do you know that individual?
A. If it's the Commander Milner that I think it is, he worked
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with my wife. He was XO of FTCPAC when my wife worked there. I've
met him on a couple occasions.
Q. Anything about the prior associations with that officer
which would cause you to give him more or less weight or credibility
as a witness?
A. No, sir.
Q. And are you presently still assigned to SUBRON EIGHT?
A. SUBRON ELEVEN.
Q. ELEVEN?
A. Yes.
Q. That's right. EIGHT would be on the other coast. ELEVEN.
And what are your duties there, sir?
A. Repair officer.
Q. I believe you indicated that this might be some hardship
for you concerning the either extended hours or the weekend session?
A. Well, when they first sent out the notice for this, they
were talking about it going into next week, and I have leave scheduled
next week. So it actually starts on Saturday, although I could do a
Saturday session, so that's not a problem. But if it goes past
Saturday, then I'm in trouble with my wife, so.
Q. Understood, sir.
I believe you also indicated you had family members or
close friends or acquaintances involved either with law or law
enforcement or medicine.
A. My sister-in-law is a dispatcher for her local police back
324
in Ohio.
Q. Anything about that particular association which would
cause you to favor the prosecution over the defense in this case?
A. No, absolutely not.
Q. And I believe you indicated you knew Captain Blonien?
A. Yes. I met her at that second court-martial. She was a
member of the panel.
Q. Anything at all about your brief interaction with her that
would cause you to hesitate to serve as a member of this panel?
A. No, sir.
MJ: Follow-on questions, Lieutenant Commander Messer?
Questions by the trial counsel:
Q. Sir, good morning. You had indicated that you had served
as an investigating officer at one time. Could you please explain.
A. I was the investigating officer for a case at Portsmouth
Naval Shipyard. It involved basically hazing in a group of master-at-
arms that they were--the senior guys were allegedly hazing some of
their junior members, newer members.
Q. How long ago was that, sir?
A. That was 2005.
Q. And would your dealings with that case in any way influence
your ability to be fair and impartial in this matter here today?
A. Absolutely not, no.
TC: Thank you, sir.
No questions, sir.
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MJ: Captain Callahan.
IMC: None. Thank you, Your Honor.
MJ: Thank you again, Commander, for your responses. You may
join the other members. Please do not discuss our questions or those
responses with them.
BAILIFF: All rise.
[All persons did as directed, and CDR Grundy withdrew from the
courtroom.]
MJ: And if we could have Commander Galvez, please.
And let the record reflect that Commander Grundy has
rejoined the other members.
[CDR Galvez entered the courtroom and was seated.]
MJ: Let the record reflect that Commander Galvez has rejoined
the court. All others may be seated.
INDIVIDUAL VOIR DIRE OF COMMANDER ELIZABETH S. GALVEZ
Questions by the military judge:
Q. I believe in your questionnaire, Commander, you indicated
that you were the CO of MEPS, is that correct?
A. Yes, sir.
Q. And that you had also convened upwards of 10 or more
courts-martials?
A. Yes, sir.
Q. Was that as CO of MEPS or in a different capacity?
A. TPU San Diego had requested lieutenant commanders and above
to help work through their caseload and I volunteered and I worked for
326
them.
Q. I see. So you were actually a summary court officer then
or you took their cases? I'm not quite----
A. Whatever the--what's the one where there's just the one
officer?
Q. Summary court officer?
A. Yes, with the defense, the prosecutor and the----
Q. You did that?
A. I did those.
Q. Okay. That's clear. What sort of cases were you involved
with when you were a summary court officer?
A. It would range from some of them were drug use, alcohol
abuse, UA, of that nature.
Q. Anything similar to these charges here, adultery?
A. No.
Q. All right. Have you served as a court-martial member
before where you're----
A. Like this?
Q. ----in a panel like this?
A. No.
Q. Okay. Do you understand that there are going to be
somewhat different procedures than you employed as a summary court
officer that----
A. Yes, sir.
Q. ----are at here?
327
A. Yes.
Q. Any difficulty making that transition?
A. No.
Q. And I believe you indicated that you--that this might be a
potential hardship for you given the extended sessions, or is that
just if you're able to make arrangements?
A. I just have to make arrangements with picking up kids after
school.
Q. Roger that.
A. But that can be easily arranged.
Q. Excellent. In your present assignment, you're at Naval
Surface Forces here?
A. Yes.
Q. How much longer will you be there?
A. My current tour is February of '09.
Q. I see. And are you involved in handling any disciplinary
matters on that staff?
A. Only involving civilian personnel and only as an advisor.
Q. I believe you indicated you knew Rear Admiral Hering, is
that correct?
A. I have met him. In a previous assignment, I was a
selection board sponsor as permanent party at the Bureau and he was a
board member; and with the long hours and the extended time I've had
discussions with him, and he would probably recognize my face, not my
name.
328
Q. Can you recall any specific discussions with him involving
military justice or good order and discipline type matters?
A. No, sir. Mostly professional.
Q. Based on your interactions with him, do you feel that he
has predetermined the outcome in this case whether there should be a
conviction or an acquittal?
A. No, not at all.
Q. I believe you indicated that you knew someone who had
either been involved with adultery in one way or the other. Can you
elaborate on that a little bit.
A. Unfortunately many--well, I wouldn't say--yes, sir, friends
and family I've known that have either been the spouse who was
cheating or the spouse who was cheated on. But none of them have ever
resulted in any type of charges. It was within in--within the
marriage relationship.
Q. Were any of them involved in the military at the time that
this occurred? I guess maybe some friends?
A. Yes. Yes. Military--most of my friends are in the
military, so some of them do cross that line, yes.
Q. Do you have any strong personal feelings with regard to how
those situations impacted the individuals that were involved?
A. I guess I don't understand the question.
Q. That's not a very good question. I apologize.
A. And I guess I see it as does it--I'm very clear on whether
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or not it would impact the command and the military structure
different from how it would impact the marriage relationship, and I
can separate the two, what's between the two parties, and then if both
parties involved in the relationship are within the same command or
have an influence one way or another and versus an adultery
relationship with a civilian or someone who in no way, shape or form
would be related to your working environment. Is that the question
you're asking?
Q. That's a better question than the one I asked so I think
that's where I was going. I think the follow on then would be would
you be willing to separate out any personal feelings you had about
adultery and just focus solely on the law as I give it to you----
A. Yes, sir.
Q. ----and apply it to the facts of this case?
A. Yes.
MJ: Very good. Follow-on questions for Commander Galvez,
Lieutenant Commander Messer?
TC: Yes, sir.
Questions by the trial counsel:
Q. Good morning, ma'am.
You indicated you have been an investigating officer
before. Would you please briefly talk about that.
A. Yes. Actually it was years ago, but I was a--it was an
allegation of sexual harassment within the command. This was in '94
at a previous duty station which has now been disestablished. But it
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was a full investigation that lead to recommended legal proceedings
for the--I can't think of--those that were alleged to be guilty.
Q. Now, your experience with that matter, has that in any
way--do you believe it has in any way--well, will it in any way make
you--not make you able to be fair and impartial in this hearing or in
this court here today?
A. No. Actually, I think it's a benefit because of the
experience of being able to talk to different witnesses and be able to
understand you remember this, you remember that and trying to get
things to--once you try to get the facts to reconcile it into a--
something that you can make a decision on.
TC: Thank you, ma'am.
Sir, I have no further questions.
MJ: Captain Callahan?
IMC: Thank you, Your Honor.
Questions by the individual military counsel:
Q. Good morning, ma'am.
A. Good morning.
Q. Ma'am, I believe you indicated that you've given
nonjudicial punishment before?
A. Yes.
Q. Approximately how many times?
A. Just once or twice.
Q. Did either of those cases involve adultery, false official
statements or orders violations?
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A. No.
Q. And when you served as a summary court-martial officer,
what was the approximate ratio of convicted cases to acquitted cases?
A. It's been a while. It's been about four or five years
since I was doing that regularly. I'd have to say it was 60/40,
50/50. It was not strong one way or the other.
IMC: Yes, ma'am. Thank you, ma'am.
Thank you, Your Honor.
MJ: Lieutenant Commander Messer?
TC: No follow up, sir.
MJ: Very well. Thank you, Commander, for your responses.
Please do not discuss them with the other members. You may rejoin
them at this time.
BAILIFF: All rise.
[All persons did as directed, and CDR Galvez withdrew from the
courtroom.]
MJ: And if we could have Commander Tucker, please.
Let the record reflect that Commander Galvez has rejoined
the other court members.
[CDR Tucker entered the courtroom and was seated.]
MJ: Let the record reflect that Commander Tucker has rejoined
the court. All others, please be seated.
[All persons did as directed.]
[END OF PAGE]
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INDIVIDUAL VOIR DIRE OF COMMANDER JOHN R. TUCKER
Questions by the military judge:
Q. Commander, from your questionnaire I understand that you
graduated and attended the U.S. Navy Academy; is that correct?
A. That's correct.
Q. During your time there at the academy, did you have any
courses concerning military justice or legal matters?
A. I did.
Q. Is there anything that stands out in your mind about the
content of those courses?
A. Twenty years later, no, sir.
Q. What is your present assignment, Commander? What do you
do? What's your----
A. I'm an advanced--what do they call it--command and staff
instructor at TACTRAGRUPAC.
Q. Do you have any interaction with the Naval Coastal Warfare
Group here?
A. Not formally.
Q. I believe you've indicated you have imposed NJP in the
past; is that correct?
A. I have.
Q. In what capacity? You were a CO or acting?
A. I was the officer in charge of a DET.
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Q. Oh, I see. Did any of the cases involve--that you handled
concern adultery that you recall?
A. It was not adultery, no.
Q. What sort of cases do you recall handling at NJP?
A. It was a failure to obey an order. I don't remember the
exact article, but it was--the Sailor was told to return to the ship,
failed to do so.
Q. Also, I believe you--in your questionnaire you indicated
that you were the victim of auto theft?
A. We recovered the car--well, the police recovered the car
about a week later.
Q. About how long ago was that?
A. Oh, that was--I remember the exact date. It was October
12th, 2003. 2003, yeah.
Q. Were you able to still use the car once it was returned?
A. Drive it to work every day.
Q. Was the individual or individuals apprehended that stole
your car?
A. I don't--I don't--the sheriff didn't tell us if they caught
the people that stole the vehicle; they just recovered the vehicle.
Q. So you weren't asked to make any--you weren't asked to
testify or anything like that?
A. No.
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Q. Any strong feelings pro defense, anti defense, pro
prosecution, anti prosecution based on that experience?
A. No. I think I'm pretty fair minded on that issue.
Q. I believe you indicated, with regard to adultery, you may
hold some religious views concerning that issue?
A. I don't see that my views are highly unusual. I--you know,
I go to church and, you know, I'm a Bible believing Christian. So
that in itself is--should explain my point of view on the matter.
Q. Obviously the teachings of the church may be somewhat
different than the legal requirements or the law concerning adultery.
Would you be able to separate the two and----
A. Absolutely, yes.
Q. How would you describe your involvement with the church?
A. Well, I'm not a member. I attend First Presbyterian Church
downtown fairly regularly, participate in a prayer group on Tuesday
morning.
MJ: Thank you, Commander. Follow-on questions, Lieutenant
Commander Messer?
TC: Yes, sir.
Questions by the trial counsel:
Q. Sir, you indicated that you've been an investigating
officer in the past. Could you please elaborate on that.
A. Well, I've done a JAGMAN investigation on a--when I was on
the USS INDEPENDENCE, I think it was the INDEPENDENCE, where an
investigation where line of duty, misconduct--not misconduct--a line
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of duty investigation on an accident that had occurred on board the
ship. A Sailor had gotten injured.
Q. How long ago was----
A. I was also----
Q. I'm sorry, sir. How long ago was that?
A. Oh, that would have been like '98, late 1998.
Then I was a safety officer--squadron safety officer and I
conducted at least four, well, mishap investigations.
Q. Have you ever conducted any criminal investigations?
A. I do not believe so. No, I have not.
TC: Thank you, sir. I have no further questions.
MJ: Captain Callahan?
IMC: Thank you, Your Honor.
Questions by the individual military counsel:
Q. Good morning, sir.
A. Good morning.
Q. Sir, obviously the Bible has a lot to say about various
punishments and there are certainly passages addressing adultery,
going all the way back to Leviticus, which deals with stoning for
adultery, to the New Testament where Christ addressed the Pharisees
when they brought a woman taken in adultery.
Are there any Biblical passages or teachings from the
Presbyterian Church that would affect the punishment that you would
give in this case if you--if the members found Lieutenant Commander
Penland guilty of adultery?
336
A. Well, the question that was asked, the original question
that was asked me was do I hold a religious conviction about adultery.
Q. Yes, sir.
A. So answering that question was an affirmative. Now, as to
my ability to discern the difference between them, what my religious
teaching is and what the secular or the legal requirements are, I
don't have a problem making that distinction and staying within the
legal requirements of the law.
Q. Yes, sir.
A. Did that answer your question?
IMC: That does. Thank you, sir.
Thank you, Your Honor.
MJ: Follow-on questions, Lieutenant Commander Messer?
TC: No, sir.
MJ: Very well. Commander, thank you for your answers. Please
do not discuss them or the questions with the members. You may rejoin
them at this time.
BAILIFF: All rise.
[All persons did as directed, and CDR Tucker withdrew from the
courtroom.]
MJ: And let the record reflect that Commander Tucker has
rejoined the other members.
If we could have Commander Good, please.
[CDR Good entered the courtroom and was seated.]
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MJ: Let the record reflect that Commander Good has rejoined the
court. All others, please be seated.
[All persons did as directed.]
INDIVIDUAL VOIR DIRE OF COMMANDER CHARLES P. GOOD
Questions by the military judge:
Q. Commander, you're the skipper of USS KIDD; is that correct?
A. That's correct, sir.
Q. Thank you for taking the time to join us today. I gather
from your questionnaire that you're also a graduate of the Naval
Academy?
A. That's correct, sir.
Q. During your time there, you, I gather, also took part in or
had a requirement for legal courses or military justice matter
courses?
A. Naval law, yes, sir, was part of the curriculum back then.
Q. Anything that stands out from those courses in your mind
concerning criminal law matters, military justice?
A. I've had plenty of exposure to that since being an officer,
sir.
Q. As skipper of the KIDD, have you had to impose nonjudicial
punishment?
A. I have, sir, many times.
Q. Any of the instances involve adultery or charges similar to
those before the court today?
A. No, sir.
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Q. Have you convened any courts-martial during your time as a
skipper?
A. I have not, sir.
Q. I believe you indicated that the expected sessions of this
court might be a hardship or a conflict for you. Can you elaborate on
that, sir.
A. Sir, you know, I've been appointed a member of this court
and I will do my utmost to fulfill those duties, and I heard what you
said about this being my primary duty of the week. But, as sitting CO
of a warship, there are many calls on my time and the time frame
indicated for this court is--has changed a little bit and we try to
rewiver [ph] the ship's schedule around what the original dates were,
and we can do that again. I'll jump on the phone at lunch; there's
nothing insurmountable. But there were a couple of things that I was
hoping to be able to take care of on the ship this week, but we'll
make it work.
Q. Aye, sir. You've got an XO that you can trust some matters
to?
A. Yes. But the XO can't hold NJP and I've got significant
cases pending.
Q. Understood. We'll maybe also have some flexibility
concerning our schedule, as well, that maybe we can free up a couple
hours either in the morning or the afternoon so you can accomplish
that, if necessary.
339
I believe in your questionnaire you also indicated you had
family members or close friends who were involved with the law,
medicine, military.
A. Yes, sir. As far as law enforcement, my mother is a
retired deputy probation officer from Orange County Juvenile Hall,
State of California. My father is retired City of Southgate Police
Department. He was not a law enforcement officer. He ran an anti-
gang program for them for many years.
And as far as medical goes, my grandfather was a physician.
Q. Anything about the work your parents did that would cause
you to favor the prosecution or the defense in this case?
A. No, sir.
Q. I believe also you indicated that you knew Captain Noel?
A. Yes, sir. Captain Noel was--when I was chief staff officer
of Destroyer Squadron 22 in Norfolk, he was one of the COs of our of
our DVGs and then he was a War College classmate of mine, as well. So
I know Captain Noel rather well.
Q. Anything about the prior association which would cause you
to give him more credibility as a witness than any of the other
witnesses that I have listed that you don't know?
A. I believe I can remain objective, sir, but I have a very
high opinion of Captain Noel.
Q. About how long ago was your last contact with Captain Noel?
A. That would have been our graduation from War College, so
about a year ago.
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Q. Outside of a professional setting, did you also have
interaction with him socially?
A. Yes, sir.
Q. What sort of interaction would you have with him?
A. Mostly at, you know, various War College get-togethers and
after-hours social functions; I was acquainted with his wife, as well.
Q. And now I believe you indicated you may know Captain
Sturges, you just have to see him?
A. I would just have to see him. The name sounds familiar,
but his connection with the billet at, you know, Special Warfare Group
did not ring a bell with me. So it's just an unusual name. I may be
confusing that with the name of a Surface Warfare officer called
Sturges.
Q. Unfortunately I don't have any more information I could
provide. I believe actually he's Sturges, the third, so maybe you
know the second Sturges or----
A. Yes, sir.
Q. ----not sure. Also, I believe you indicated that with
regard to knowing the attorneys that were listed involving getting
advice from the Region, is it Rear Admiral Hering's staff or is it
some----
A. Actually Commander Messer.
Q. Commander Messer. Okay.
A. I have never met Commander Messer and if we encountered
each other on the street in civilian clothes, I would not have known
341
him. Commander Messer--it's more by directly communicating with
Commander Messer. But Commander Messer has provided some advice to my
XO on some of our legal cases since my taking command, including the
one that I want to try and hold mast on this week; and I will state
for the record that that advice has been impeccable or professional,
although again there has been no direct communication between the two
of us.
Q. Anything about the interaction which would cause you to
give the prosecution a more favorable view than the defense in this
case based on that interaction?
A. No, sir, other than the fact that I just hold his legal
credentials in very high standing, but, you know, I think any JAG
officer would have given similar advice, and Commander Messer is not
the only JAG officer also that's given us advice, so it's not a sole
source kind of thing.
Q. What sort of case did that advice involve?
A. Alleged sexual assault.
Q. How long have you been in command at the KIDD?
A. About three months, sir.
Q. I believe also you've indicated you knew someone that had
been involved, either participating in adultery or the victim of
adultery?
A. Yes, sir. Several military friends of mine, in fact, one
who's currently in the process of a divorce because his spouse was
committing adultery with another Naval officer. In fact, I just saw
342
him yesterday.
Q. And I gather then a fairly close friend?
A. Yes, sir, a Naval Academy classmate.
Q. Did that scenario involve criminal matters or is it
strictly a divorce issue?
A. Yeah, I think it's strictly a civil matter at this point.
Q. Have you discussed with your friend the impact that that
situation has had on him?
A. Yes, sir.
Q. Have any strong feelings about adultery or the way it's
handled in society that would impact your ability to serve as a fair
and impartial member in this trial?
A. I believe I could serve as a fair and impartial member,
although I do obviously have strong feelings in the matter, but I
think I'm a professional and can put that aside.
Q. I believe you also indicated you have some religious
beliefs or experience or training concerning adultery?
A. I wouldn't say training, sir, but, you know, as an
Evangelical Christian, obviously that's a subject, you know, which
there's fairly clear guidance if you kind of belong to the church or
adhere to that faith that there's certain standards on that.
Q. Would you be willing to set those aside and apply the law
strictly as I give it to you concerning adultery?
A. Yes, sir. In fairness, I would say that, you know, the
beliefs of my church would indicate that, you know, when assigned to
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judicial matters, we're supposed to do a good job with that, as well,
as part of our, you know, faith.
Q. I also believe you indicated that with regard to having
read a news account involving adultery. What do you recall reading?
A. It was Admiral Stufflebeam which has been in the news quite
prominently. Although that's obviously a very old case, it's been
kind of resurrected, but it's certainly been in the news.
Q. Do you have any strong feelings about how that situation
was handled?
A. I did not know Admiral Stufflebeam, sir. It's just
obviously very shocking and disturbing when somebody is in that high
of a position gets impacted by it, but again it was a rather old case
that had been dredged up.
MJ: Follow-on questions for Commander Good, Lieutenant
Commander Messer?
Questions by the trial counsel:
Q. Sir, during the questioning, you've indicated you've been
an investigating officer before. Could you please elaborate.
A. Yes, sir. I have not been an investigating officer for a
court-martial, but I was appointed as an investigative officer and per
the JAGMAN for several different things ranging from, you know,
security violations to some misconduct that happened in administrative
support in Bahrain, various and sundry things, never really criminal
in nature, more, you know, conduct related or again security.
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Q. Do you feel any of those investigations would in any way
influence your ability to be fair and impartial in this matter?
A. No, sir. If anything, the reverse.
TC: Thank you. I have no further questions.
MJ: Captain Callahan?
IMC: Thank you, Your Honor.
Questions by the individual military counsel:
Q. Good morning, sir.
Sir, is there anything from either your experience with
beliefs as an Evangelical Christian or from the experience that your
friend has gone through with the adultery that would require you to
give a certain sentence, if sentencing became necessary in this case?
A. No.
IMC: Thank you, sir. Nothing further, Your Honor.
MJ: Lieutenant Commander Messer, anything further?
TC: No follow up, sir.
MJ: Thank you, Commander Good, for your responses; please do
not discuss them or our questions with you. You may rejoin the other
members at this time.
BAILIFF: All rise.
[All persons did as directed, and CDR Good withdrew from the
courtroom.]
MJ: And, Bailiff, if we could have Commander Kelsch join our
court. And let the record reflect that Commander Good has departed
from the courtroom.
345
[CDR Kelsch entered the courtroom and was seated.]
MJ: Let the record reflect that Commander Kelsch has rejoined
the court. All others, please be seated.
[All persons did as directed.]
INDIVIDUAL VOIR DIRE OF COMMANDER TONJA L. KELSCH
Questions by the military judge:
Q. Commander, I believe that you indicated you know Captain
Blonien.
A. Captain Blonien.
Q. Blonien.
A. Yes, sir.
Q. How do you know her?
A. I worked with her in Guam a little bit. She was overlapped
a couple of months and she was leaving, I was coming in, and then I
followed her a little bit in the job that she had done over there in
Guam. And then I also had worked with her a little bit here at Naval
Medical Center. She is one of the nursing supervisors and I do duty
as a nursing supervisor, so purely professional.
Q. Anything at all about your interaction with her which would
cause you to hesitate to serve as a member of this panel?
A. No, sir.
Q. Even though you're junior to Captain Blonien, would you
feel able to exercise an equal voice and vote with her?
A. Yes, sir.
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Q. I believe you indicated you knew someone or individuals
that had been involved with adultery or the victims of adultery, is
that correct?
A. Correct.
Q. Can you elaborate a little bit in general terms?
A. Well, a couple of instances. I didn't personally know, but
I was on another court-martial that involved adultery prior to this
one. And then I also had acquaintances that had gone through changes
in their marriage and the process through that was some adultery.
Q. With regard to the court-martial, did you actually sit as a
member in that court?
A. Yes, sir.
Q. About how along was that?
A. Uh----
Q. Quite a while?
A. No, no.
Q. Oh, not too long?
A. No. It was like two to three months ago.
Q Okay. It didn't involve either of the counsel in this
case?
A. No, it did not.
Q. Do you recall the outcome of that case?
A. I do recall the outcome of that case.
Q. What was it? Was it----
A. Not guilty.
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Q. Found not guilty?
A. Yes.
Q. Okay. Anything about your service in that court-martial
that would cause you to hesitate to serve as a member in this one?
A. No, sir.
Q. Would you be willing to set aside any instructions that you
received from the judge in that court-martial and base your decision
in this case solely on the instructions and the evidence that's
developed in this court-martial?
A. Yes, sir.
Q. Now, with regard to acquaintances, you indicated that, I
guess, their personal situation involved maybe an adultery. Do you
have any strong feelings about how that impacted them or how it was
handled?
A. No, sir.
Q. No strong feelings?
A. No. I think they ended up both being happy.
Q. So it worked out for the best?
A. Yes.
Q. Okay. Do you have a nursing specialty, Commander?
A. Meds or medical surgical nursing and ambulatory care.
MJ: Follow-on questions, Lieutenant Commander Messer?
TC: Yes, sir.
348
Questions by the trial counsel:
Q. Ma'am, briefly, do you remember--can you give us some more
specifics about that court-martial that you sat on two to three months
ago. I guess the first question, where was it located? Was it here
in----
A. Right here in this room.
Q. And was one of the members that you served with on that
court-martial panel Commander Doud?
A. I do not recall. No, sir.
Q. No?
A. I do know that it was not because I was the only commander
on board. Everybody else was junior to me.
Q. Other than adultery, what other--what were the charges
against the accused in that case?
A. Fraternization and rape.
Q. Other than that--that court-martial, have you sat as a
member on any others?
A. No.
TC: Thank you, ma'am. I have no further questions.
MJ: Captain Callahan?
IMC: Thank you, Your Honor.
Questions by the individual military counsel:
Q. Good morning, ma'am.
A. Good morning.
349
Q. Ma'am, you look somewhat familiar. Have I actually--I've
been at Balboa for shoulder processes now for, my goodness, about
three or four years that have included multiple surgeries. Have you
seen me over at Balboa by any chance?
A. Not that I'm aware of, not--certainly not that I----
Q. Just wanted to make sure you didn't see me crying or baby-
like after surgery or something.
MJ: You were probably unconscious, Captain. I don't expect
that's going to be repeated here.
Q. And then, ma'am, also I believe you indicated you served as
an investigating officer before.
A. Only in a medical/legal procedure that went wrong and I had
to do the investigation for that.
IMC: Thank you, ma'am. No further questions.
Thank you, Your Honor.
MJ: Follow up, Lieutenant Commander Messer?
TC: No, sir.
MJ: Commander, thank you for your responses. Please do not
discuss them or the questions. You may rejoin the other members at
this time.
BAILIFF: All rise.
[All persons did as directed, and CDR Kelsch withdrew from the
courtroom.]
MJ: And let the record reflect that Commander Kelsch has
rejoined the other members.
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Please be seated.
[All persons did as directed.]
MJ: Counsel desire to recall any other members for further
questioning? Lieutenant Commander Messer?
TC: No, sir.
MJ: Captain Callahan?
IMC: No. Thank you, Your Honor.
MJ: Very well. We'll take a brief recess here so you can
contemplate challenges, which we will take up when you return. If we
could reassemble at 20 minutes after the hour. Court stands in
recess.
[The session recessed at 1109 hours, 21 May 2008.]
[The session was called to order at 1129 hours, 21 May 2008.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, except the
members who remain on recess.
Does the prosecution have any challenges for cause?
TC: Prosecution does not, sir.
MJ: Very well. Does the Defense have any challenges for cause?
IMC: No, Your Honor.
MJ: Does the prosecution have any peremptory challenge it would
like to exercise?
TC: Yes, sir. The Government would exercise its peremptory on
Captain Blonien.
351
MJ: Very well. Does the Defense desire to be heard as to the
exercise of the Government's peremptory challenge?
IMC: No, Your Honor.
MJ: Very well. Captain Blonien will be excused.
Does the Defense have a peremptory challenge it would like
to exercise?
IMC: Yes, sir. The Defense will like to use a peremptory
challenge on Captain Stuyvesant.
MJ: Very well. Does the Government care to be heard as to the
exercise of the Defense's peremptory challenge?
TC: No, sir.
MJ: Very well. It appears that we have a quorum. Excellent.
When I invite the members to rejoin us, we will excuse
those members who have been excused and then I'll place the members in
a lunch recess. During that recess, hopefully counsel will be able to
interview with Lieutenant JG Wiggan. For planning purposes at this
point, an hour and a half for lunch, do you think that's enough or are
you going to need more time with Lieutenant JG Wiggan than that?
Commander Messer?
TC: Sir, I only anticipate needing about 15 minutes to just get
a general idea of what he's going to say and then I'll do a more
exhaustive interview this evening.
MJ: Captain Callahan?
IMC: Sir, if we could have about two hours actually, sir, I
think that would make it a lot easier, because obviously this--
352
depending on what he says may require entire reworking of a Defense
opening and theme entirety even.
MJ: Okay. We'll do that.
Anything else we need to discuss outside the members'
presence before they rejoin us?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. This 39(a) session is concluded.
Bailiff, please ask the members to rejoin our court if they
are all assembled.
[The Article 39(a) session concluded at 1131 hours, 21 May 2008.]
[END OF PAGE]
353
[The court-martial was called to order at 1132 hours, 21 May 2008.]
MJ: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Captain Stuyvesant and Captain Blonien, thank you for your
service. You are excused. You may depart from the courtroom.
All rise.
BAILIFF: All rise.
[All persons did as directed; CAPT Stuyvesant and CAPT Blonien, the
challenged members, withdrew from the courtroom.]
MJ: Please be seated.
[All persons did as directed.]
MJ: Members, at this point it is necessary for me to take an
extended lunch recess to allow counsel to make some further
preparations for you this afternoon. Again, subject to my standard
instructions to not discuss this case amongst yourselves or with
anyone else, do not consult any sources, and so on and so forth, those
standard instructions, in a moment you may depart on lunch recess. I
354
would ask that you reassemble at 1330.
For planning purposes, I hope to be able to press on this
evening until about 1800, 1830 hours. So you might want to have
either a large lunch or bring some snacks for the afternoon session.
When you return, counsel will be given an opportunity to present their
opening statements to you. Those typically take 15 to 30 minutes or
so apiece, followed by the presentation of the prosecution's evidence.
Again for planning purposes, 1800, 1830 hours today, and we'll revisit
the schedule for tomorrow once we decide how far we get this
afternoon.
So subject to my standard instructions, members, you may
depart on lunch. If you would please reassemble 1330 hours.
BAILIFF: All rise.
[All persons did as directed.]
MJ: Members may depart on lunch recess. And during the recess,
we're going to reconfigure your seating, so don't be too surprised
when that happens, members. The members may depart.
[The members withdrew from the courtroom.
MJ: Court stands in recess. Carry on.
[The court-martial recessed at 1134 hours, 21 May 2008.]
[END OF PAGE]
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[The Article 39(a) session was called to order at 1330 hours, 21 May
2008.]
MJ: The 39(a) session is called to order.
Let the record reflect that all parties present prior to
the lunch recess are again present before the Court at this time,
except for the members who remain at recess in the deliberation room.
During the recess, counsel brought to the Court's attention
a concern from the accused that one of the spectators, Lieutenant
Commander Marshall, should be excluded from observing the proceedings.
Captain Callahan, if you would please restate the position
that you are raising here.
IMC: Yes, sir. Sir, Lieutenant Commander Penland's position is
that Lieutenant Commander Marshall has been involved with acts of
reprisal and illegally influencing people, witnesses, command, in this
case. She is the subject of numerous complaints that Lieutenant
Commander Penland has raised and she feels that she should not be
allowed to sit in here and observe the proceedings in here. She has
concerns about her trying to use what she sees in here to then
influence maybe further witnesses down the line.
In regards to the Government's concerns, personally I've
never seen an SJA sit in before; I don't think an SJA needs--you know,
that's neither here or there as to whether or not it's allowed, but
it's certainly not something that's required or a duty for an SJA to
sit in so they can go back and report to the command. Certainly the
command is more than capable of calling the trial counsel, Commander
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Messer, if they need any updates or anything on the trial, sir.
MJ: Lieutenant Commander Messer, the Government's position?
TC: Sir, this is a public proceeding. Absent any action by
Lieutenant Commander Marshall that would deem her inappropriate to be
in this court or acting out or doing something that would be improper,
she should be allowed to view it just like anyone else. These are--
this is a matter of public record that occurs in this courtroom.
Anyone should be allowed to view it, and this notion that she'll
somehow take the information that comes out of this court-martial and
use it against Lieutenant Commander Penland is absurd.
So absent some showing that Lieutenant Commander Marshall
is trying to disrupt the proceedings with her presence, I would say
she should be allowed, like anyone else should be allowed, to be in
this courtroom.
MJ: Captain Callahan, anything further?
IMC: Sir, Commander Penland feels that Commander Marshall has
gone back in the past after other court proceedings, after other--for
instance, the Article 32 hearing and tried to influence or change
people's perceptions or testimonies based on what she observed in the
courtroom. That is all I would have to add, sir.
MJ: Are there witnesses from the command that are on the list
here, prospective witness list?
IMC: There are, sir. There's Commander Masi, Captain Sturges
who's the former commanding officer of the command, as well. Chief
Zogaib, as well, I believe, the Government's first witness. Sir,
357
there are multiple witnesses from Naval Coastal Warfare Group ONE that
are coming in to testify, sir.
MJ: Commander Messer, the potential impact on prospective
witnesses, is that the Government--does the Government not share a
concern?
TC: Sir, we do not share in that concern and I guess the--I
wouldn't even acknowledge the Defense's accusations or reply to that.
I mean, what they're alleging is that Lieutenant Commander Marshall is
obstructing justice, but yet they have absolutely no evidence of that.
I think it's absurd allegations and I think what it is is a--there's a
personal tiff between the accused in this case and Commander Marshall
and the accused somehow does not want to give Commander Marshall the
ability or the--to be here present while she goes through a court-
martial. I mean, I don't see any other--there's no grounds for it.
There's no evidence that Commander Marshall is talking to witnesses or
doctoring or telling witnesses how to improve their testimony. It's
absolutely absurd.
MJ: Captain Callahan, do you have any evidence to offer the
Court of such witness tampering?
IMC: I do not, sir, outside of allegations has been made of it
and filed by Commander Penland, sir.
MJ: Well, certainly the Court would be concerned if such
allegations were supported in fact. With regard to the potential for
any witness tampering, the Court will certainly permit the parties an
opportunity to explore that issue if they feel they have a reasonable,
358
ethical basis to explore that with any potential witness.
However, as the Government's indicated, this is a public
trial and, absent some specific evidence of witness tampering,
obstruction of justice or other improper conduct, the Court's not
inclined to prohibit any particular spectator from viewing these
proceedings. So the concern is noted and again, if there is some more
substance to the concern, please ask to revisit it at an appropriate
time.
IMC: Understood, Your Honor.
MJ: Other matters we need to address outside the members'
presence?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. This 39(a) session is concluded.
Bailiff, if you would see if our members have reassembled
after lunch.
BAILIFF: Yes, sir. [Verifying members' presence.] Your Honor,
all the members are present.
MJ: Excellent. Please ask the members to rejoin us.
BAILIFF: Aye, sir.
[The Article 39(a) session concluded at 1335 hours, 21 May 2008.]
[END OF PAGE]
359
[The court-martial was called to order at 1335 hours, 21 May 2008.]
MJ: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
Captain Booker, you have been seated to the left of our
senior member.
Members, please take your seats.
[The members did as directed.]
MJ: All others, please be seated.
[All persons did as directed.]
MJ: Court is called back to order.
Let the record reflect that all parties present prior to
the lunch recess are present before the Court at this time, to include
all of our members.
Members, I hope you had a refreshing lunch. I have some
additional preliminary instructions for you before we receive the
opening statements of counsel.
First of all, when a witness is called, the counsel who
calls that witness questions the witness first and then the opposing
counsel will also be given an opportunity to ask questions. In the
event counsel make an objection to a question or some item of evidence
and I sustain the objection, then you must completely disregard the
question or item of evidence. The alternative is that I might
overrule the objection, in which case you may properly consider the
question or that item of evidence.
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When counsel have finished questioning the witnesses, if
you have substantial questions you would like to me ask--you would
like me to ask on your behalf, you'll be given an opportunity to do
so. You will find in your folders forms for questions. Please write
your questions out on one of those forms that are provided. If you
would please print neatly and sign your name, as well, so that that an
accurate record of your question can be maintained. This method gives
counsel and myself an opportunity to review your questions before
they're asked since those questions, like those of counsel as well as
mine, are subject to objection.
Please ensure your questions are relevant to the issues
before this court and are not designed or biased to aid one side or
the other. Do not allow any other members to see your question. And
whether your question is asked or not, it will be added to the record
in this case.
Bear in mind that counsel are responsible for preparing and
presenting their case. In questioning the witnesses, you must not
depart from your role as an objective, impartial trier of fact or
become an advocate for either the prosecution or the defense.
Next, during any recess or adjournment, you may not discuss
this case with anyone, nor may you discuss the case amongst
yourselves. You must not listen to or read any account of this trial
in the news media or elsewhere or consult any source, written or
otherwise, as to the matters pertaining to this case. Do not visit
the scene of any alleged incident. You must withhold your discussion
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of this case until you are all together in your closed session
deliberations so that all the members will have the benefit of those
discussions. Should anyone attempt to discuss the case in your
presence, stop that person immediately and notify me at the next
session of open court.
Next, each of you may take notes, and there should be
materials provided for in your folders for doing so. You may use
these notes to refresh your own memory during your deliberations, but
your notes may not be read or shown to the other members. During any
period of recess or adjournment, you may leave your notes behind and
they'll be safeguarded for you; or you may take them with you. When
you leave the courtroom, please cover your notes so that no one can
see them. When the trial is over, you can take your notes with you or
you can leave them behind and they will be destroyed.
Fourth, we'll be taking recesses throughout this trial. If
you feel the need for a recess before I actually call for one, let me
know and I'll attempt to accommodate such a request. I don't want
anything to interfere with your full attention to the courtroom
proceedings.
With that note, I'll also mention that there's extensive
construction in this building and sometimes it may be directly
overhead. If that becomes a distraction for you, if you're unable to
hear some testimony or what's going on in the courtroom, let me know
and we will address that immediately and repeat whatever testimony was
unable to be understood.
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Also, I will also need to hold sessions outside of your
presence with counsel; those are called "39(a) sessions." Those are
sessions at which I have to resolve either objections or other matters
that are within my responsibility as the military judge. Sometimes
the duration of those sessions are extended because new issues arise
or there are other matters that must be addressed outside your
presence. I will try to estimate as best I can the time for any
recesses or periods that are outside your time here in court, but
again these sessions may be extended. So I would appreciate your
patience consistent with the administration of justice in this case.
If there are any questions over these additional
preliminary instructions, please raise your hands. Negative response
from all panel members.
Members, in a moment you are about to hear the opening
statements of counsel. You are instructed that the opening statements
of counsel are not the evidence of this case. The opening statements
are designed to assist you in understanding what evidence it is that
counsel anticipates that will be offered to you.
Lieutenant Commander Messer, you may present your opening
statement at this time.
TC: May I enter the well, sir?
MJ: You may.
And, members, you will note hopefully your computer screens
coming to life. If your screen is now activated, if you would please
raise your hand.
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TC: Hold on, sir.
MJ: Okay.
TC: They should have it now.
MJ: Members, are there--are your screens activated?
Affirmative response from all panel members.
Members, this is known as a "demonstrative aid." This is
not evidence in the case, but is designed to assist counsel in
explaining to you again what the evidence is they believe will be
admitted.
Lieutenant Commander Messer, you may present your
statement.
TC: Thank you, sir.
Sex, lies and manipulation. These are the tools that the
accused used, along with her rank and her knowledge of the Navy, to
coerce and influence an enlisted Sailor to leave her marriage. The
accused embarked on a course of action that involved deliberate and
premeditated conduct, and that conduct showed utter disregard for good
order and discipline, the responsibilities that an O-4 should uphold,
and it impacted three commands, not just her own, but also the
commands of USS PRINCETON and USS MOBILE BAY.
Now, there's three major players in this case, husband,
wife and the accused. The husband is Lieutenant JG Mark Wiggan. At
the time of the offenses alleged, he was the main propulsion assistant
on board USS PRINCETON. He's a Lieutenant JG, an LDO. The wife is
NC1 Kimberly Lewis-Wiggan. Now, NC1 is now an NCC, and Chief will be
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here to testify at trial, along with Lieutenant JG Wiggan.
I've prepared for you a time line and I ask that you follow
along as I go through the steps that led to this court-martial here
today.
Lieutenant JG Wiggan and NC1 Lewis-Wiggan--and I'm going to
refer to NC1 Kimberly Lewis-Wiggan as NC1 just because that's her--was
her rank at the time of the charges. NC1 and Lieutenant JG Wiggan
were married in 2001, March of 2001.
In 2006, beginning in March, NC1 Lewis-Wiggan deployed with
the MOBILE BAY. She'll tell you on the stand that while she was
deployed, her husband began a romantic relationship with Lieutenant
Commander Penland. When she returned from deployment in August of
2006, things were not right with her husband. They met in Hawaii for
a romantic vacation. Things did not go well. She ended up staying on
by herself. The husband flew home alone.
When she got back to San Diego, he left. She stayed in the
house herself. They stayed apart for about a month and a half.
Things were not going well.
And then in September----
[Fire alarm sounds.]
MJ: Court stands in recess. Members, please cover your notes.
BAILIFF: All rise.
[All persons did as directed.]
MJ: And if we could depart the building.
[The court-martial recessed at 1344 hours, 21 May 2008.]
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[The court-martial was called to order at 1403 hours, 21 May 2008.]
MJ: Bailiff, if you would please ask the members to join us.
BAILIFF: Yes, sir.
MJ: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: Court is called back to order.
Let all parties--let the record reflect that all parties
present prior to the recess for the fire alarm are again present
before the Court at this time, to include all our members.
All others, please be seated.
[All persons did as directed.]
MJ: Lieutenant Commander Messer, if you would please continue
with your opening statement.
TC: May I enter the well, sir?
MJ: You certainly may.
TC: You have before you a time line and I was describing for
you that Lieutenant JG Wiggan and NC1 Lewis-Wiggan had decided to
separate as of the 1st of August.
Now, in mid September 2006 they reconciled. Lieutenant JG
Wiggan moves back in with NC1 Lewis-Wiggan, and then a strange thing
happens. Approximately a week later or a few days later NC1 Lewis-
Wiggan receives a phone call at work, on board USS MOBILE BAY, and the
individual on the phone identifies themselves as Lieutenant Commander
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Penland and they proceed to inform NC1 Lewis-Wiggan that they're
having an affair with their husband--with her husband, Lieutenant JG
Mark Wiggan, and that it's in her best interest to get a divorce. The
person then goes on to explain the best way to do this, how you can
get the most money from your husband, so on and so forth. NC1 Lewis-
Wiggan will tell you on the stand she doesn't quite know what to make
of this.
About a day later or two days later another call comes in.
Says, "Hey, you know, what are you going to do? I'm having an affair
with your husband. Let's do something here." She challenges the
person. She says, "Wait a minute. If you're having an affair with my
husband, let's see some proof. Show me some photos." Well, a short
time later an e-mail arrives to NC1 Lewis-Wiggan's personal hotmail
account. It's from "the other woman." That's the name on the byline,
D underscore OTH underscore WMN at hotmail.com. And that you'll get--
you'll see this e-mail and it says "Seeing is believing." And
attached to that e-mail are two photos. They're two naked photos of
Lieutenant JG Mark Wiggan, and they're in the form of a PowerPoint
presentation.
Well, at this point NC1 Lewis-Wiggan will tell you this
caller has her attention. Something is going on. She wants to know
who this person is, so she looks on an NMCI for a Lieutenant Commander
Finland. There is no such person. Not being deterred, she looks at
the PowerPoint photos themselves and she checks on the properties to
see who the author of those PowerPoint photos is. The author was a
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Syneeda Penland. NC1 Lewis-Wiggan looks in NMCI for a Syneeda Penland
and there she is, a Lieutenant Commander Syneeda Penland attached to
Navy Coastal Warfare Group ONE, and Lieutenant Commander Penland was
an O-4 at the time and she had just been promoted.
Well, soon there after that e-mail, another phone call
comes in. This time NC1 Lewis-Wiggan, when the person announces
themselves as Lieutenant Commander Finland, says, "Oh, hi, Lieutenant
Commander Penland," but the person on the other end of the phone just
continues on urging her to get a divorce, doesn't say "That's not me,
I don't know who that person is," just continues on trying to push her
to get a divorce from her husband.
Now, you're going to hear supporting testimony from
PS1 Lee. He was a co-worker of NC1 Lewis-Wiggan on board MOBILE BAY.
He received several of these phone calls and he's going to tell you
that the caller would never identify themselves or, if they did, they
would use an odd name like Ms. so-and-so or Lieutenant so-and-so, but
they'd never use the same name and they would never want to leave a
message. But he will tell you that he recognized it was the same
voice every time.
NC1 Lewis-Wiggan will tell you that several--she received
several of these phone calls directly to her, too.
You'll also see phone records from--that will be admitted
into evidence and Commander Doud, the investigating officer who was
assigned by Navy Coastal Warfare Group ONE to look into this matter,
he used as part of his investigation. He's going to tell you that
368
there were calls made from Lieutenant Commander Penland's government
issued cell phone to the USS MOBILE BAY.
You'll hear evidence or you'll hear testimony from
Commander Masi who is the lead supply officer at Navy Coastal Warfare
Group ONE, he was Lieutenant Commander Penland's boss. And he's going
to tell you that there was no business--Navy Coastal Warfare Group ONE
had no business with USS MOBILE BAY; they had no business with any
gray hull. So there should be no reason why Lieutenant Commander
Penland was calling the USS MOBILE BAY.
Further, those phone records are going to show multiple
phone calls to the quarterdeck of USS PRINCETON. When I say
"multiple," I say hundreds--or I should say over 40. And those phone
calls again Commander Masi will say there's no reason why Lieutenant
Commander Penland should be calling the quarterdeck of USS PRINCETON,
but, as we know or as I've told you and as you'll find out, that's
where Lieutenant JG Mark Wiggan was working.
Now, these phone calls and e-mails persisted up until
December time frame, end of December.
Now, in mid December NC1 Lewis-Wiggan will tell you that
she was using her husband's laptop computer when she came across 52
photos, digital photos that were stored on the hard drive and these
photos were of a graphic sexual nature, at least most of them, and she
quickly, by looking at the photos, could recognize both Lieutenant
Commander Penland in some of the photos and her husband in others.
She's going to tell you without--and I will show her these photos and
369
she's going to be able to tell you, yes, that's the back of my
husband's head, yes, that's my husband's arm, no question. And in
other photos you're going to see clearly that it's Lieutenant
Commander Penland's face.
Now, confronted with these photos and given the prior
history, it was by this time that NC1 Lewis-Wiggan had had enough.
She wanted the calls to stop, she wanted to be divorced from her
husband and so that's what she set out to do.
An MPO was issued by Navy Coastal Warfare Group ONE
instructing Lieutenant Commander Penland to stop calling. No calls
were made during the period of the MPO. The MPO expired on 19
January.
But then we came to the week of the 19th of February. On
the 21st of February NC1 Lewis-Wiggan was on the phone with her aunt,
it was about 9:00 o'clock at night when a call waiting--or the phone
beeped for call waiting. NC1 Lewis-Wiggan will tell you that she
thought it was her mother calling, the sister of her aunt, so she took
the call. But she'll tell you it wasn't her mother. It was, in fact,
Lieutenant Commander Penland, the accused in this case, calling her,
saying words to the effect of "What are you trying to do to me? I'm
your friend." It was at that point that NC1 Lewis-Wiggan hung up the
phone, that she was very upset. The next day she told her chain of
command about that call. The chain of command called Navy Coastal
Warfare Group ONE.
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Two days later, on Friday, the 23rd of February, Captain
Sturges, who will come here and testify, calls Lieutenant Commander
Penland in and he tells her "We've got a report from USS MOBILE BAY.
Do not call NC1 Lewis-Wiggan again." It's at that moment that the
accused blurts out "I never called NC1 Lewis-Wiggan." Now, you're
going to hear testimony from Lieutenant Commander McCarthy, who was
the JAG present at that meeting, that that's what took place and also
Commander Masi was also there. Three people will support what was
said. Further, the Government is going to present to you phone
records taken from Lieutenant Commander Penland's private cell phone
that show an incoming phone call to NC1 Lewis-Wiggan's phone on 9:00
p.m. on the Friday, the 23rd--or excuse me--Wednesday, the 21st of
February.
Now, at the same time, on Thursday, the 22nd, there was
another incident. Lieutenant Commander Tom Moninger, who at the time
was the XO of USS PRINCETON, will tell you that the ship got a visitor
on that day; it was the accused. She had come to see Lieutenant JG
Wiggan and she was very upset. She was accusing Lieutenant JG Wiggan
of stealing $30,000 worth of her jewelry. Now, initially she came on
board the ship, spoke to Lieutenant Wiggan, but then she returned
demanding to speak to the CHENG. The CHENG, Lieutenant Commander
Murphy, came and spoke to her, but that wasn't enough. She wanted to
speak to the CO or XO and she said "I will not leave this ship until I
speak to the CO or the XO." She waited in the wardroom.
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Lieutenant Commander Moninger will tell you that after some
time he finally made his way down to the wardroom, they were in the
middle of a mast proceeding, and he talked with her and she demanded
that the command do something to return her jewelry. Lieutenant
Commander Moninger will tell you how he handled the situation as best
he could, said, "Look, this is your personal business. Don't bring it
here to the ship." He's going to tell you that he thought her
behavior was very odd and that she was utilizing her rank to try to
achieve a personal end.
In the end, the day later after leaving the ship,
Lieutenant Commander Moninger receives an e-mail from the accused
saying "I'm sorry. I found my jewelry. Sorry to put you through what
I did." You'll see that e-mail; it will be brought into evidence.
So you see there's lots of bits and pieces here, but
overall there's a pattern. It's a pattern of someone who used sex,
lies, manipulation to achieve personal goals. When you put all the
pieces of the puzzle together at the end of this trial, you're going
to have a very clear picture of the misconduct that has been
committed, and I'd expect you to return the only just verdict in this
case which is guilty to all charges and specifications. Thank you.
MJ: Captain Callahan, do you desire to present opening
statement now or reserve it to the close of the prosecution's case?
IMC: Defense requests to make an opening statement now, Your
Honor.
MJ: You may so do.
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IMC: Thank you.
Good afternoon, ladies and gentlemen. Hell hath no fury
like a woman scorned, and that is what the Government's case rests
upon, a scorned woman, and not just a scorned woman, but a scorned
wife. The evidence will show that Chief Wiggan, who was married to
Lieutenant Wiggan, and her husband had already physically separated,
were no longer living together as husband and wife before these
allegations came up.
Several months after the physical separation, Chief Wiggan
decided that she did not want to get divorced, she wanted their
marriage to continue and she contacted her husband and she worked hard
to try to get her husband to come back to her, so they could relive
together as husband and wife, so they could continue with the
marriage. And he rebuffed these suggestions, said no, he was through
with her, their marriage was done. And, ladies and gentlemen, that
upset her. She wanted her husband back and he was saying "No, I don't
want you."
And the evidence will show that she then set out to destroy
her husband. Unfortunately for Lieutenant Commander Penland she
became caught up in this. Chief Wiggan decided that she was going to
ruin her husband's professional career and she placed the blame for
her failed marriage at Lieutenant Commander Penland in an effort to
get back at Lieutenant Commander Penland for what she saw as
destroying the marriage and because she felt that her husband had
something special with Lieutenant Commander Penland.
373
Also to get back at her husband, she set out to destroy
Lieutenant Commander Penland as well. She made allegations of
adultery to Lieutenant Wiggan, her husband's command. He denied them.
He will come in here and he will testify today before you
that he did not have an affair with Lieutenant Commander Penland. He
will come in here and he will testify that Lieutenant Commander
Penland was a friend of his, but nothing sexual occurred between them
and it was no different than a friendship you would have with any
other officer on board a ship. They were on board a smaller ship
together. They had somewhat of a mentor/mentee relationship together.
They would sometimes go out and do things together, but the same as he
did with other male officers. There was nothing sexual going on
between the two of them.
He will also come in here and testify that his wife alters
e-mails and that she is not, in his opinion, an honest person. So
this woman, this scorned woman who set out to destroy him, made these
allegations.
But not only is this case about Chief Wiggan, but it's also
about Lieutenant Commander Penland's command and a stark difference
between what happened with her and what happened with Lieutenant JG
Wiggan. Lieutenant JG Wiggan is coming in here and he's testifying
today. He has not been charged, he's not been NJP'd, he's not been
sent to a BOI.
On the other hand, we have Lieutenant Commander Penland.
Lieutenant Commander Penland checked into Naval Coastal Warfare Group
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ONE as a supply officer. Shortly after checking on board, she began
to notice irregularities within the Supply Department. She began
poking and prodding at these and she uncovered supply illegalities,
illegal contracting procedures dealing with multimillion dollar
contracts. She began to raise these concerns to her department head,
Commander Masi. Commander Masi was a reservist. There's already some
friction between the two of them. He wanted to be the supply officer,
but he was not, even though he was the department head, he was the
logistics officer. He did not have the authority to sign off as the
SUPO on a lot of things he wanted to sign off on. So there had been a
little bit of bad blood before. But once she started bringing to
light some of these illegal contracts, you know, he started having
even more problems with her. He's coming in to testify today.
Also coming in to testify against her from her command is
another officer with an axe to grind against her, Captain Sturges, the
former commanding officer of Naval Coastal Warfare Group ONE.
Ladies and gentlemen, the evidence will show that
Lieutenant Commander Penland has made multiple IG complaints against
these two officers, multiple complaints outside of Naval Coastal
Warfare Group ONE to NECC, the parent command, to Naval Coastal
Warfare Group TWO, one of the other sister commands dealing with these
illegal supply contracts, and that upset Commander Masi and that upset
Captain Sturges.
In addition to the IG complaints, the evidence will also
show that she's raised equal opportunity complaints against both of
375
these officers.
So, ladies and gentlemen, at the end of the day what the
Government is bringing in as evidence at a general court-martial
before this Naval officer with over 18 years of honorable service is
the testimony of a scorned wife, even though the husband refutes those
allegations, and the testimony of a couple officers from her command
that she's raised IG complaints against and equal opportunity
complaints against. Regardless of whether or not any of these
complaints are true or not is really irrelevant. These officers
personally dislike Lieutenant Commander Penland because of these
allegations. They have a personal interest and a stake in seeing her
discredited, and their testimony reflects that.
Ladies and gentlemen, the Defense is confident that at the
end of the day you will see this case for what it is. It is nothing
but baseless allegations of biased individuals against this fine
officer, and you will render the only proper verdict at this general
court-martial which is not guilty of all charges and specifications.
Thank you.
MJ: Thank you, counsel, for your opening statements.
Is the prosecution prepared to proceed with evidence on the
merits of this case?
TC: We are, sir.
MJ: Please do so.
TC: At this time the Government would call PS1 Crawford to the
stand.
376
MJ: Bailiff, if you would please call PS1 Crawford on behalf of
the court.
[The bailiff retrieved the witness.]
PERSONNEL SPECIALIST FIRST CLASS JEFFREY CRAWFORD, U.S. Navy, was
called as a witness for the prosecution, was sworn, and testified as
follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. For the record, could you please state your name, spelling
your last.
A. PS1 Jeffrey Crawford, C-R-A-W-F-O-R-D.
Q. Petty Officer Crawford, what is your current duty station?
A. PSD, Naval Station San Diego.
Q. And could you please briefly describe for the members your
duties.
A. My daily duties consist basically of tracking military
personnel's records, pay records, and updating, as needed.
Q. Now, do you know Lieutenant Commander Penland, the accused
in this case?
A. No, sir, I don't.
Q. Did you have the opportunity to review her records in
preparation for trial today?
A. Yes, sir, I did.
377
Q. And what did those records tell you?
A. It stated her date of enlistment. It also stated because
she was prior enlisted when she converted to officer.
Q. Okay. What was her commission date?
A. I don't have that document in front of me, sir.
Q. Would it help if--do you--would it help if I refreshed your
recollection?
A. Yes, sir.
TC: May I approach the witness, sir?
MJ: You may.
TC: I'm showing opposing counsel what is the LOPR printout for
Lieutenant Commander Penland.
MJ: Do you desire to have that marked as an exhibit, Counselor?
TC: Yes, sir. I'd have this marked as the next appellate
exhibit in order.
MJ: Very well.
[The court reporter marked the document as AE XXXVIII.]
Q. PS1, I am handing you what is the LOPR for Lieutenant
Commander Penland [handing AE XXXVIII to the witness]. Take a moment
to read it through. When you're done looking through it, just please
look up at me and I will retrieve the exhibit.
A. [Reviewing AE XXXVIII.]
TC: I'm retrieving what has been marked as Appellate Exhibit
XXXVIII.
MJ: Very well.
378
Q. Do you--what date was Lieutenant Commander Penland
commissioned?
A. August 1st of '97.
Q. And has she been on active duty continuously since that
time?
A. Yes, sir, she has.
Q. So the allegations in this case extend from September 2006
to roughly March of 2007. Was she on active duty during that time
based on your reading of the LOPR?
A. Yes, sir, she was.
Q. And she's still on active duty as of today, is that
correct?
A. Yes, sir.
TC: Thank you, PS1. I have no further questions.
MJ: Captain Callahan, questions for the witness?
IMC: No. Thank you, Your Honor.
EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q. PS1, can you explain what the "LOPR" is.
A. LOPG, basically it's a link to DFAS. It tracks all pay
issues and other military issues with every service member, enlisted
and officer, sir.
Q. Is it LOPT?
A. LOPG.
379
MJ: Oh, G.
Follow-on questions in light of those, Commander Messer?
TC: No, sir.
MJ: Captain Callahan?
IMC: No. Thank you, Your Honor.
MJ: Questions from our members? Negative response from all
panel members.
[The witness was permanently excused and withdrew from the courtroom.]
TC: Sir, at this time the Government would call SKC Zogaib,
Chief Zogaib to the stand.
MJ: Very well. Bailiff, if you would please call Chief Zogaib.
[The bailiff retrieved the witness.]
STOREKEEPER CHIEF STACY L. ZOGAIB, U.S. Navy, was called as a witness
for the prosecution, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. For the record could you please state your full name,
spelling your last.
A. SKC Stacy Lynn Zogaib, and it's Z-O-G-A-I-B.
Q. And what's your current duty station?
A. MESG Group ONE.
Q. And what is your primary duties? Tell the members what
your primary duties are.
A. I'm the Supply Department leading chief petty officer, the
LCPO for N4.
380
Q. And is one of your responsibilities at the command dealing
with phone records?
A. Yes, sir.
Q. Can you please explain for the members exactly what your
responsibilities are pertaining to those records.
A. I certify the bill for payment. I verify that--I review
the bill for many things, but review the bill and make sure it's
accurate and I certify it for payment.
Q. And as part of the bills you receive, do you also receive
the records themselves?
A. I can. You get the--yes. It's a master listing of all
phone numbers, the minutes, cost incurred, any texting, things like
that. And then if you need to, you can drill down for more
information.
Q. What is the name of the phone provider that the command
uses?
A. Verizon.
Q. And approximately how many phones does the command use?
A. A little over 200.
Q. And are all those mobile phones?
A. And 12 Blackberries, uh-huh.
Q. And so does everyone at Navy Coastal Warfare Group ONE
receive a government issued phone?
A. Not everyone, but we are a staff command, so the majority
of personnel have phones.
381
Q. And to your knowledge, did the accused in this case,
Lieutenant Commander Penland, receive a phone?
A. Yes.
Q. And was that for the entire time she was stationed at the
command?
A. Yes, sir. When she took over as SUPO, she would have
taken, I believe, a SUPO cell phone.
TC: May I approach, sir?
MJ: You may.
TC: At this time I am retrieving what has been marked for
identification as Prosecution Exhibit 3 for identification. I'm
showing it to opposing counsel [showing PE 3 for ID to Defense].
I am handing to the witness what has been marked
Prosecution Exhibit 3 for identification [handing PE for ID to the
witness].
Q. Chief, if you could, do you recognize that?
A. [Reviewing PE 3 for ID.] Yes, sir.
Q. What is that?
A. It's the drill down report of our phone bill.
Q. When you say "drill down report," what do you mean?
A. The master--the master bill lists every single command cell
phone at the unit, and this is a drill down for a specific phone
number.
Q. And what phone number are those records for?
A. (619) 921-5073.
382
Q. And do you know who that phone number belongs to?
A. Lieutenant Commander Penland.
Q. And just for the record, could you please--do you see
Lieutenant Commander Penland here in the courtroom today?
A. Yes, sir.
Q. Could you please identify her.
A. She's the defendant [pointing to the accused].
TC: Let the record reflect that the witness has identified
Lieutenant Commander Penland as being present in the courtroom.
MJ: Very well.
Q. Chief, what period are those records for?
A. It's from the--September 23rd, 2006 through February 23rd,
2007.
Q. And given your experience with the records, does that look
like an accurate depiction of what a record would normally look like?
A. Yes, sir.
Q. Does it look in any way that that record's been tampered
with?
A. No, sir. It comes directly from Verizon.
MJ: Sir, may I approach?
MJ: You may.
TC: I'm retrieving Prosecution Exhibit 3 from the witness.
At this time I'd ask that Prosecution Exhibit 3 for
identification be entered into evidence and the words "for
identification" be deleted.
383
MJ: Objection from the Defense?
IMC: Yes, sir. Objection to authenticity. She's not the
custodian of these records; Verizon is.
MJ: Lieutenant Commander Messer?
TC: Sir, under 902, Section 11, this is--we've attached to
these records a certificate of authentication and these self-
authenticating records.
MJ: Captain Callahan, have you had an opportunity to review the
certificate?
IMC: If I may have a moment, Your Honor.
MJ: Certainly.
IMC: [Reviewing PE 3 for ID.] Withdraw the objection, sir.
MJ: Very well. Any other objection to the admission of
Prosecution Exhibit 3 for identification?
IMC: No, sir.
MJ: There being no further objection, Prosecution Exhibit 3 for
identification is now admitted into evidence. The words "for
identification" will be stricken, and you may publish copies of the
exhibit to the members as you desire.
TC: Aye, sir. Thank you.
I'm be returning the exhibit to the court reporter at this
time.
MJ: Very well.
384
Q. Just a few follow-up questions, Chief. To your knowledge,
was the phone number that was in the records assigned to anyone else
other than Lieutenant Commander Penland during that time period?
A. No, sir.
TC: Thank you. I have no further questions.
MJ: Captain Callahan?
IMC: Briefly, sir. Thank you.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good afternoon, Chief.
A. Aye, sir.
Q. Chief, I see these phone calls appear to have been printed
out off of an Internet----
A. Yes, sir.
Q. ----account based on the bottom. Did you print them out?
A. We--yes, you can.
Q. But the ones that were actually brought here in court have
been printed out. Are these ones that you printed out or are these
ones that you were sent from Verizon?
A. They would have been printed out, I believe.
Q. So were you the one that printed them out?
A. Yes. I'm sorry I hesitate because I was requested to
provide them and so they were provided.
Q. Did Commander Marshall also print any of these out?
A. I can't recall with accuracy.
385
Q. After you printed these out, did you send these to Verizon
to verify them?
A. No, sir.
IMC: Thank you. No further questions.
MJ: Lieutenant Commander Messer?
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. Chief, just to clarify, is your understanding that the--
please tell for the members how these records were procured for this
court-martial.
A. I was requested--I requested them from Verizon and they
were sent directly to Legal--or they were sent to me, but we funded
the document, paid for them, and they were provided.
TC: Sir, may I approach and retrieve Prosecution Exhibit 3?
WIT: I'm sorry.
MJ: You may.
WIT: It's been a while.
Q. If you could, I'm showing you Prosecution Exhibit 3
[handing PE 3 to the witness], especially--specifically the
certificate of authenticity there. Is there any question in your mind
that that certificate of authenticity has been forged or corrupted in
any way?
A. No, sir.
386
Q. And is there any question in your mind that those records
before you there are accurate records that accurately reflect the use
of that phone during that period?
A. They're accurate records, sir.
TC: Thank you. I have no further questions. I'm approaching
to retrieve the Exhibit 3.
MJ: Very well.
TC: Returning it to the court reporter.
MJ: Captain Callahan, anything further for this witness?
IMC: Please, Your Honor.
MJ: You may.
RECROSS-EXAMINATION
Questions by the individual military counsel:
Q. Chief, that affidavit states that it came along with
records enclosed that are true and accurate copies of the records
maintained by Verizon. Did you receive this affidavit?
A. No, sir. I request--no, sir, I did not.
Q. And you printed the cell phone records out separate from
the affidavit, correct?
A. Yes, sir.
IMC: Thank you. No further questions.
TC: Nothing further from the Government, sir.
MJ: Questions from our members? Negative response from all
panel members.
387
[The witness was duly warned, temporarily excused, and withdrew from
the courtroom.]
TC: Sir, at this time the Government calls Mr. Brian Duffy to
the stand.
MJ: Very well. Bailiff, if you would please call the witness
on behalf of the court.
[The bailiff retrieved the witness.]
BRIAN DUFFY, civilian, was called as a witness for the prosecution,
was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Mr. Duffy, for the record, could you please state your full
name, spelling your last.
A. Brian, B-R-I-A-N, Duffy, D-U-F-F-Y.
Q. And, Mr. Duffy, where are you currently employed?
A. I'm employed here at the Region Legal Service Office in the
prosecution section as the trial paralegal.
Q. And who do you work for?
A. I work for you, sir.
Q. And what--could you please explain to the members what your
duties are.
A. They are various and sundry, but amongst them is being
instrumental in the processing of subpoenas, arranging to draft a
subpoena up, send it out and then receive the records back in response
to the subpoena.
388
Q. Were there any subpoenas for phone records issued in this
case?
A. Yes. There was----
Q. What subpoenas?
A. First there was a subpoena to Cox Communications for phone
number (619) 271-7954.
Q. And what number was that?
A. That was Commander Penland's home phone I was told.
Q. And did you get a response to that subpoena that was issued
by the office?
A. I did.
Q. What response did you get?
A. It covered the time period that we asked for.
Q. Which was?
A. 22 December '06 to 27 March '07.
Q. Why were records before that time not requested, given the
allegations in this case, do you know?
IMC: Objection. Relevance.
MJ: Commander Messer?
TC: Well, sir, the allegations before the court are beginning
in September the adultery is alleged to have been charged--or alleged
to have began in September of '06. The phone records were not
obtained until--or for the period starting in December. I think it's
a relative question or relevant question.
389
IMC: Sir, he's asking his own witness to testify as to why he
didn't subpoena--his own witness that works for him as to why he, as
the trial counsel, didn't subpoena these additional evidence. It's
not relevant to--it makes no fact in question more or less likely to
have occurred, Your Honor.
MJ: Sustained. Ask a different question if you'd like.
Q. Were there any home phone records in existence before that
time?
A. I'm not entirely sure, but I think that's when that phone
number was active.
TC: Sir, request permission to approach.
MJ: You may.
TC: I am retrieving what has been marked as Prosecution
Exhibit 5 for identification. I'm showing Prosecution Exhibit 5 for
identification to the defense counsel [showing PE 5 for ID to
Defense].
I am handing Prosecution Exhibit 5 for identification to
the witness [handing PE 5 for ID to the witness].
Q. Mr. Duffy, do you recognize that?
A. [Reviewing PE 5 for ID.] Yes, sir, I do.
Q. What is that?
A. This is the response to the subpoena that I referred to
earlier.
390
Q. And what does that document contain?
A. It contains records of calls made from Commander Penland's
home phone number.
Q. And do you--is that document in the same condition and
accuracy as it was when you received it from Cox Communications?
A. May I have one moment?
Q. Yes.
A. [Examining PE 5 for ID.] Yes, it is.
Q. And if you could please look on the second to last page of
the document and then please explain for the members what that is.
A. It's a certification statement from the subpoena people at
Cox Communications who----
Q. And what's the purpose of that certificate?
A. It's their authorization that the documents here are actual
records of theirs.
Q. And you're confident here today that the documents that
you're looking at before you are the very same documents you received
from Cox----
A. Yes, I am.
Q. ----in response to the subpoena?
A. Yes, I am.
TC: Sir, at this time I'd ask that Prosecution Exhibit 5 for
identification be entered into evidence and the words "for
identification" be deleted.
MJ: Objection from the Defense?
391
IMC: No, Your Honor.
Q. Now, Mr. Duffy, I want to talk to you a little bit----
MJ: One minute, Counselor.
Prosecution Exhibit 5 will be received into evidence. The
words "for identification" will be stricken, and you may publish the
exhibit at an appropriate time.
TC: Thank you, sir.
Q. Mr. Duffy, after receiving these records, did you go
through them and review them?
A. I did. I went through there looking for matches to the
USS PRINCETON's phone number.
Q. How did you know that phone number?
A. I think I got it off of the roster.
Q. And what exact phone number to the USS PRINCETON was it?
Was it to a specific location?
A. It was to 556-3905, I think it is.
Q. Which correlates to what?
A. That's the PRINCETON's. Where on the PRINCETON I don't--I
can't say for sure. Maybe their quarterdeck or something; I don't
know.
Q. And after reviewing these phone records, how many calls did
you find from Lieutenant Commander Penland's home phone number to the
USS PRINCETON?
A. One hundred and forty.
392
Q. And that was over what period?
A. That was from 22 December to 27 March.
Q. Did you look for any other phone calls during that period?
A. I did. I found three phone calls, I believe it was, to the
USS MOBILE BAY.
Q. And what number were those phone calls to?
A. May I review that number? I don't recall that number.
Q. Yes. [Handing PE 5 to the witness.]
A. [Reviewing PE 5.] I believe it's this highlighted number
here that I highlighted, (619) 556-4512.
Q. And do you know what number that correlated to on board
USS MOBILE BAY?
A. No, I do not.
Q. But you're certain it was to the ship?
A. I'm certain it was to the MOBILE BAY.
TC: Thank you. I'm retrieving Prosecution Exhibit 5 from the
witness, sir. I'm handing it to the court reporter.
MJ: Very well.
TC: And I'm retrieving Prosecution Exhibit 18 for
identification from the court reporter. And I'm showing it to
opposing counsel [showing PE 18 for ID to Defense].
I'm handing what has been marked as Prosecution Exhibit 18
for identification to the witness [handing PE 18 for ID to the
witness].
393
Q. Mr. Duffy, what is that?
A. [Reviewing PE 18 for ID.] This is a response to a subpoena
from Sprint Communications.
Q. And what was the subpoena requesting in this instance?
A. It was a different phone number. This time the phone
number was (619) 862-1559.
Q. And to your knowledge, whose phone number was that?
A. I believe that was a cell phone of Commander Penland.
Q. Do you know, was that an official cell phone or a private
cell phone?
A. There was--she had numerous phones, I believe, and the
official phone was one of them, but if this is the official one I
can't say for absolute certainty.
Q. Okay. And does that document before you look as it looked
when you received it from Sprint in response to the subpoena?
A. [Examining PE 18 for ID.] Yes.
Q. Is there any account information with that document?
A. Account information as to which phone number it pertains
to?
Q. As to who owns the phone.
A. Yes. Oh, it says "Customer: Syneeda Penland."
Q. So given that data, do you have an opinion as to whether it
was a personal cell phone or an official cell phone?
A. I would surmise that this is her personal one.
394
Q. And you've testified that those records you received are in
response to a subpoena. I'd like you to look on the first page there.
What is that?
A. This--as in the previous documents, this is a certification
from the subpoena response people at Sprint certifying that these
records are what they purport to be.
Q. And based on your knowledge of having received those
documents from Sprint, are those documents the same documents that you
received at the time the subpoena was answered?
A. Yes.
TC: Sir, at this time I would request that Prosecution Exhibit
18 for identification be entered into evidence and the words "for
identification" be deleted.
MJ: Objection from the Defense?
IMC: No, Your Honor.
MJ: There being no objection, Prosecution Exhibit 18 is now
admitted into evidence and the words "for identification" will be
stricken by the court reporter. You may publish the document at an
appropriate time.
TC: Thank you, sir.
Q. Now, Mr. Duffy, did you review that document after it was
received from Sprint?
A. I did.
395
Q. What, if anything, did you find interesting in your
investigation?
A. I found four calls on the 21st of February to--well, at
9:11 p.m. and 9:12 p.m. all to the same phone number.
Q. What phone number was that?
A. I had information that that was--well, the phone number was
(951) 313-4941, and I was provided information that that was the cell
phone of NC1 Wiggan.
Q. NC1 Lewis-Wiggan?
A. Yes.
TC: Thank you, Mr. Duffy. I have no further questions.
I'm retrieving Prosecution Exhibit 18 from the witness and
returning it to the court reporter.
Sir, I'm sorry. I neglected to ask one thing. If I reopen
my direct?
MJ: You may.
Q. One more issue, Mr. Duffy. I'm sorry. It escaped me.
In addition to the phone records, did you investigate
anything else in this case?
A. Yes, I did.
Q. What did you investigate?
A. I went to the Family Court in San Diego to determine the
marital status of the Wiggans.
Q. And when did you do that?
A. Yesterday.
396
Q. And what did you find out?
A. That there is no final divorce decree in the file.
Q. What was in the file?
A. There was an agreement to bifurcate the trial, that is, to
split the issue of the divorce and let that go forward without any
further arguing about it and split the issue off from the arguments
over dividing up property.
Q. So, according to your investigation, the Wiggans are still
married as of now?
A. Yes. I confirmed that with the clerk who gave me the file.
TC: Thank you, Mr. Duffy. I have no further questions.
MJ: Captain Callahan?
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Mr. Duffy, are you familiar with the bifurcation process of
divorce proceedings in California?
A. No. That's why I asked the clerk to confirm it.
Q. Are you familiar with a proceeding by which a divorce
decree is finalized, however, the case maintains with the court
because the court is still dividing the property?
A. That's, I believe, what we're talking about here.
Q. Correct. That's a bifurcation.
Are you familiar with the practice in the State of
California in the instance were two couples [sic] are married dealing
with real estate where the case is bifurcated, the court divorces
397
them, they are officially divorced, but until the real estate is sold,
the case remains open in the courthouse because the court still has to
distribute the assets or distribute the liability from the sale of
that real estate?
A. That's not what the personnel at the court told me.
Q. Are you familiar with that process, yes or no?
A. No. No, I don't----
Q. You're not familiar with that process?
A. I don't do California law.
Q. And you are certain that you were told by the court that
they are still legally married?
A. I am certain that they said that there is no final divorce
decree in there.
Q. And who is "they"?
A. Oh, the people--the Family Superior Court on Sixth Avenue.
Q. But you personally have no personal knowledge to whether or
not the divorce decree has been issued by a court in this case, do
you?
A. I personally know that it's not in the file because I
looked for a document by that name. I have experience with legal
documents just reading them generally.
Q. So you are certain that they are still legally married?
A. I'm certain there's no final divorce decree in the file.
IMC: Thank you.
MJ: Commander Messer?
398
TC: No follow up, sir.
MJ: Questions from our witness--for our witness from the
members? Negative response from all panel members.
[The witness was duly warned, temporarily excused and withdrew from
the courtroom.]
MJ: Further evidence from the prosecution on the merits of this
case?
TC: Sir, at this time the Government would ask for a brief
recess in place so that--a brief five-minute recess, sir.
MJ: Well, it might be an appropriate time to take a recess,
nonetheless. Members, if you would please cover your notes.
BAILIFF: All rise.
[All persons did as directed.]
MJ: Subject to my standard instructions, you may depart on a
recess. Please reassemble at 1500 hours. Court stands in recess.
The members may depart at this time.
[The members withdrew from the courtroom.]
MJ: Court stands in recess. Carry on, please.
[The court-martial recessed at 1449 hours, 21 May 2008.]
[The court-martial was called to order at 1504 hours, 21 May 2008.]
MJ: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
399
MJ: Court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Further evidence from the prosecution on the merits of its
case?
TC: Yes, sir. At this time the Government would call Commander
Doud to the stand.
MJ: Very well. Bailiff, please call Commander Doud on behalf
of the court.
[The bailiff retrieved the witness.]
COMMANDER BRENDON X. DOUD, U.S. Naval Reserve, was called as a witness
for the prosecution, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Commander, for the record, could you please state your full
name, spelling your last.
A. Yes. It's Commander Brendon Xavier Doud. Last name is
D-O-U-D.
Q. Commander Doud, where are you currently stationed?
A. Currently at MESG ONE, Maritime Expeditionary Security
Group ONE.
400
Q. And you're currently on active duty?
A. No, I'm not actually.
Q. What is your status?
A. I'm active Reservist.
Q. How long have you been in the Navy?
A. Twenty-two plus years.
Q. Would you briefly tell the members a little bit about your
career.
A. Sure. My commissioning source was the Naval Academy, class
of 1985. I did eight and a half active, mostly in the operations
world, surface warfare by trade, DCA COMO, and so eight and a half
active and done a number of recalls and mobilizations, support active,
a number of tours at Third Fleet, served as the security officer at
Naval Station and worked in the Force Protection Directorate and OPS
and planning world at Third Fleet, as well.
Q. Commander, how long have you been at Navy Coastal Warfare
Group ONE?
A. Since June of 2006.
Q. Do you know the accused in this case, Lieutenant Commander
Penland?
A. I do.
Q. How do you know her?
A. As an acquaintance obviously at work, through a work
relationship I was familiar with her at MESG ONE, Naval Coastal
Warfare Group ONE.
401
Q. Were you ever assigned as an investigator while attached to
Navy Coastal Warfare Group ONE?
A. I was.
Q. And for what matter were you assigned as an investigator?
A. I was assigned----
IMC: Objection. Relevance.
MJ: Lieutenant Commander Messer?
TC: Sir, this is directly relevant to the testimony. He's
going to testify about his--the results of his investigation into
Lieutenant Commander Penland's case. I'm just establishing the
foundation.
IMC: The results of his investigation are irrelevant, sir, at
this court-martial. The prosecution has the opportunity to present
the evidence. The members will determine their own determination as
to whether my client is guilty or innocent.
TC: Sir, I haven't asked the witness the question what were the
results of his investigation. I'm going to ask him about what he
discovered in the course of his investigation, who he talked to, what
types of evidence he uncovered, things of that nature.
MJ: How would that not be hearsay?
TC: Well, sir, he's not talking about out-of-court statements.
He's going to talk about people, things, giving overviews to the
members as far as what he did in the course of his investigation. I
would like a chance to go forward with this witness and then we can
address any hearsay that comes up at the time.
402
MJ: Members, please cover your notes. Subject to my standard
instructions, if you would depart the courtroom for a brief recess
while I address this matter with counsel.
BAILIFF: All rise.
[All persons did as directed.]
MJ: The members may depart.
[The members withdrew from the courtroom.]
[The court-martial recessed at 1508 hours, 21 May 2008.]
[END OF PAGE]
403
[The Article 39(a) session was called to order at 1508 hours, 21 May
2008.]
MJ: Please be seated.
[All persons did as directed.]
MJ: The 39(a) session is called to order.
Let the record reflect the members have departed from the
courtroom.
Okay. What specific areas do you intend to pursue,
Commander Messer of this particular witness?
TC: How did he carry out his investigation, what steps did he
go through, who did he talk to, who did he identify as witnesses, did
he find those witnesses credible, what evidence did he collect,
photographs, how did he obtain those photos, chain of custody of these
documents. These documents are all going to be entered into court at
a later time. It's important for the members to know how they were
uncovered or who they were received from.
Also we're going to talk about phone records and how he
used those in his investigation and he created a spreadsheet along
with Lieutenant Commander Marshall based on those phone records that
have already been entered into evidence. I intend to submit that into
evidence under M.R.E. 1006 and have him talk about that with the
members.
MJ: Captain Callahan, do you have any objections to the
proffered testimony?
404
IMC: Yes, sir. First of all, objection to his testimony dealing
with the credibility of the witnesses he spoke with, whether or not he
found them credible; that's again for the members to find.
If he's laying the foundation for the chain of custody of
any documents, obviously that would be appropriate.
I certainly object to this demonstrative aid thing that's
been put together. We're certainly not talking about a summary of
voluminous records here put together by the investigating officer and
by the SJA. Again, this is something the members are able to look
through here on their own. It's certainly something the Government
could feel free to put together as a demonstrative aid to use in their
closing but not the type of thing to admit into evidence.
TC: Sir, I obviously disagree with the last part on--or with
the phone records. That's exactly why 106--1006 exists, so that a
witness can organize--if there--if these phone records aren't a
voluminous record, I don't know what would be.
MJ: The actual phone records, though, have already been
admitted, have they not, as prosecution exhibits?
TC: That's correct, sir. These--this--this proffered exhibit,
which has been marked as, I believe, 4, Prosecution Exhibit 4 for
identification, is a summary of Prosecution Exhibit 3. What it is--
what it is is a--proffered it's organizing the phone numbers by type
of the number dialed so that the members can clearly see how many
numbers were dialed to USS PRINCETON, how many numbers were dialed to
USS MOBILE BAY, how many numbers were dialed directly to Lieutenant JG
405
Wiggan's personal phone. All that's being done is reordering the
numbers so that the members don't have to go through themselves in the
deliberation room with a highlighter and highlight every number.
MJ: Captain Callahan?
IMC: And again, sir, it's not proper to be admitted into
evidence. That's something he can use in argument, that he can
present in argument. But this isn't something that's proper to give
to the members and to admit into evidence. We're not talking about
something so large that it cannot be conveniently examined in court
such as what they're talking about. I mean, I'm holding them right
here in my hand. We've got a relatively small stack. Certainly the
members can look through this. Commander Messer is certainly free to
present anything like that as part of his closing argument on arguing
on it, but to admit that as evidence to the court is not proper, Your
Honor.
MJ: The Court agrees. Also with regard to the credibility of
witnesses, that certainly is not a pertinent matter at this point for
this witness to offer testimony. There has been no credibility attack
on the witnesses and his personal opinion as to their credibility
would not be relevant at this point. The determination of that
credibility rests with the members.
As far as I can tell, the only thing I see that would be
properly brought forth by this member would be--by this witness would
be the foundation for any photographs.
406
TC: Sir, at this time then, if that's the--is that your ruling?
So you're ruling that this exhibit----
MJ: Well, you've offered me three possible areas of testimony.
One is concerning the spreadsheet which has already been--the basis
for which has already been admitted as separate exhibits.
TC: And just to clarify, for Prosecution Exhibit 4 for
identification why exactly is that not being allowed into evidence,
what is--what grounds?
MJ: Well, at this point it's hearsay. It's how he had
manipulated the information. I mean, the information's already been
submitted to the members.
TC: Right. But----
MJ: You're essentially trying to use that as a demonstrative
aid, I believe.
TC: He's exactly right. And that's exactly why the rule
exists, sir. The----
MJ: Well, demonstrative aids don't go to the members as
exhibits.
TC: Well, how is it hearsay, sir, if the material has already
come in under business record exception?
MJ: Because the materials themselves are the original records.
In this case this is something that's been prepared out of court by
this particular witness in terms of his use of the data and his
manipulation of it.
407
TC: Right. The witness will testify, as a proffer, that he
hasn't changed the data in any way other than the order in which it
was in the phone bill.
MJ: And how is that helpful to the members? They have the
phone bill there and they have the numbers they can match up
themselves.
TC: I would also like to have this witness testify to his--he
reviewed the phone bill and he found a certain number of phone calls
to different numbers. If I can't use my demonstrative aid, I'll still
have him testify that, in the course of his investigation, he reviewed
the phone bills, he went through with a marker and he counted so many
calls to USS PRINCETON, so many calls to USS MOBILE BAY.
MJ: We've already had that testimony from other witnesses.
Would it not be cumulative or is it something distinct from the
testimony we've already received?
TC: Sir, I believe the military judge is confused. The
testimony that we heard was to the home phone records which are
Prosecution Exhibit 5 and to the private cell phone records which is
Prosecution Exhibit 18. This would be describing Prosecution
Exhibit 3 and which there has been no testimony received as to what
that prosecution exhibit held.
MJ: Well, any confusion I think at this point is because you
have not clarified as to which record you'd like him to testify to.
TC: Well, then I will be clear to the Court, sir. The
Prosecution Exhibit 3 which has been entered into evidence,
408
Prosecution Exhibit 4 for identification is a summary of that
prosecution exhibit that lays out what calls were made to who and how
many. If the Court will not allow me to present this as an exhibit,
in the alternative I would still like to call the witness to testify
to the number of calls made to the different phone numbers which are
in Prosecution Exhibit 3.
MJ: And Prosecution Exhibit 3 was the government cell phone?
TC: That's correct, sir.
MJ: Captain Callahan?
IMC: Sir, I have no objection based on that proffer. Again on
the specific questions and such, I may have objections.
MJ: Very well. Okay. You may do so with regard to Prosecution
Exhibit 3.
Also with regard to any photographs that this witness has
foundational testimony to provide, you certainly may lay a foundation,
if you think you can, through this particular witness.
But with regard to credibility of witnesses, that rests
with the members, and at this point I don't believe a summary of
evidence already received is appropriate to offer in as a matter in--
on the merits.
TC: Understood, sir.
MJ: Anything else that you anticipate pursuing with this
particular witness?
TC: No, sir.
409
MJ: Do you need a moment to discuss the limitations of his
testimony with him outside our presence?
TC: Yes, sir, just briefly.
MJ: Very well. Court stands in recess. Carry on.
[The session recessed at 1516 hours, 21 May 2008.]
[The session was called to order at 1524 hours, 21 May 2008.]
MJ: This 39(a) session is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, except for
the members who remain in the deliberation room.
Lieutenant Commander Messer?
TC: Yes, sir. In addition to discussing the phone calls and
the numbers that are on Prosecution Exhibit 3, I'll also be showing
the witness Prosecution Exhibit 1 for identification and just having
him speak briefly about the chain of custody of that document, who he
received it from and what he did with it when he received it. I will
not be seeking to admit that in evidence at this time.
MJ: Very well. So it's foundational?
TC: That's correct, sir.
MJ: Do you anticipate any objection, Captain Callahan, to the
additional proffered testimony?
IMC: No, sir, not to laying the foundation for those documents.
MJ: Very well. Anything else we need to address outside the
members' presence?
IMC: Not from Defense, Your Honor.
410
TC: Nothing from the Government, sir.
MJ: Very well. This 39(a) session is concluded.
Bailiff, please ask the members to rejoin us at this time.
BAILIFF: Yes, sir.
[The Article 39(a) session concluded at 1525 hours, 21 May 2008.]
[END OF PAGE]
411
[The court-martial was called to order at 1525 hours, 21 May 2008.]
MJ: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
Court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
Members, please be seated. All others may be seated at
this time.
[All persons did as directed.]
MJ: Lieutenant Commander Messer, further questions for this
witness?
TC: Yes, sir. May I approach?
MJ: You may.
TC: I'm retrieving from the court reporter what's been entered
into evidence as Prosecution Exhibit 3.
I'm handing Prosecution Exhibit 3 to the witness [handing
PE 3 to the witness].
Q. Commander Doud, do you recognize that?
A. [Reviewing PE 3.] I do.
Q. What is it?
A. It's phone records of Lieutenant Commander Penland's
government cell phone.
412
Q. Now, have you had the chance to review that exhibit?
A. I have.
Q. Why did you review that exhibit?
A. I was looking for phone calls that Lieutenant Commander
Penland would have made to the PRINCETON or the MOBILE BAY or
Lieutenant JG Wiggan or NC1 Lewis-Wiggan during the course of my
investigation.
Q. And just to clarify, what is that record a record of?
A. It is a raw record of the government cell phone of
Lieutenant Commander Penland, incoming and outgoing phone calls.
Q. And what time period?
A. I believe it's from--would have been from August 2006 to
February of 2007.
Q. Is that August or is it a different month?
A. Let me make sure. No, it's--yes. It looks like it begins
in August 2006.
Q. Okay. And in reviewing that document, what did you find?
A. I found the fact that she had made phone calls to the
MOBILE BAY, to the PRINCETON, to Lieutenant JG Wiggan and NC1 Lewis-
Wiggan.
Q. Just to clarify, you found in those records that that phone
had made these calls, correct?
A. Correct, that Lieutenant Commander Penland's cell phone had
made those calls.
413
Q. Approximately how many calls were made to the different
locations?
A. The tally of it was 72 to the PRINCETON, those were all to
the PRINCETON; there were 58 to Lieutenant JG Wiggan, he had a
personal account. Some of those--I believe 10 of those were actually
reverse calls from Lieutenant JG Wiggan to Lieutenant Commander
Penland. And then there were a total of five calls--or four to MOBILE
BAY and one call to NC1 Lewis-Wiggan's personal phone.
Q. Let's just go through those. How did you know that there
were 72 phone calls made to the PRINCETON?
A. Just looking at the records, verifying the numbers was the
PRINCETON's.
Q. And what number on the PRINCETON did those calls go to? Or
I should say the location; do you know where on the PRINCETON?
A. Oh, well, the--actually I don't recall the exact--it was to
Lieutenant JG Wiggan, I assume.
Q. But you're--well, you're certain that those calls were to
the USS PRINCETON?
A. Yes, certainly to the PRINCETON, right.
Q. The 67 calls that you referred to to Lieutenant JG Wiggan,
how did you know that those were to Lieutenant JG Wiggan?
A. The command, we checked the phone records of getting
Lieutenant JG Wiggan's phone number.
414
Q. And the four calls to the MOBILE BAY, how did you know----
A. The same thing. Looked up the MOBILE BAY's phone number,
verified it was to the MOBILE BAY.
Q. And to NC1 Lewis-Wiggan?
A. The same thing.
TC: Request permission to approach?
MJ: You may.
TC: I'm retrieving Prosecution Exhibit 3 from the witness.
MJ: Commander, if you would move a little closer to the
microphone. Our construction noise is competing with you.
TC: Retrieving from the court reporter--I've returned
Prosecution Exhibit 3, retrieving Prosecution Exhibit 1 for
identification. I'm showing Prosecution Exhibit 1 for identification
to the defense counsel [showing PE 1 for ID to Defense].
MJ: Very well.
TC: I'm handing Prosecution Exhibit 1 for identification to the
witness [handing PE 1 for ID to the witness].
Q. Sir, do you recognize that?
A. [Reviewing PE 1 for ID.] I do.
Q. And how do you recognize it?
A. These were photos that were given to me from NC1 Lewis-
Wiggan.
Q. When did she give you those photos?
A. She gave them to me when I interviewed her on board the
USS MOBILE BAY. It would have been late--well, late February. I
415
don't remember the exact date of the interview, but late February or
early March.
Q. Take a moment to just briefly look through those photos,
and could you please describe to the members how they present, in what
format.
A. They were digital, digital nature. I actually got a zip
disk or a flash drive from NC1 Lewis-Wiggan. She gave me the flash
drive and I brought it back to the command and turned it in to the
command.
Q. When you were given those photos by NC1 Lewis-Wiggan, what
did you do with them?
A. I basically came immediately back to the command and gave
them to the our JAG.
Q. Did you review those photos at any time?
A. I did, in preparation for the Article 32 hearing and for
today's trial.
Q. Is Exhibit 1 consistent with what the photos looked like
you saw?
A. Yes.
Q. So, in your opinion, the photos that you received are the
same photos that are in Exhibit 1 there?
A. Yes.
Q. They haven't been altered in any way?
A. Not to my knowledge.
416
Q. Did you receive any indications from NC1 Lewis-Wiggan or
any other witnesses that the photos had been altered?
A. No, had not.
TC: Thank you.
Request permission to approach, sir.
MJ: Very well.
TC: I'm retrieving Prosecution Exhibit 1 for identification
from the witness and I'm returning it to the court reporter.
I have no further questions, sir.
MJ: Captain Callahan, questions for this witness?
IMC: No. Thank you, Your Honor.
MJ: Members, questions for this witness? Negative response
from all panel members.
[The witness was duly warned, temporarily excused and withdrew from
the courtroom.]
TC: Sir, at this time the Government calls PS1 Lee to the
stand.
MJ: Very well.
IMC: Sir, if I may, before the Government calls that witness,
would it be possible to see if we can do some sort of arrangement in
regards to the work that's being done in the courtroom. It's making
it very difficult to hear. It's distracting for the court with this
very serious proceeding that's being held here today, Your Honor.
MJ: Very well. Lieutenant Washington, XO?
417
LT WASHINGTON: Unfortunately--there's a courtroom available
upstairs, sir, but the--I move them from right out here and I think
they're getting back at me to go up above. I'm----
MJ: We don't have any alternative but to move our forum here?
LT WASHINGTON: Yes, sir, unfortunately.
MJ: Why don't we take a recess. Members, please cover your
notes. Subject to my standard instructions, if you would depart on a
short recess.
BAILIFF: All rise.
[All persons did as directed.]
MJ: Please reassemble at 20 minutes to the hour. Court stands
in recess.
[The members withdrew from the courtroom.]
[The court-martial recessed at 1532 hours, 21 May 2008.]
[The court-martial was called to order at 1543 hours, 21 May 2008.]
TC: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: Court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time. And we
have seemed to have a reprieve from the construction, so hopefully
we'll be able to press forward.
All others, please be seated.
418
[All persons did as directed.]
MJ: Further evidence from the prosecution on the merits of this
case?
TC: Yes, sir. At this time the Government would call
PS1 Cheston A. Lee to the stand.
MJ: Very well. Bailiff, please call Petty Officer Lee on
behalf of the court.
[The bailiff retrieved the witness.]
PERSONNEL SPECIALIST FIRST CLASS CHESTON A. LEE, U.S. Navy, was called
as a witness for the prosecution, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Petty Officer Lee, please state your full name, spelling
your last for the record.
A. Cheston Alexander Lee, L-E-E.
Q. And what is your current duty station?
A. My current duty station is the USS BON HOMME RICHARD.
Q. How long have you been in the Navy?
A. I've been in the Navy 19 years come July.
Q. Have you ever served on board USS MOBILE BAY?
A. Yes, sir.
Q. When was that?
A. That would be February, March of '06 to roughly September
of '07.
419
Q. And while you served on the MOBILE BAY, are you familiar
with a Sailor by the name of NC1 Lewis-Wiggan?
A. Yes, sir.
Q. How is it that you knew her?
A. I was her LPO on board the MOBILE BAY.
Q. And what department did you work in?
A. I worked in the Exec Department and she was the career
counselor.
Q. What type of interaction did you have with her?
A. Daily interaction with her, as far as professional, and
personally every once in a while go for maybe lunch or something like
that.
Q. Did you share the same office?
A. We shared the same office for a brief time. She was in my
admin office for a while and then after we had a P-PAC inspection, she
moved over into the chaplain's office.
Q. Do you remember the time frame when you shared the same
office?
A. No, sir, not off the top--no, sir.
Q. Did you notice anything unusual with her?
A. Not until she stated that she was having some issues and so
her attitude kind of changed a little bit. She was--she was very much
a squared away Sailor. She did everything the way it was supposed to
be done. She was a hard case on the junior personnel as far as the
females with uniform regulations, but then----
420
IMC: Objection. Relevance.
MJ: Lieutenant Commander Messer?
TC: Sir, I'll go on and ask a follow-up question to clear it
up.
MJ: Very well.
Q. When did her attitude change?
A. It had to be when we came back after deployment which
was----
Q. Do you remember when you came back from deployment?
A. It was roughly November of '06.
Q. And what change did you notice?
A. She kind of----
IMC: Objection. Relevance.
MJ: Overruled.
Q. You can answer the question.
A. She--her attitude at work kind of changed as far as she
wasn't really focused on her job. She was kind of short tempered a
little bit, just seemed like she was always being nagged about
something.
Q. Do you know why her attitude changed?
A. After we--after I noticed it, there were some times where I
pulled her aside and asked her what's going on and she had stated
there was some issues going on at home.
IMC: Objection. Hearsay.
MJ: Commander Messer?
421
TC: Sir, not offered for the truth. Offered for the state of
mind of the declarant.
MJ: Overruled. You may answer.
WIT: I'm sorry. Say the question again.
Q. The question was how did you know that she had issues.
A. Oh. When she--after she started displaying a different
attitude at work, I kind of pulled her aside and asked her what was
going on and she kind of stated she had some issues going on at home,
and we didn't really get into it at that point of time. But later on
down the road she started giving me some information about what was
going on as far as what she was going through.
Q. What did she tell you?
A. She said that she was having some issues with her husband.
She thought that he was cheating on her. She was going to try to
figure out what was going on. He wasn't coming home some nights.
Because they lived up in Temecula, so she stayed on the boat if she
had duty, but other times she would go home and she was stating that
he wasn't at home or wasn't coming home or whatnot.
Q. Did she appear angry with her husband?
A. For the most part angry/upset I'd have to say. Not angry
as, you know, calling out his name or anything like that, but just
upset, not sure what was going on.
Q. Did she ever receive any phone calls while on board
USS MOBILE BAY?
422
A. She didn't get a lot of phone calls on board the ship till
after we got back off deployment, after she told me her husband--that
she actually told me she thought her husband was messing around.
There were a few phone calls we had received maybe a month or so after
that.
Q. And did you ever receive any of those phone calls?
A. I took maybe four or five phone calls for her. It was--it
was a female, never left a name--oh, well, they left a name, but it
was always something different. It just seemed like it was the same
person all the time.
Q. So you testified it was the same person. How did you know
that?
A. Just by the voice, after a while, you kind of picked up on
it and then it was always someone looking for NC1. They were very
adamant about getting in touch with her. And once NC1 told me to find
out who it was and I started asking, well, what nature of the call was
it for, whatnot, whatnot, it was very evasive and it was just "Well,
I'll just call back" and that was it.
Q. How long did those calls continue for?
A. Let's see. Again I only answered them maybe four or five
times. I'd have to say maybe two-to-three-week time frame. There
were other people in the office who also answered the phone calls, so.
Q. Who else was receiving phone calls for NC1?
A. YN1 Cunningham, YN3 Espinosa, YN3--what's his name--
Richardson. Our phone line was also tied up with the Medical
423
Department, as well as the chaplain's office, so.
Q. Were these phone calls disruptive to the day-to-day--on
board the ship?
A. Not so much in my office, no. And like I said, more than
likely I didn't transfer the call because the person just said, "No,
I'll call back" or whatnot. So it wasn't disruptive for my office
per se.
Q. Did--to your knowledge, did Petty Officer Lewis-Wiggan ever
accept any of the calls directly?
A. I know I transferred the calls to the chaplain's office. I
don't know if she actually took the call or whatnot. It could have
been the chaplain who answered; I'm not sure.
Q. Did you ever see her after any of those phone calls?
A. Yeah. She would come to my office. You know, I'm sure it
was after a phone call. I know once we transferred, that maybe a half
hour she'd come by the office.
Q. What was her demeanor like?
A. She--aggravated. She seemed to be a little bit upset. She
did say that she did get phone calls from a lady.
IMC: Objection. Hearsay.
MJ: Commander Messer?
TC: It's offered for state--not for the truth of the matter but
state of mind of the declarant.
MJ: Captain Callahan?
424
IMC: The fact that she may or may not be receiving phone calls a
number of times certainly doesn't go to her state of mind. It's going
to the truth of the matter as to whether or not she's receiving these
phone calls. That's something that's proper to ask that witness when
she's on the stand, Your Honor.
MJ: Lieutenant Commander Messer?
TC: No further response.
MJ: Sustained.
Q. Let me finish up with a question. I'm not asking about
what she said to you but just her overall demeanor. How did she seem
to you?
A. Very aggravated, upset.
TC: Thank you, Petty Officer. I have no further questions.
MJ: Captain Callahan, questions for the witness?
IMC: Briefly, please, Your Honor.
MJ: Very well.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good afternoon, Petty Officer Lee.
A. Good afternoon, sir.
Q. Petty Officer Lee, over the course of several months you
received approximately four to five phone calls from an unidentified
female for Chief--then NC1 Lewis-Wiggan, correct?
A. Over the few months that we were back in port, yes, sir.
425
Q. And Chief Wiggan, she also conveyed to you that she was
upset because she wanted to work things out with her marriage, and her
husband did not, correct?
A. She was upset that she didn't understand why her
relationship wasn't working out and that she did seem that she wanted
to correct or fix the problem or whatever the issue was, yes, sir.
IMC: Thank you.
No further questions, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Nothing further, sir.
MJ: Questions from our members? Affirmative response from
Commander Kelsch, Commander Tucker.
Members, if you would please write out your questions.
After you've done so, fold them half so they cannot be read and hold
them up after you've completed the question and signed it and I'll
have our bailiff retrieve them from you so they can be marked by the
court reporter. Negative response from the other panel members.
Bailiff, if you would retrieve the questions from our
members and provide them to the court reporter. She will mark them as
the next appellate exhibits in order.
[Questions from CDR Kelsch and CDR Tucker were marked as AE XXXIX and
XL, respectively.]
MJ: Bailiff, if you would take the questions from our court
reporter and provide them to the trial counsel first for his review
and then to the defense counsel for his review, and then return them
426
to me.
[The members' questions were inspected by counsel for both sides and
handed to the military judge for questioning.]
MJ: Thank you.
Commander Messer, you did not initial the question forms.
If you would please do so.
[Trial counsel did as directed.]
MJ: Thank you.
EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q. Question from Appellate Exhibit XXXIX: PS1 Lee,
approximately how many phone calls did your office handle a month
after the deployment?
A. From the outside calls coming in, I'd have to say maybe 15,
15 and 20 a month.
Q. Thank you.
Question from Appellate Exhibit XL: What is the office
phone number on the MOBILE BAY?
A. I'm sorry, sir. I don't remember what that number is now.
Q. Did you receive direct outside calls or were the connected
by the quarterdeck?
A. They seem to be direct outside calls. There was a
different ring for an outside call coming in vice on board the ship,
sir.
427
MJ: Thank you.
Follow-on questions in light of those from either counsel?
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. PS1, do you know the quarterdeck phone number to the MOBILE
BAY?
A. Not now, sir. No, sir.
TC: No further questions.
MJ: Captain Callahan?
IMC: Nothing further. Thank you, Your Honor.
MJ: Follow-on questions from our members? Negative response
from all panel members.
[The witness was duly warned, temporarily excused and withdrew from
the courtroom.]
MJ: And let me return Appellate Exhibits XXXIX and XL to our
court reporter.
Further evidence from the prosecution?
TC: Sir, at this time the Government would call Commander Masi
to the stand.
MJ: Very well. Bailiff, please call Commander Masi.
[The bailiff retrieved the witness.]
[END OF PAGE]
428
COMMANDER MATTHEW J. MASI, U.S. Navy, was called as a witness for the
prosecution, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Would you please state your full name, spelling your last.
A. Commander Matthew John Masi, M-A-S-I.
Q. And, Commander, are you currently on active duty?
A. Yes, I am.
Q. What is your current duty station?
A. Current duty station is Maritime Expeditionary Security
Group ONE.
Q. And is that the command formerly known as Navy Coastal
Warfare Group ONE?
A. Yes, it is.
Q. How long have you been in the Navy?
A. Been in the Navy 18 years next month.
Q. And briefly for the members can you just describe your
background.
A. Went to Navy Supply Corps School back in 1990, graduated
from Supply Corps School, went to my first ship, USS IWO JIMA; on
there I was disbursing officer, sales officer three years. From there
I went to Fleet ASW Training Center as a supply officer.
At that time I got out of the Navy for about a year; I was
a drilling reservist while I was out, but I was out for a year.
429
Came back in 1995, stationed at Naval Air Station, Naval
Air Reserve Point Mugu as a supply officer. From there I went to the
USS DEYO as a supply officer. From the DEYO I went to Navy Cargo
Handling Battalion FOURTEEN as the OIC. From Navy Cargo Handling
FOURTEEN I went down to NAS JRB New Orleans as the assistant supply
officer, fleeted up to the supply officer. From NAS JRB New Orleans I
went to REDCOM Northwest as the logistics officer of the N4. And from
there I came down as a supply officer for used to be NCWG ONE, now
MESG ONE.
Q. When did you report to Navy Coastal Warfare Group ONE?
A. October 4th, 2006.
Q. And do you know the accused in this case?
A. Yes, I do.
Q. How do you know her?
A. She worked for me at MESG ONE.
Q. Approximately what time period did she work for you?
A. She worked for me from October of 2006 to February of 2007.
Q. And what was her official title during that time?
A. During that time it was assistant--when I got there, we
changed it to assistant supply officer.
Q. So she reported directly to you?
A. Yes.
Q. And did you--as her direct supervisor, did you have the
opportunity to observe her work?
A. Yes.
430
Q. And do you also--did you have knowledge of what her duties
were?
A. Yes, I did.
Q. And did any of those duties involve either USS PRINCETON or
USS MOBILE BAY?
A. No. We had zero dealings with the ships. It's not within
our type comm. We're--we fall to Navy Expeditionary Combat Command.
That's our type comm. They control all of the expeditionary forces
for the Navy. And the ships report to, you know, SURFLANT or SURFPAC
and it's a different chain of command. We have no reason at all to
have dealings with the ships.
Q. During the time period that Commander Penland worked for
you, can you think of any reason during that period or any
justification that would be an official reason why she would call
either of those two commands?
A. I can't think of one.
Q. Now, you were present at a meeting at the end of February,
is that right?
A. Correct.
Q. And can you please give the members some details of that
meeting.
A. Details of the meeting. Like I said, I was--I reported to
NCW in October of '06 and during the first few months there I've
noticed that Lieutenant Commander Penland, her performance as a supply
officer was not what----
431
IMC: Objection. Relevance.
MJ: Lieutenant Commander Messer?
Q. Commander, we're not going to get into the performance of
the accused at this time.
A. Okay.
Q. If you could just explain to the members what was the
purpose of the meeting.
A. The purpose of the meeting was to issue a letter of
instruction on Lieutenant Commander Penland.
Q. Do you remember when that meeting occurred?
A. To the best of my knowledge, it was about--it was on a
Friday, end of February. I think it was about the 23rd of February.
Q. And do you remember who was present at that meeting?
A. Present was the commodore, Captain Sturges; the acting JAG
at that time, Lieutenant Commander McCarthy I believe her name was;
myself; Lieutenant Commander Penland; and I think the chief staff
officer, but I can't--I can't be sure, it was a while ago, which was
Commander Jack Ward.
Q. And at that meeting, do you remember Lieutenant Commander
Penland saying anything?
A. She said a lot.
Q. Was she--did she say anything about Petty Officer Lewis-
Wiggan at the meeting?
A. The commodore asked her--the commodore got--received a
phone call from Petty Officer Wiggan's commanding officer and he
432
brought up that Lieutenant Commander Penland was contacting the petty
officer on the ship and the commodore brought up--asked Lieutenant
Commander Penland, "Have you contacted Petty Officer Wiggans?"
Lieutenant Commander Penland said, "No, I have not had contact with
Petty Officer Wiggans." The commodore asked her again, still the same
answer. And then a final time the commodore said, "So you're telling
me to my face you have not contacted Petty Officer Wiggans?" And she
said, "No, I have not contacted Petty Officer Wiggans."
Q. Was there any question in your mind as to what she intended
to relay to the commodore?
A. That she's had no contact with Petty Officer Wiggans.
Q. So there was no misunderstanding?
A. I had--there was no misunderstanding from me, no.
TC: Thank you very much, sir. I have no further questions.
MJ: Captain Callahan, questions for the witness at this time?
IMC: Briefly, Your Honor, please.
MJ: Very well.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good afternoon, sir.
A. Good afternoon.
Q. Sir, isn't it true that you've been the subject of numerous
IG complaints that Lieutenant Commander Penland has filed?
A. Yes, I have been.
433
Q. Is it also true you've been the subject of an equal
opportunity complaint filed by Lieutenant Commander Penland?
A. Yes, I have been.
Q. Isn't it also true that you approached Lieutenant Commander
Penland and complained to her about bringing the business and issues
of Naval Coastal Warfare Group ONE up with Naval Coastal Warfare Group
TWO?
A. Yes.
Q. Is it also true that you complained about her bringing up
issues and concerns she had and, instead of addressing them through
you, sending them to other officers?
A. I don't remember that. I remember the conversation with
her about talking to the supply officer at Group TWO.
Q. Did Commander Marshall ever come and speak with you about
concerns that Lieutenant Commander Penland had raised about you and
about the supply office?
A. Yes.
IMC: Thank you. No further questions.
MJ: Lieutenant Commander Messer?
TC: Yes, briefly, sir.
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. Commander, do you hold any ill will against Lieutenant
Commander Penland?
A. No.
434
Q. Do you want to see bad things happen to her?
A. Bad, no.
Q. And have you in any way changed your testimony or testified
untruthfully here today to achieve that end?
A. No.
TC: Thank you. I have no further questions.
MJ: Captain Callahan?
IMC: Thank you, Your Honor.
RECROSS-EXAMINATION
Questions by the individual military counsel:
Q. Sir, so your testimony here today is that even though you
have been named in IG complaints, even though you were upset with her
about going over your head----
TC: Objection, sir. Asked and answered.
MJ: Overruled.
Q. Even though you were upset with her about reporting
contracting issues to Naval Coastal Warfare Group ONE, even though you
were upset that Commander Marshall came, the judge advocate general
and for the unit, that you are not upset at her over any of this?
A. No. Because the complaints that she raised about the
supply operation was before my time; it was actually while she was
acting as the supply officer. So any complaints that she would be
raised were actually putting herself on report. It had nothing to do
with myself. So, no, I wasn't upset about that.
435
Q. And none of those occurred--none of those reports list any
time for when you were acting as the division head there?
A. Well, department head and----
Q. The department head.
A. No.
Q. But you were the subject of an equal opportunity complaint
and multiple IG complaints she raised?
TC: Objection. Asked and answered.
MJ: Overruled.
WIT: I did answer that, but, yes, I was the subject.
Q. And you're not--you don't hold any ill will because you've
been named in those multiple complaints?
A. I'm just trying to get my job done and move on. If we have
to go through those steps to bring the process to a completion, great,
we'll just--we'll go through.
Q. I understand, sir, that, you know, you have to do your job
and you have to move on, and your testimony is you're not altering
your testimony any because of that, but your testimony also is you're
not even the least bit upset that these very serious allegations have
been leveled against you?
A. No.
IMC: Thank you. No further questions, sir.
MJ: Lieutenant Commander Messer?
TC: Nothing--excuse me. Nothing further, sir.
436
MJ: Questions from our members? Negative response from all
panel members.
[The witness was duly warned, temporarily excused and withdrew from
the courtroom.]
MJ: Further evidence from the prosecution on the merits of its
case?
TC: Yes, sir. We have two more witnesses scheduled for today,
Lieutenant Commander Moninger and Lieutenant Commander McCarthy. I'm
not sure if they are currently here and available.
MJ: Very well.
TC: I guess we'll send the bailiff quickly to see if they're
standing by and, if not, I'd ask for a brief recess.
MJ: Your preference as to which one if they're both there?
TC: I'm sorry, sir. The Government calls Lieutenant Commander
Moninger.
MJ: Moninger. Very well. Bailiff, if you would, please, see
if the witness is available.
[The bailiff did as directed.]
BAILIFF: No, Your Honor. He's not available.
TC: Sir, the Government asks for a brief recess.
MJ: Very well. Members, subject to my standard instructions,
please cover your notes. Do not discuss the case amongst yourselves
or with anyone else. You may depart on a brief recess. Please
reassemble at 20 minutes after the hour.
BAILIFF: All rise.
437
[All persons did as directed.]
MJ: Court stands in recess. The members may depart.
[The members withdrew from the courtroom.]
MJ: Carry on. Court's in recess.
[The court-martial recessed at 1609 hours, 21 May 2008.]
[The court-martial was called to order at 1632 hours, 21 May 2008.]
TC: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: Court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Lieutenant Commander Messer, your next witness, please.
TC: Yes, sir. The Government calls Lieutenant Commander
McCarthy to the stand.
MJ: Very well. Bailiff, if you would please call the witness
on behalf of the court.
[The bailiff retrieved the witness.]
[END OF PAGE]
438
LIEUTENANT COMMANDER KRISTEN MCCARTHY, JAG Corps, U.S. Naval Reserve,
was called as a witness for the prosecution, was sworn, and testified
as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Commander, for the record, can you state your full name,
spelling your last.
A. Kristen McCarthy, M-C-C-A-R-T-H-Y.
Q. And, Commander, what is your current duty station?
A. I'm a reservist with--in our Region Legal Service Office
Southwest 319.
Q. And you're--are you on active duty at this time?
A. No. I'm a drilling reservist right now.
Q. Do you know the accused in this case?
A. She--yes.
Q. How do you know the accused, ma'am?
A. She was the supply officer at--what was then Naval Coastal
Warfare Group ONE when I was mobilized briefly to fill in as the SJA
there.
Q. How long were you mobilized on that----
A. Approximately two months.
Q. And what were the approximate dates of that?
A. It was the beginning of January through February, and I
detached the first week of March.
439
Q. And that was in the year of what?
A. I'm sorry. 2007.
Q. And what kind of interaction did you have with the accused
during that time?
A. I had very little interaction, other than at, you know,
department head meetings, command PT, other than the instances as to
why we're here.
TC: Actually, sir, request permission to approach?
MJ: Very well.
TC: I'm retrieving from the court reporter what has been
previously marked as Prosecution Exhibit 20 for identification.
MJ: And while you're doing that, let me just note for the
record that LN2 Chico has been detailed court reporter for this
session, and she has been previously sworn.
TC: I'm showing Prosecution Exhibit 20 for identification to
defense counsel [showing PE 20 for ID to Defense].
I'm handing Prosecution Exhibit 20 for identification to
the witness [handing PE 20 for ID to the witness].
Q. Commander, do you recognize that?
A. [Reviewing PE 20 for ID.] Yes, I do.
Q. What is that?
A. This is the military protective order that was issued to
Lieutenant Commander Penland on the 9th of January of '07.
440
Q. And how is it that you recognize that document?
A. Because I was involved in the drafting of this document and
I also was the one that presented it to Lieutenant Commander Penland.
Q. And does this document appear to be an accurate
representation of what you helped draft and serve on Lieutenant
Commander Penland?
A. Yes, it does.
TC: Sir, at this time I would request that Prosecution Exhibit
20 be offered into evidence and the words "for identification" be
deleted.
MJ: Any objection from the Defense?
IMC: No, Your Honor.
MJ: There being no objection, Prosecution Exhibit 20 for
identification is admitted into evidence. The words "for
identification" will be stricken, and you may publish the exhibit at
an appropriate time.
Q. Lieutenant Commander McCarthy, to your knowledge when this
document--well, I should ask you when--after this document was served,
when did it expire?
A. It expired on the 19th of January 2007.
Q. And to your knowledge, was this order ever violated?
A. Not to my knowledge, no.
Q. Now, were you present at a meeting on the 23rd of February
at Navy Coastal Warfare Group ONE?
A. Yes.
441
Q. Who was present at that meeting?
A. The commodore, Captain Sturges; myself, Commander Masi; and
Lieutenant Commander Penland.
Q. Do you remember what the purpose of that meeting was?
A. Yes. The commodore had received a call from the--I believe
the commanding officer of the MOBILE BAY stating that Lieutenant
Commander Penland had been--had called NC1 Lewis-Wiggans again, I
believe on the 21st of May [sic], and he was calling to let the
commodore know that this was starting up again.
Q. And what was the--what was the purpose of the meeting?
A. Oh, I'm sorry. The purpose of the meeting was to--the
commodore wanted to tell Lieutenant Commander Penland in person that
she was to have--basically the exact same type of thing this MPO was
for originally was that she should have no contact with NC1 Lewis-
Wiggan.
Q. And what was Lieutenant Commander Penland's response to
that?
A. He stated, "I just got a call from the CO of the MOBILE BAY
that you called her," and her response was, "I have not spoken to that
woman" or something along those lines.
Q. Did she give a definitive period as to when she had not
spoken to that person?
A. She said--she said "I have not talked to her since," and
she pointed to me, "since JAG told me--gave me that MPO" or----
442
Q. So, in your mind, what was she representing?
A. That she had had no contact--she had had no conversations
with NC1 Lewis-Wiggans since the 9th of January.
Q. And that period would have been about a month and a half?
A. Well, this was the 23rd of February that she said that and
the MPO was issued on the 9th of January of '07, yes.
Q. Now, was there any question in your mind as to the resolve
of the accused, in other words, her intent when she made that
statement?
A. It was her intent to tell the commodore that she did not
talk to her.
Q. And it was--that was stated in no--I mean, there was no
question as to what was stated?
A. No. She was very clear.
TC: Thank you. I have no further questions.
MJ: Captain Callahan, questions for the witness?
IMC: Thank you, Your Honor.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good afternoon, ma'am.
A. Hello.
Q. Ma'am--I'll try and talk around the drill bit there.
Ma'am, Captain Sturges asked her one time if she had called
and one time she denied calling, correct?
A. I'm sorry. Could you repeat the question.
443
Q. Captain Sturges asked her one time about calling and one
time she denied calling Wiggan, right?
A. He didn't ask her.
Q. He didn't ask her?
A. No. He said, "I just"--or he said, "I got a call from the
MOBILE BAY saying that you called NC1 Lewis-Wiggans." And she said,
"No, I didn't" or, you know, "I did not call that woman."
Q. So it wasn't in response to a question?
A. No.
Q. And did she reiterate her position or did she just state it
one time?
A. She--she continued to say that.
Q. So she said multiple times "I did not call that woman"?
A. Well, she continued to say that she was--had not had
contact with her, yes.
Q. Was that one long response by her or was there other
questioning going on and then the responses?
A. I'm--I'm not sure there----
Q. Or has it been too long that you can remember, ma'am?
A. I mean, yeah, it was more than a year ago. I'm not sure
exactly how it happened, but her position didn't change, if that's
what your question is.
Q. And isn't it true that part of the reason cited in the MPO
or for giving the MPO was allegations of making harassing phone calls?
A. Yes.
444
Q. And isn't it possible that Commander Penland said "I have
not been making harassing phone calls to that woman"?
A. That's not what I recall.
Q. Is there any possibility your memory is shaky on it?
A. No.
Q. So you don't remember for certain as to whether or not
there were interruptions, but you do remember for certain that she
said "I have not called, I have not called and harassed"?
A. I am quite certain--no. I am quite certain that she said
"I haven't spoken to her since JAG told me not to."
IMC: Thank you.
No further questions, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Just briefly.
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. Lieutenant Commander McCarthy, are you the--have you been
the subject of any equal opportunity complaints or IG complaints filed
by Lieutenant Commander Penland?
A. Not that I'm aware of.
TC: Thank you.
No further questions, sir.
MJ: Captain Callahan?
IMC: Nothing further, Your Honor.
445
MJ: Either side desire the witness subject to recall for
purposes of this trial?
TC: Just telephonically, sir.
MJ: Very well. I should have asked: Members, any questions
for the witness? Negative response from all panel members.
[The witness was duly warned, temporarily excused and withdrew from
the courtroom.]
MJ: Further evidence from the prosecution on the merits of its
case this evening?
TC: Nothing further this evening, sir.
MJ: Very well. Members, in a moment, I will release you in an
overnight recess. We are making apparently good progress, so there's
no need for a late session tonight. I will not make that same promise
with regard to tomorrow or Friday, but perhaps I may be able to as the
day develops. Please cover your notes. Again you may take them with
you; if you'd like, you can leave them behind and they'll be provided
for you in the morning.
Given the possibility of a late session and construction
debris depending on if we have to shift locations, I'm going to switch
to a more comfortable uniform. If you would please return tomorrow at
0900. The uniform will be khaki. If you'd like, you may bring a
sweater or a jacket; it may be cold in this space.
Subject to the standard instructions to not discuss the
case amongst yourselves or with anyone else, the members may depart on
an overnight recess to reassemble at 0900 hours tomorrow. Good
446
evening, members. The members may depart.
BAILIFF: All rise.
[All persons did as directed, and the members withdrew from the
courtroom.]
[The court-martial recessed at 1642 hours, 21 May 2008.]
[END OF PAGE]
447
[The Article 39(a) session was called to order at 1643 hours, 21 May
2008.]
MJ: Please be seated.
[All persons did as directed.]
MJ: This 39(a) session is called to order.
Let the record reflect the members have departed from the
courtroom.
I did neglect to summarize a brief 802 conference we held
in the courtroom before the last session of court. Counsel outlined
the remaining evidence of the case. The Government anticipates
calling four witnesses tomorrow morning and expects to wrap up its
case-in-chief by lunch hour. I requested then that the Defense have
any witnesses it desires to present available after lunch, and was
informed that those witnesses would take perhaps half a day at most.
So it would appear that we will be hopefully completed with
the evidence on the merits by tomorrow afternoon, late afternoon or
early evening. And I requested counsel to be prepared to discuss
findings instructions with me at that time.
Counsel concur with my summation of our 802 conference?
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: And for Navy personnel, the uniform will be khaki tomorrow.
Lieutenant Commander Penland, you may dress down, if you
desire, or you may remain in summer whites. I'll let you discuss that
matter with your counsel, however you're more comfortable.
448
Are there other matters we need to address on the record
this evening?
TC: No, sir.
IMC: Not from Defense, Your Honor.
MJ: Very well. Thank you, counsel, for your presentations and
efforts on behalf of the Court to this point.
This court is in overnight recess. Carry on.
[The Article 39(a) session recessed at 1644 hours, 21 May 2008.]
[END OF PAGE]
449
[The Article 39(a) session was called to order at 0906 hours, 22 May
2008.]
MJ: This 39(a) hearing is called to order. Let the record
reflect that all parties present prior to the overnight recess are
again present before the Court at this time except for the members who
remain in the deliberation room. Let me note a change in court
reporters. Ms. Brown has been detailed court reporter for this
session this morning, and she has been previously sworn.
Prior to going on the record this morning, counsel
indicated there was an issue they wanted to address on the record
concerning a spectator to the court-martial and rather than go into an
extensive summary of what we discussed off the record, I'll let
Captain Callahan state the concern and a request for the Court.
IMC: Sir, Commander Penland would request that Commander
Marshall not be allowed to watch the court proceedings. I'll
summarize what we discussed. She was called again last night by
Commander Marshall. Commander Penland feels that there's a long
history of witness intimidation, tampering with her court-martial,
illegal influence being done by Commander Marshall against her; and
the appropriate way to handle that is to address this as a motion in
limine, allow Lieutenant Commander Penland to testify on it and allow
the Court to hear what she has to say on it vice using me as a
mouthpiece for what is delicate ethical concerns dealing with another
attorney.
MJ: Lieutenant Commander Messer?
450
TC: Sir, there's no need for Commander Penland to take the
stand and go into a long history of how she doesn't like Lieutenant
Commander Marshall. The issue here is what was discussed in the phone
call last night. I've already represented to the Court that fact.
If the Court does not take my interpretation of the call as
an officer of the court at face value, then we can certainly call
Commander Penland to testify to the limited purpose of what transpired
in the phone call.
But to just give her another soapbox, an open forum here to
go through a long list of complaints she has with Lieutenant Commander
Marshall, with the command, and everyone else she's dealt with in this
case I think is a waste of the Court's time. It's inappropriate.
Again, it's a public--this is a public hearing. There is
nothing in the call last night suggests that Lieutenant Commander
Marshall was intending any kind of ill will towards Commander Penland
other than an honest mistake and that she was researching phone
records in preparation for the Government's case. It's an unfortunate
decision by her to call that number, but she did. As I represented,
there is nothing--I overhead nothing said to indicate any kind of
tampering or chilling of a potential witness or any kind of
intimidation. And if need be, I can put Commander Marshall on the
stand to explain her intent as to why that call was made.
But to open this up to, you know, things outside of what
happened last night I think is beyond the scope of the request and I
don't think it's a valid request in any event.
451
MJ: Well, I don't see a need for an extensive evidentiary
hearing at this point. I think, in an abundance of caution, I'm going
to grant the Defense's request. If the contact was made, it was
inadvertent. It still is unfortunate that given the scenario and the
circumstances of this case that the Convening Authority or the former
Convening Authority's SJA would contact the accused during the
pendency of her trial and, given the sensitive nature of the prior
interactions, I think that it would be most appropriate at this point
to ask Lieutenant Commander Marshall to not observe the proceedings.
Therefore, the Defense's request to exclude Lieutenant
Commander Marshall is granted, subject to reconsideration at a later
point.
IMC: Yes, sir.
TC: Aye, sir.
MJ: Other matters we need to address on the record this
morning?
IMC: No, Your Honor.
TC: Nothing from the Government, sir.
MJ: Ready for the members?
TC: Bailiff, are all the members present?
BAILIFF: Yes, sir.
TC: We are, sir.
MJ: Very good. This 39(a) session is concluded.
Bailiff, please ask the members to rejoin the court.
[The Article 39(a) session concluded at 0910 hours, 22 May 2008.]
452
[The court-martial was called to order at 0910 hours, 22 May 2008.]
MJ: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the overnight recess are again present before the Court at this time,
to include all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Good morning, members. We have additional evidence to
offer you this morning.
Lieutenant Commander Messer, does the Government have
additional evidence it would like to offer on the merits of its case?
TC: It does, sir. At this time the Government would call
Captain John B. Sturges, III, (Retired).
MJ: Very well. Bailiff, if you would please call the witness
on behalf of the court.
[The bailiff retrieved the witness.]
[END OF PAGE]
453
CAPTAIN JOHN B. STURGES, III, U.S. Navy (Retired), was called as a
witness for the prosecution, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Sir, for the record, would you please state your full name,
spelling your last.
A. John Bellow [ph] Sturges, III, S-T-U-R-G-E-S.
Q. And, sir, by whom are you currently employed?
A. Booz Allen Hamilton.
Q. And do you have any affiliation with the Navy at this time?
A. No.
Q. Have you ever served in the Navy?
A. Yes.
Q. In what capacity, sir?
A. I retired as a Captain as of 1 December.
Q. How many years of service did you have, sir?
A. A little bit over 30.
Q. And briefly for the members could you please describe your
service.
A. I graduated from the Naval Academy in 1978 and was a
surface warfare officer, had a career predominantly on cruisers,
destroyers and associated staffs and concluded my career as Commander,
Naval Coastal Warfare Group ONE down in Imperial Beach.
454
Q. Sir, do you know the accused in this case, Lieutenant
Commander Penland?
A. I do.
Q. How do you know her?
A. She was my supply officer at Naval Coastal Warfare Group
ONE.
Q. During what period, sir?
A. She was my supply officer probably a little bit--about 14
months. I want to say she reported in 2006----
Q. And was she----
A. Probably early 2006.
Q. And was she at the command when you retired?
A. She was, but she was assigned TAD to another command.
Q. Now, did you ever receive a call from the CO or XO of
another ship about Lieutenant Commander Penland?
A. I did. I received a call from the Commanding Officer of
the MOBILE BAY who wanted to know what was up with my lieutenant
commander calling one of his Sailors and bothering her.
Q. And what was your response to that phone call?
A. I said I'd check into it. We had had similar incidences
before and actually the XO had spoken to my chief staff officer about
similar incidents. I was hoping we were kind of beyond that because I
had actually issued her a military protective order to stay away from
this Petty Officer Lewis-Wiggan and so I thought we were beyond that,
and then I had received this call from the commanding officer.
455
Q. What did you do in response to that phone call?
A. I had a discussion with my acting JAG at the time and also
my chief staff officer. I kind of wanted to figure out how to best
approach this and it was decided I would call Commander Penland in and
have a discussion with her and direct her not to contact----
Q. Who was the JAG at the time?
A. Kristen McCarthy, Lieutenant Commander.
Q. And who was your chief staff officer at the time?
A. Commander Jack Ward.
Q. Do you remember the--so you had talked about the meeting.
Was there actually a meeting held?
A. Yes. We had a meeting with Commander Penland and the
discussion was I had directed her not to have any more conversations
with at the time Petty Officer Lewis-Wiggan.
Q. Do you remember the date of that meeting?
A. I want to say it was probably the 22nd or 23rd of February
last year.
Q. Do you remember the day of the week of that meeting?
A. It was either Thursday or Friday.
Q. And so who was present at the meeting?
A. Commander McCarthy, Commander Penland, Commander Ward and
also Commander Masi who was Lieutenant Commander Penland's department
head.
456
Q. Did Lieutenant Commander Penland say anything in response
to your warning to her not to be contacting Chief Lewis-Wiggan?
A. Yes. She vehemently denied that she had contacted Petty
Officer Lewis-Wiggan, and so I was kind of taken aback because I had
this commanding officer calling me and telling me that she had and so
I was at a dilemma.
Q. Do you remember the exact words she used to you in response
to your warning?
A. Yeah. She vehemently denied it. The exact words were--I
don't remember her exact words, but they were along the lines of "I
did not call her. You know, you directed me to not call her before,
and I did not call her." But again she kind of just kept going down
that trail and there was nothing that prompted me to ask her that.
She just kind of offered it as rebuttal to my direction that she not
call her anymore.
Q. And when she made that statement, was there any question in
your mind what she meant?
A. No. No. She was very direct. She was definitely telling
me that she had not called this individual.
Q. Now, are you aware of any complaints that Lieutenant
Commander Penland has filed against the command?
A. Yeah, there's a whole host of them. I lost track of them,
frankly.
457
Q. Have those complaints in any way made you alter your
testimony here today?
A. Not at all.
Q. Have you--do you hold a grudge against Lieutenant Commander
Penland because of those complaints?
A. I don't hold a grudge against her because of those
complaints. It's more about her behavior and her professionalism as a
Naval officer.
Q. And because of those complaints have you in any way changed
your perception or your memory of that event on that day?
A. No, because all those have been subsequent to that event
anyway, so it didn't influence it one way or another.
TC: Thank you very much, sir. I have no further questions.
WIT: You're welcome.
MJ: Captain Callahan?
IMC: Thank you, Your Honor.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good morning, sir.
A. Good morning.
Q. Sir, that whole host of complaints includes both IG
complaints and equal opportunity complaints, doesn't it?
A. It sure does.
458
Q. It includes complaints about illegally using Gov Works
after the command wasn't allowed to use Gov Works anymore, as well as
other IG complaints?
A. Yeah. Like I said, I wasn't even aware of all the
complaints going on. Like I said, we literally--generally when a
command's being investigated, you're not apprised of that
investigation. You try to do it without the commander's direct
involvement or, you know, like I said, there was several
investigations going on.
Q. Did she also raise complaints and an investigation was
going on illegally rolling over contracts into next fiscal years?
A. Okay.
Q. Are you aware of those? Did----
A. Well, like I said, I--there were so many investigations
going on concurrently that some I was made aware of, some I wasn't
made aware of. So if there was one, then so be it.
Q. You're aware of numerous investigations----
A. Yes.
Q. ----dealing with contract illegalities specifically?
A. Yeah.
Q. Sir, when you received the call from the MOBILE BAY, was it
from the XO or from the CO?
A. CO.
459
Q. Are you sure it was from the CO and not the XO, sir?
A. Yes. He identified himself as the Commanding Officer of
the MOBILE BAY and told me his name and I was familiar with his name.
Q. You had issued a military protective order to Lieutenant
Commander Penland before this meeting and it had expired, correct,
sir?
A. That's correct.
Q. Is it possible that since this meeting occurred over a year
ago your memory is somewhat fuzzy and she was denying contacting
Lieutenant--Lieutenant Commander Penland was denying contacting Chief
Wiggan during the MPO which would have been----
A. No.
Q. ----a violation of the order?
Is it possible that she was denying calling and harassing
her but not calling her?
A. No.
Q. How many times did she deny it? Did she deny it once to
the question or did she just once vehemently deny it?
A. It was a vehement denial and it went on. She probably
denied it a couple times.
Q. But it was all----
A. It was kind of a same string of denial. I mean, it was----
Q. She wasn't being interrupted; she went one long string of
denial that included multiple denials?
460
A. Yeah. Then I said "Are you denying you called her?" She
said, "Yes, I am." So that's why I say you could probably throw a
couple of them in there.
Q. And you hold--despite all these complaints, these
complaints haven't caused you to hold any ill will towards Lieutenant
Commander Penland?
A. I find Commander Penland's behavior as a Naval officer less
than any of us I think would expect of somebody of her rank and
seniority. So I said from that perspective as an ex-Naval officer I'm
disturbed by the way she behaved and the way she conducted herself.
Q. But do you hold any ill will because of these complaints
she's made?
A. There's nothing I can do about the complaints. So I guess
to were they bothering me, they were bothering my command at the time.
We were having to spend a lot of time answering a lot of questions for
what I would expect or what I thought were, you know, charges that
really had no merit to them. I think the Government of the United
States spent a lot of time spending a lot of money investigating all
of the complaints that she offered. So in that perspective, I was
bothered professionally again. I have no ill will against her
personally.
Q. Are you aware that the IG complaints are still open against
the command?
A. Well, they may be open because she asked for an appeal on
them, but I think generally in most people's mind they're closed.
461
IMC: Thank you, sir.
WIT: Sure.
IMC: No further questions.
MJ: Redirect?
TC: Sir, just real briefly.
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. They touched on IG complaints. As far as you know, is the
equal opportunity complaint, has that been resolved?
A. I have no idea because I'm--again, I'm not in the Navy
anymore, so I really had no visibility on what's the status of the
complaints are. I get--people tell me things periodically, but I
don't get current updates on them, so I really have no idea what the
status is.
Q. Are you aware to date if any of these complaints have been
substantiated in any way?
A. None of them have been.
TC: Thank you. No further questions.
MJ: Captain Callahan?
IMC: Nothing further. Thank you, Your Honor.
MJ: Questions from our members? Affirmative response from
Commander Good. Negative response from the other members.
Bailiff, if you would retrieve the question and bring it to
our court reporter who will mark it as the next appellate exhibit in
order. And then provide the question to the counsel.
462
[The question from CDR Good was marked as AE XLI and provided to
counsel for both sides for their inspection.]
MJ: Thank you. Let the record reflect that counsel are
reviewing question, Appellate Exhibit XLI.
[The bailiff handed AE XLI to the military judge for questioning.]
MJ: Thank you.
EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q. Questions from Appellate Exhibit XLI: Captain, a previous
witness, Commander Masi, indicated that the purpose of the 23 February
2007 meeting with Lieutenant Commander Penland was to issue an LOI.
Was an LOI issued on this or any other issues during this session?
A. No. The LOI was actually issued subsequent to this
meeting.
Q. Second question: Sir, you characterized Lieutenant
Commander Penland as the supply officer, but implied that she had
Commander Masi as her department head over her. Commander Masi
previously characterized her as assistant supply officer. Could you
please clarify her billet title and status, and was she a full
department head?
A. We have a logistics officer and a supply officer. The
logistics I considered was Commander Masi. The supply officer worked
for Commander Masi. In that regard, you know, how they termed each
other, she essentially de facto was the assistant supply officer.
463
MJ: Thank you, sir.
Follow-on questions in light of those?
TC: None from the Government, sir.
IMC: Briefly, if I may, Your Honor.
MJ: Very well.
RECROSS-EXAMINATION
Questions by the individual military counsel:
Q. Her title was, in fact, that of supply officer. She just
answered to Commander Masi, correct, sir?
A. Yeah. Whatever they called each other, I didn't get
involved in that. You know, if that's what he called her, then I
thought of her of supply officer. I thought of him as logistics
officer.
IMC: Yes, sir. Thank you, sir.
WIT: You're welcome.
IMC: Thank you, Your Honor.
MJ: Lieutenant Commander Messer, anything further?
TC: No, sir.
MJ: Follow-on questions from any member? Negative response
from all panel members.
[The witness was duly warned, temporarily excused and withdrew from
the courtroom.]
MJ: And I am now returning Appellate Exhibit XLI to our court
reporter. Further evidence on the merits of your case, Lieutenant
Commander Messer?
464
TC: Yes, sir. At this time the Government would call
Lieutenant Commander Thomas Moninger to the stand.
MJ: Very well. Bailiff, if you would please call the witness
on behalf of the court.
[The bailiff retrieved the witness.]
LIEUTENANT COMMANDER THOMAS P. MONINGER, U.S. Navy, was called as a
witness for the prosecution, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. For the record, could you please state your full name,
spelling your last.
A. My full name is Thomas Patrick Moninger. Last name is
spelled M-O-N-I-N-G-E-R.
Q. And, Commander Moninger, what is your current duty station?
A. I'm currently assigned temporarily to the Bureau of Naval
Personnel. I previously was the executive officer on USS PRINCETON,
have detached and am en route to the Naval War College.
Q. Commander, how long have you been in the Navy?
A. I've been in the Navy 14 years and in that time I've served
on two destroyers, two aircraft carriers, PRINCETON, and one shore
command.
Q. Do you know the accused in this case, Lieutenant Commander
Penland?
A. I do.
465
Q. Do you recognize her here today?
A. I do.
Q. Could you just please indicate where she is or identify----
A. She is--she's seated right here [pointing to accused.]
TC: Let the record reflect that the witness has identified
Lieutenant Commander Penland.
MJ: Very well.
Q. How is it that you know Lieutenant Commander Penland?
A. Well, prior to the court proceedings, I've met her twice.
The first time was when USS PRINCETON was in San Francisco in 2006.
This was for San Francisco Fleet Week. I walked into the wardroom and
saw her with--speaking with Lieutenant JG Wiggan, and Lieutenant JG
Wiggan introduced me to her. It was an unremarkable conversation and
that was the first time I met her.
Q. Was she attached to USS PRINCETON at the time?
A. She was not. The--her capacity, as I understood it, was
that her organization was providing some sort of security protection
for the fleet during Fleet Week in San Francisco and that was what
brought her up there.
Q. Do you know the nature of her visit in San Francisco?
A. I can't--I can't speak to it. I thought it was associated
with her--with the force protection associated with the visit, but it
looked like it was a personal call on Lieutenant Wiggan.
Q. Was she in uniform at the time?
A. She was not.
466
Q. Do you remember what day of the week when you saw her?
A. I do not. I do--I do not remember.
Q. Was it during working hours?
A. It was--because when we were in San Francisco, the intent
was for the crew to see the--to see San Francisco and to be part of
the festivities, it was a liberty port and so I--so the day of the
week didn't really matter. It did not surprise me that there would
be--that officers would be in the wardroom in civilian attire.
Q. When was the next time you saw Lieutenant Commander
Penland?
A. The next time I saw Lieutenant Commander Penland was on
board USS PRINCETON approximately some time in late February of last
year and the circumstances--that's the last time I saw her.
Q. Under what circumstances?
A. Well, I was informed by the chief engineer, Lieutenant
Commander Murphy, that she wished to--that she was on the quarterdeck
or on the ship and wished to speak to myself or the commanding
officer.
Q. Do you remember approximately what time that was during
that day?
A. This was in the afternoon. I do know that Lieutenant
Commander Murphy had difficulty getting--getting--speaking with me
because we were conducting captain's mast in the afternoon. We had--
it was in between cases when he was able to--when he was able to tell
me that Lieutenant Commander Penland was on the quarterdeck waiting,
467
wanting to speak to either him or myself, and I said that we were--
mast was going to go on for a while and she needed to wait and I
suggested that she wait in the wardroom until I was finished.
Q. What was the ship's schedule at that point? Were you
scheduled to get underway soon?
A. We were. It was a busy week and on Monday it was--this was
a Friday, and on Monday we were supposed to get underway. There were
a lot of details to take care of and, in particular, captain's mast
never goes quickly and so that was--so I knew that was going to
consume the bulk of the afternoon.
Q. Were you certain it was a Friday that you saw her on board
the ship or----
A. I thought it was a Friday.
Q. The--had that been the first time that day that she had
been to the ship to see you?
A. That was--that was the first time I was informed that she
wanted to speak with me. I know that she--I know that originally, and
I learned this after the fact, that the chief engineer tried to
resolve whatever issue that she had and she demanded to speak with
myself or the Captain and wouldn't leave until that occurred.
Q. And what was the issue that she wanted to speak to you
about?
A. The issue, and I learned this after I sat down with her,
and I did after--when my schedule allowed, I had the Chief Engineer
and Lieutenant Commander Penland in my stateroom and she--she came on
468
board to inform me that Lieutenant--that she was--she was stating that
Lieutenant JG Wiggan had stolen some jewelry from her and she wanted
me to know about it and I suspect take action.
Q. Do you remember how much jewelry she alleged was stolen?
A. It was a substantial amount of money. It was several
thousand dollars.
Q. Now, Lieutenant JG Wiggan, was he attached to the
USS PRINCETON at that time?
A. Lieutenant Junior Grade Wiggan was attached to PRINCETON at
the time. He was serving as the main propulsion assistant, a division
officer job working for Lieutenant Commander Murphy, the chief
engineer.
Q. And Lieutenant Commander Murphy, as the CHENG, worked for
you?
A. That's correct.
Q. So who was present at this meeting you had with Lieutenant
Commander Penland?
A. It was Lieutenant Commander Penland, Lieutenant Commander
Murphy and myself.
Q. And how long did that meeting last?
A. It was--it was approximately 15 minutes to a half an hour.
Q. And where did it occur?
A. It occurred in my stateroom.
Q. And were you in uniform of the day?
A. I was.
469
Q. And Commander Murphy?
A. He was.
Q. What uniform was Lieutenant Commander Penland in?
A. Lieutenant Commander Penland was not in uniform. She was
in civilian clothes, and that struck me as odd.
Q. Why did that strike you as odd?
A. Well----
IMC: Objection. Relevance.
MJ: Commander Messer?
TC: Well, sir, the accused has been charged with conduct
unbecoming. I think the--all the details of this meeting, including
if whether she was in uniform and whether--what the opinion was of the
witness as to whether that was appropriate or not is relevant to the
charge.
IMC: Sir, the opinion of the witness as to whether or not what
she's doing is conduct unbecoming or professional or not is certainly
not proper to be given to the members. Sir, the members are to
determine whether or not the conduct in question was conduct
unbecoming, not for the witness.
TC: Sir, I've laid a foundation. This witness has extensive
military experience, Naval experience, and would be able to form an
opinion as to whether he thought that was appropriate conduct under
the circumstances.
MJ: Are you offering him as an expert in the area of officer
conduct?
470
TC: No, sir.
MJ: I'll allow it as to the witness' personal impressions.
Overruled.
Q. Commander Moninger, you can answer the question as to why
you thought it was odd.
A. I thought it was odd that--I thought it was odd that
someone would demand to see the executive officer or the commanding
officer and to do so during work hours on a war ship out of uniform.
Q. Did you feel that this was the appropriate way for
Lieutenant Commander Penland to raise this issue?
A. I did not. I felt that--I felt that she was addressing a
personal matter with me and I didn't think that the executive officer
of another command would be the first person that I would go to if I
had a similar problem. I would have expected her to address this to
her chain of command first.
Q. Did you feel that her rank played any part in the reason
why she was requesting the meeting?
A. I believe it did. I know it got her on the quarterdeck and
then there was reluctance to tell her to leave because she was a
lieutenant commander. I would not have provided the same opportunity
to somebody of a--I would have hoped that someone in the chain of
command would have been able to resolve--below me would have been able
to resolve whatever the grievance was before it got to me had it been
an individual of a lower pay grade.
471
Q. I want to talk to you a little about the details of that
conversation. What exactly did Lieutenant Commander Penland tell you
with respect to the missing jewelry?
A. She said that it was--that she discovered it was stolen
from her apartment. I asked how--I asked how would--how would
Lieutenant JG Wiggan have been able to steal it from the apartment,
how would he--did he break in, and she informed me that he had a key.
And so at that point I said, "So he's able to get in and
out of your apartment, you've given him a key?" "Yes." "Well, what
leads you to believe that it was stolen?" "Well, it's not there."
"Well, where do you think--are you alleging that it's on board? Do
you"--you know, that's sort of what I thought she was driving at was
she wanted some action taken by me. I asked her, "What did you want
me to do, because I have no intention of searching his stateroom based
on this."
And then I suggested to her that if she felt that this was
stolen, that she should file a charge with the police, with her
command, and I asked her if she was filing a charge with me and she
said no.
Q. Did you inquire into the status of her relationship with
Lieutenant JG Wiggan?
A. I did not. This event occurred after I had received a
phone call from the executive officer of MOBILE BAY, Lieutenant
Commander Bufkin [ph]. She--that had occurred earlier.
IMC: Objection. Hearsay.
472
MJ: Lieutenant Commander Messer?
TC: Sir, as of yet the witness has not made a statement. If
the witness were to state what the XO said, it would be offered for
effect on the listener, not to the truth of the matter.
MJ: Objection sustained.
Q. The question was initially what was the--if you had
inquired into the status of the relationship. Did you?
A. I did not.
Q. And were you aware of Lieutenant JG Wiggan's marital status
at that time?
A. I was.
Q. And was he married to someone else at that time?
A. He was.
Q. And do you know who that person was?
A. That person was the career--command career counselor on the
MOBILE BAY.
Q. And how did you know that?
A. I knew that because, first of all, I was aware that he was
married to an enlisted Sailor on board MOBILE BAY. It's just
something in the course of my business I had learned. And
additionally, I had a received a phone call from the executive officer
of MOBILE BAY telling me that----
IMC: Objection. Hearsay.
MJ: Sustained.
473
Q. Let's move on. Was there anything else told to you by
Lieutenant Commander Penland during that conversation?
A. The conversation was in general that he had stolen
something, that she wanted me to know about it and she was not
pressing charges with me, so to speak, and then--well, then I asked
her--I asked her if she had anything else that I needed to know about
and she said no. I asked her that if she ever wanted to come back to
PRINCETON, that she needed to talk to me first and then I asked that
the chief engineer escort her off the ship.
TC: May I approach, sir?
MJ: You may.
TC: I'm retrieving what has been previously marked as
Prosecution Exhibit 17 for identification.
MJ: Very well.
TC: I'm showing Prosecution Exhibit 17 for identification to
defense counsel [showing PE 17 for ID to Defense].
And I'm handing Prosecution Exhibit 17 for identification
to the witness [handing PE 17 for ID to the witness].
Q. Commander, do you recognize that?
A. [Reviewing PE 17 for ID.] I do. It's an e-mail. It's an
e from me to Lieutenant Commander Penland.
Q. And what is below the e-mail from you to Lieutenant
Commander Penland?
A. What it is is a reply to an e-mail I received from
Lieutenant Commander Penland and it's--she sent me an e-mail. I guess
474
this is on a Friday. So perhaps the discussion that I referred to
occurred the day before. She says that she wants to extend an apology
because she found the--after an exhausting search, she found the bag
with the missing contents and she assumed that Mark had taken it, but
her assumptions were wrong. Mark is Lieutenant JG Wiggan.
"Appreciate the time that you and Lieutenant Commander
Murphy took during your busy schedule and I'd like to extend my
personal apologies to you, Lieutenant Commander Murphy and Lieutenant
Junior Grade Wiggan and hope that I didn't cause any inconvenience to
your command. I also apologize for any embarrassment or shame I may
have caused to Lieutenant JG Wiggan and hope that this personal matter
does not cause you to lose confidence in his ability to perform his
job as MPA."
Q. Now, to the best of your recollection, is that an accurate
depiction of the e-mail you received from Lieutenant Commander Penland
on the 23rd of February?
A. It is.
Q. And this e-mail doesn't appear to be altered in any way?
A. It does not. I forwarded--I responded to her that I
appreciated her telling me that.
TC: Sir, at this time I would offer into evidence Prosecution
Exhibit 17 for identification and ask that the words "for
identification" be deleted.
MJ: Objection from the Defense?
IMC: No, Your Honor.
475
MJ: There being no objection, Prosecution Exhibit 17 for
identification is now admitted into evidence. The words "for
identification" will be stricken by our court reporter and you may
publish the exhibit at an appropriate time.
TC: Thank you, sir.
Q. Just one more follow-up question, Commander. Why do you
believe Lieutenant Commander Penland apologized in the e-mail?
IMC: Objection. Speculation.
MJ: Lieutenant Commander Messer?
TC: Well, sir, it's the witness' personal recollection or
opinion as to his impression of the e-mail.
MJ: Why is that relevant?
TC: Well, it goes to the conduct unbecoming charge, sir.
IMC: Again, sir, we're not dealing with his impression or
recollection from seeing somebody in their demeanor. It's a paper
e-mail. The members are equally capable of looking and determining an
intent from a paper e-mail as the witnesses.
MJ: Objection sustained.
Q. Did you share this e-mail with anyone else when you
received it, Commander?
A. I did. I informed the commanding officer of the e-mail.
I'm not sure if I forwarded it to him or printed it out and allowed
him to read it.
TC: Thank you very much. I have no further questions.
Sir, I'm retrieving what has been entered into evidence as
476
Prosecution Exhibit 17 and I'm returning it to the court reporter.
MJ: Thank you.
Captain Callahan, questions for the witness?
IMC: Yes, please, Your Honor.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good morning, sir.
A. Good morning.
Q. Sir, Lieutenant Commander Penland was polite and cordial
the entire time she was dealing with you, wasn't she?
A. That is correct.
Q. And when you told her to leave the ship with Lieutenant
Commander Murphy, she left the ship?
A. She did.
Q. Did you at any time before that, order her to leave the
ship?
A. I don't believe I did.
IMC: Thank you, sir.
No further questions, Your Honor.
MJ: Lieutenant Commander Messer?
TC: No further questions, sir.
MJ: Questions from our members? Negative response from all
panel members.
[The witness was duly warned, temporarily excused and withdrew from
the courtroom.]
477
MJ: Why don't we take a brief recess here. Members, if you
would please cover your notes. Subject to my standard instructions,
you may take a recess. Please reassemble at, oh, let's reconvene at
1000 hours.
BAILIFF: All rise.
[All persons did as directed.]
MJ: Court stands in recess. The members may depart.
[The members withdrew from the courtroom.]
MJ: Carry on.
[The court-martial recessed at 0945 hours, 22 May 2008.]
[The court-martial was called to order at 1007 hours, 22 May 2008.]
MJ: Bailiff, please ask the members to join us.
BAILIFF: Yes, sir.
MJ: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: Court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others may be seated.
[All persons did as directed.]
MJ: Further evidence from the prosecution on the merits of its
case?
478
TC: Yes, sir. At this time the Government would call Chief
Kimberly Lewis-Wiggan to the stand.
MJ: Very well. Bailiff, if you would please call the witness
on behalf of the court.
[The bailiff retrieved the witness.]
NAVY COUNSELOR CHIEF KIMBERLY LEWIS-WIGGAN, U.S. Navy, was called as a
witness for the prosecution, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Chief, for the record, could you please state your full
name, spelling your last.
A. Kim Denise Lewis, L-E-W-I-S W-I-G-G-A-N,
Q. And, Chief, what is your current duty station?
A. I'm at Naval Support Facility, Thurmont, Maryland, Camp
David.
Q. And how long have you been at Camp David?
A. I've been at Camp David approximately four months.
Q. And what was your command prior to transferring to Camp
David?
A. The USS MOBILE BAY (CG 53).
Q. How long were you on board USS MOBILE BAY?
A. Two years.
Q. How long have you been in the Navy?
A. Seventeen years.
479
Q. And just briefly for the members, what other duty stations
have you served at?
A. A lot of sea commands, so let me backtrack and let me go
forward instead of backwards. I was at NAVCOMMSTA Harold E. Holt;
that was my first duty station in Western Australia. My second duty
station was the USS HOLLAND (AS 32) in Guam. My third duty station
was National Naval Medical Center, Bethesda, Maryland. My--then after
that, I went to precomm the O'KANE (DDG 77). From the O'KANE I went
to--got to get the ships right--then I went to GUNSTON HALL (LSD 44).
From the GUNSTON HALL then I went to VFA-211 and commissioned VFA-211.
And then from VFA-211 then I went to--yeah, yeah, I think I got them
all. I'm losing track. It was a lot of ships in between, so I'm
starting to lose track of how many ships it was.
Q. Then you ended up on MOBILE BAY?
A. Yeah, yeah. Then I ended up on MOBILE BAY, from VFA-211 to
the MOBILE BAY.
Q. Do you know Lieutenant JG Mark Wiggan?
A. Yes, I do.
Q. How do you know Lieutenant JG Mark Wiggan?
A. We been--we were stationed together. We dated for
approximately two years before we got married and we were both
stationed at the O'KANE before we previously got married. And then I
went and converted to being a Navy counselor and that's when I got
stationed on the East Coast and we've been married for approximately
five, almost six years now.
480
Q. What date were you and Lieutenant JG Wiggan married?
A. It was approximately like 2000, March 2000.
TC: Sir, may I approach?
MJ: You may.
WIT: I can't remember exactly.
TC: I'm retrieving from the court reporter what has been marked
as Prosecution Exhibit 19 for identification.
MJ: Is the witness' microphone on? Counselor if you would
check. Maybe just move a little closer.
WIT: Okay.
MJ: Thank you.
WIT: No problem, sir.
TC: Correction. Prosecution Exhibit 23 for identification.
MJ: Very well.
TC: I'm showing to defense counsel what has been previously
marked as Prosecution Exhibit 23 for identification [showing PE 23 for
ID to Defense].
I'm handing Prosecution Exhibit 23 for identification to
the witness [handing PE 23 for ID to the witness].
Q. Chief, do you recognize that?
A. Oh, yes. This is our marriage certificate and for Oak
Harbor, Hawaii.
Q. How is it that you recognize that document?
A. I remember it well because we got married at lunch.
481
Q. And as far as you know, is that an accurate depiction of
that document?
A. Yes, it is.
TC: Sir, at this time I would ask that Prosecution Exhibit 23
for identification be entered into evidence and the words "for
identification" be deleted.
MJ: Objection from the defense counsel?
IMC: No, Your Honor.
TC: I'm returning Prosecution Exhibit 23 to the court reporter.
MJ: There being no objection, Prosecution Exhibit 23 for
identification is now admitted into evidence and the words "for
identification" will be stricken by the court reporter, and you may
publish the exhibit at an appropriate time.
TC: Thank you, sir.
Q. Now, Chief, were you married to Lieutenant JG Wiggan on
September 2006?
A. Yes, I was.
Q. And were you still married to him on January of 2007?
A. Yes, I was.
Q. And were you married to him during that entire period of
time between September 2006 and June 2007?
A. Yes, I was.
Q. Are you still married to him now?
A. Yes, I am.
482
Q. Have you started divorce proceedings?
A. Yes, I have.
Q. And what's the status of those proceedings?
A. We go to settlement court next month.
Q. And to your--the best of your understanding, the divorce
has not been finalized?
A. No, it has not.
Q. And why do you believe that?
A. We did a bifurcation which was to expedite the divorce, but
his lawyer did not process all the paperwork properly, so it was never
filed properly. So that held up the process. But it has been signed,
we're trying to move forward with it. His lawyer didn't do the
paperwork right, so now we're going to be at settlement court and that
should be the end of it.
Q. And where did you file for divorce?
A. San Diego.
Q. So those hearings are taking place here in San Diego?
A. Yes, they are.
Q. Do you know Lieutenant Commander Penland, the accused in
this case?
A. Yes, I do.
Q. Can you identify her for the court.
A. She's sitting right there [pointing to the accused].
TC: Let the record reflect that the witness has identified the
accused.
483
MJ: Very well.
Q. How is it that you know Lieutenant Commander Penland?
A. I know Lieutenant Commander Penland via a phone
conversation when she at first identified herself to me on the ship as
Lieutenant Commander Finland.
Q. Okay. We'll get into that in a minute.
Did--to the best of your knowledge, did your husband,
Lieutenant JG Mark Wiggan, know Lieutenant Commander Penland?
A. Yes, he did, as a matter of fact.
Q. How did he know Lieutenant Commander Penland?
A. They used to be stationed on the USS STOUT when he was a
chief petty officer and she was a supply officer on board there.
Q. Do you remember what time frame that was?
A. That was like--that was when I was at 211, so that was
over--that was like over two years ago, two-three years ago. I can't
remember. Like I said, I get all the ships----
Q. Was it before you were stationed on USS MOBILE BAY?
A. Yes. It was when I was at the squadron at VFA----
Q. Was it before your husband was stationed on--well, what
duty station was your husband stationed on when you were here in
San Diego?
A. He was stationed on the PRINCETON.
Q. And was that before USS PRINCETON?
A. Yes. It was the duty station before the PRINCETON. That
was the STOUT.
484
Q. And to your knowledge, did Lieutenant Commander Penland
know that you were married to Lieutenant JG Mark Wiggan?
IMC: Objection. Speculation.
TC: Sir, I can--I'll lay a foundation and then ask the
question.
MJ: Very well.
Q. Did you ever have any conversations with Lieutenant
Commander Penland as to your relationship with Lieutenant JG Mark
Wiggan?
A. When he was on the STOUT or when----
Q. No. At any time. You had just begun to testify that you
didn't know Lieutenant Commander Penland during that time, correct?
A. No. I never met her because I was on the squadron. I was
at VFA-211. We were embarked aboard the USS ENTERPRISE, so I checked
on there from the GUNSTON HALL. Then within two months I went on
deployment again. So I never--I never met her the entire time he was
on the STOUT because I was actually deployed a lot at that time.
Q. I'll come back to the question as to whether you believe
Lieutenant Commander Penland knew you were married to Lieutenant JG
Wiggan.
I'd like to now move up in time to when you were on board
USS MOBILE BAY. Did you ever deploy on the MOBILE BAY?
A. Yes, I deployed on the MOBILE BAY, sir.
Q. When--what were the dates of that deployment?
A. I checked in in December. We deployed in March.
485
Q. March of what year? 2006?
A. Yes, it was 2006. I've got to count backwards.
Q. And when did you return from deployment?
A. March we--we returned to Hawaii in July. The first time we
pulled in was July because we were there for RIMPAC.
Q. Okay. And at that time, did you meet your husband?
A. Yes, I did. He came to Hawaii. We had set up to meet each
other in Hawaii.
Q. And how did things go on that visit?
A. We were going pretty good up until the very last day when
it was time for us to go back underway.
Q. And what happened?
A. He started an argument about "You picked this ship so we
wouldn't spend any time together," and I was like no, this was the
only place I could get orders to so we could be spouse co-located at
the time because there was actually no shore duty billets for a Navy
counselor in the area when I fell in my window.
Q. So you--you weren't getting along towards at the end?
A. At the very--we were getting along all the way up till
then, but the only thing was I had just found out when we pulled in
that my cousin had died of throat cancer and my aunt had just been
diagnosed with breast cancer. So I was really upset about the two
situations happening back-to-back, so I wasn't in--which should have
been more of a joyous occasion because you're coming back from
deployment. I was really a little bit bummed out because I knew I
486
couldn't physically leave and go back and be with my family to help
grieve and help them get through the things that they were going
through at the time, and we had to finish out what we had to do.
Q. When you--so you saw your husband in July. When did you
see your husband again?
A. I didn't see him again until--was it August, July, August.
Because we had a tiger cruise and I flew back. I stayed for a week
because he was supposed to come back out to Hawaii with me. We were
supposed to work through some of the issues that we had talked about.
Next thing I knew he said he wasn't coming back. Now I had already
spent the money on the hotels and stuff like that, so I couldn't get
my money back. So he said, "Well, why don't you just stay out there
and get yourself together since you had the loss in your family and
get you back together and then come on back home," and then he'd pick
me up from the airport as I flew back in.
Q. So is it fair to say at this point in your relationship
with your husband things were rocky?
A. Yeah, I would say so. I would agree with that.
Q. So what happened when you returned to San Diego?
A. Well, when I returned to San Diego, he picked me up from
the airport and we drove home. So as we were coming home, which is--
we live 77 miles--we lived in--we live in Menifee, California, so it
was a 77-mile drive. So I get home. As we're driving up, I see a
"For Sale" sign in my front yard. I'm like, "Who put the house up for
sale? Are you moving? You got orders somewhere?" I don't know
487
nothing. He's like, "This is what you wanted." I'm like, "No. I
don't remember that conversation. I don't remember us talking about
that." And then I had no clue what was going on. I came in the door.
He threw divorce papers at me. And I can't lie; the first thing I
noticed was a typo on the paper.
Q. So at that point in time, this is August of '06, your
husband had indicated to you that he wanted to get a divorce?
A. Yes, this is when he--this is when I first got notification
of it. I had no real inkling of it before.
Q. And then at that point did he move out?
A. He left. He said, "Well, I'll be back." He left. "I'll
be back to get my stuff."
Q. And when did he return?
A. He returned the next month.
Q. When was that approximately?
A. That was like October.
Q. Is it possible it could be around mid September?
A. It could be mid September-October time frame, because it
was in between. And he came back and I didn't know where he was at.
I mean, I kind of gathered because his ship was on a similar schedule
to my ship because we were cruisers and, as you say, cruisers are
constantly gone. So we were going in and out, in and out, in and out,
in and out. So I'm not really sure, you know, as to his location
where he was living, but I pretty much thought he was on the ship
because they were going out, just in and out just as much as we were.
488
Q. When he returned to you in mid September, what was--did he
want to reconcile?
A. Yes. He said, "I want to work through this. I made a bad
mistake and I shouldn't have gave you the papers the way I did." He
said, "I shouldn't have did things the way I did. I had time to think
about it while, you know, I was going in and out." So I said, "All
right." I said, "I will only agree if we go to like 90 days of
marriage counseling," and he said, "Well, how about 30?" I said,
"Okay. I'll meet you in the middle. How about 30?" And so we
started going to marriage counseling in North Island.
Q. So at that point you were willing to try to make things
work in the marriage?
A. Yes, sir, I was.
Q. And it seemed like he was interested in trying to reconcile
also?
A. Uh-huh. Yes, sir.
Q. What happened next? Did you receive any strange phone
calls?
A. Yeah. I was at work one day and I received a phone call
and said----
Q. And what was the phone call about?
A. It was--the person on the phone identified themselves,
said, "I'm Lieutenant Commander Finland."
489
Q. Was that a female voice or a male?
A. It was a female voice. It was a female voice. And so I'm
like, "Okay. Can I help you, ma'am? What can I assist you with?" So
I'm thinking I'm getting a call from maybe a detailer in regards to
somebody's orders that I'm working on or, you know, something like
that to that effect. She was like, "Do you want to know about your
husband?" And I'm like I'm thinking now I get a strange phone call do
I want to know about my husband. Wow. Did he get hurt? Did he get
injured? Did something happen to him? Oh, my God. All these things
are going through my mind when I hear "Do you want to know about your
husband?" So, you know, and I was like wow. And then she starts
going in effect your husband's been having an affair, da-da-da-da-da
with me and blah, blah, blah. And I made--and I live to regret saying
this to this day. I made the stupid mistake of saying--because my mom
always says this--"No pictures, no proof, no videotape, I don't
believe anything anybody tells me without proof."
Q. So you asked her for proof?
A. Pretty much. But I'm like thinking I really won't get
anything.
Q. Approximately how long did that phone call last?
A. I don't know. It was a couple--I'm not really sure how
long it lasted. Because I was in the admin office, so I had to really
hurry up and try to get off the phone because I was tying up the only
phone line to the ship's office.
490
Q. Do you remember the date of that phone call?
A. Not off the top of my head, no, sir. It was while--it was
so long ago.
Q. And when--what else was discussed in that phone
conversation other than this person was having an affair with your
husband? Was anything--or I should say was anything else discussed?
A. No. That was pretty much the gist of the whole
conversation just was to my recollection.
Q. So after that conversation, what happened next?
A. The next thing I know I got an e-mail on my personal e-mail
account and then the e-mail was as per something I think--as per our
conversation or something or is this the right number to--is this the
right e-mail address to contact you at.
TC: Sir, at this time I request permission to approach.
MJ: Very well.
TC: I'm retrieving what has been marked as Prosecution
Exhibit 6 for identification from the court reporter. I'm showing
Prosecution Exhibit 6 for identification to defense counsel [showing
PE 6 to Defense].
I'm handing Prosecution Exhibit 6 for identification to the
witness [handing PE 6 for ID to the witness].
Q. Chief, do you recognize that?
A. [Reviewing PE 6 for ID.] Oh, yeah.
Q. What is it?
A. It was the making contact e-mail from the----
491
Q. Is that the e-mail that you----
A. Uh-huh.
Q. ----previously referred to?
A. Yes, it is, sir.
Q. Does that e-mail look like it did when you received it in
your Hotmail inbox?
A. Yes, it does.
Q. And has the e-mail been altered in any way?
A. No. Looks just like this.
Q. And what did you do with that e-mail when you received it?
A. I just left it on my hotmail account.
Q. Did you eventually print it out?
A. I did when I--when eventually way, way down the line. It
was a long time later that I did print it out.
Q. And when you printed it out, is that what the printout
looked like?
A. Yes, it is.
Q. So, in essence, that is the same printout that you printed
out?
A. Yes, sir.
TC: Sir, at this time I'd offer what has been marked for
identification as Prosecution Exhibit 6 into evidence and ask the
words "for identification" be deleted.
MJ: Objection from the Defense?
IMC: No, Your Honor.
492
MJ: There being no objection, Prosecution Exhibit 6 for
identification is now admitted into evidence. The words "for
identification" will be stricken from our court--by our court
reporter, and you may publish the exhibit at an appropriate time.
TC: Sir, I'd request now that the exhibit be published to the
members.
MJ: Very well. And you're going to do that through the use of
the Elmo?
TC: That's correct, sir.
MJ: Members, your computer screens should be activated. If
they are not, please raise your hand.
[PE 6 was published electronically to the members and witness.]
MEMBER [CDR TUCKER]: Can you rotate it 90 degrees to the right?
MJ: And that was a question from Commander Tucker and other
members. I think we need a little focus, too, Commander.
Members, you'll also receive the actual exhibit when you
deliberate.
TC: Can all members see that fairly accurately?
[All members indicated affirmative responses.]
Q. Chief, can you see the exhibit on the television screen
there in front of you?
A. Yes, sir.
Q. So you testified that this was the e-mail you received.
What did you believe the purpose of this e-mail was?
IMC: Objection. Speculation.
493
Q. Well, you just had a phone conversation--
TC: Sir, may I be heard?
MJ: You may.
TC: The witness has just testified that there was a phone
conversation. I'm just merely trying to elicit testimony from her
that this was a--she believed this was the same person that had
contacted her on the phone and this was a follow-up e-mail.
MJ: Overruled.
Q. What do you believe the purpose of this e-mail was? And
you can move that screen so you can see it while you're testifying
there.
A. Well, since I didn't know who this e-mail was from, I just
thought it was somebody playing with me, that, you know, playing with
me as my e-mail because I know I never gave my e-mail address to
anybody other than people that I know. So when I got the e-mail, I
said maybe the wrong person or maybe it was the person that called me.
I really wasn't sure. So I didn't respond back.
Q. So this Lewis--this e-mail address where you received this
e-mail, [email protected], that was a personal e-mail address?
A. Yes, it is.
Q. And the person--the e-mail is entitled "the other woman."
Did you have any idea at that time who this person was that was
e-mailing you?
A. No, I didn't.
494
Q. Did you see any connection between the phone call you had
received a few days before and this e-mail?
A. Thought it could have been connected, but I wasn't really
sure. And I said maybe they just sent it to the wrong person, too,
so, you know.
Q. What happened next?
A. The next thing I remember, I think I got another phone call
and then I got the second e-mail with----
Q. Let's talk about that second phone call. Where did that
phone call occur?
A. I think it was on the ship again.
Q. And how close in proximity to this e-mail was the call
received?
A. They were all pretty close. Everything was all kind of
back-to-back-to-back, sometimes a little sporadic, but a lot of it was
close together.
Q. And in that second call you received, did you recognize the
voice to be the same voice that you talked to the first time?
A. Yes, sir, I did.
Q. Did the caller identify themselves in that call?
A. Still said they were Lieutenant Commander Finland.
Q. So there was no question in your mind that it was the same
person who contacted you on both occasions?
A. Yes, sir.
495
Q. In that second phone conversation, what was discussed?
A. Went back to I said the same--I think I said the same
stupid line again. I said "If this is really for real, like I stated
before, if there's no pictures, no proof, no videotape, no evidence, I
don't want--I don't really believe it and I don't--you know, I'm not
even buying into it."
Q. Did you--was there any reference in that phone conversation
by the caller to this e-mail that you had received previously from the
other woman account?
A. No, huh-uh.
Q. So there was no--the caller didn't ask you if you had
received the e-mail?
A. No, huh-huh.
TC: Request permission to approach, sir.
MJ: Very well.
TC: I'm retrieving--I'm retrieving what has been pre-marked as
Prosecution Exhibit 7 for identification from the court reporter. I'm
showing Prosecution Exhibit 7 for ID to the defense counsel [showing
PE 7 for ID to Defense].
I'm now handing Prosecution Exhibit 7 for identification to
the witness [handing PE 7 for ID to the witness].
Q. Chief, do you recognize that?
A. [Reviewing PE 7 for ID.] Oh, yeah.
Q. What is that?
A. This is another e-mail, the next one.
496
Q. And when was that e-mail received?
A. September 28th.
Q. Okay. And who was that e-mail from?
A. From--still from "the other woman."
Q. And does that document that you're holding in your hand
there look to be the same representation as that e-mail you received
on that date?
A. Yes, it is.
Q. And did you print out that e-mail some time later after
receiving it?
A. Yes, I did.
Q. Does that document appear to be the printout that you
printed out?
A. Yes, sir.
TC: Sir, at this time I'd offer Prosecution Exhibit 7 for
identification into evidence and ask the words "for identification" be
deleted.
MJ: Objection from the Defense?
IMC: No objection, Your Honor.
MJ: There being no objection, Prosecution Exhibit 7 is now
admitted into evidence and the words "for identification" will be
stricken by the court reporter, and you may publish the exhibit as you
desire.
TC: Sir, I desire to publish the exhibit now.
MJ: Very well.
497
TC: I'm placing it on the Elmo.
[PE 7 was published electronically to the members and witness.]
Q. Chief, can you see the document in front of you there?
A. Yes, sir.
Q. Now, what was unique about this document?
A. It says as per my request seeing is believing and that's
when I got an eyeful.
Q. Okay. So did you open the attachments to this e-mail?
A. Yes, sir, I did.
Q. And what did you see when you opened the attachments?
A. I saw my spouse fully erect and looking like he had just
had a great time.
TC: Sir, at this time I request permission to approach.
MJ: Very well.
TC: I'm returning Prosecution Exhibit 6 and Prosecution Exhibit
7 to the court reporter and I'm retrieving Prosecution Exhibit 8 for
identification from the court reporter. I'm showing Prosecution
Exhibit 8 for identification to the defense counsel [showing PE 8 for
ID to Defense].
I'm handing Prosecution Exhibit 8 for identification to the
witness [handing PE 8 for ID to the witness].
Q. Chief, do you recognize that?
A. [Reviewing PE 8 for ID.] Yes, sir.
Q. What there--what do you have there in front of you?
A. Pictures of my spouse.
498
Q. When you say pictures, how many?
A. Two pictures to be exact.
Q. And are those two pictures the same pictures that you saw
when you opened the attachments to the e-mail?
A. Yes, sir.
Q. And those are accurate depictions of those pictures you
saw?
A. Yes, sir.
Q. Do they appear to be different in any way?
A. No, sir.
TC: At this time, sir, I'd offer Prosecution Exhibit 8 for
identification into evidence and ask that the words "for
identification" be deleted.
MJ: Objection from the Defense?
IMC: No objection, Your Honor.
MJ: There being no objection, Prosecution Exhibit 8 for
identification is now admitted into evidence and the words "for
identification" will be stricken from the exhibit by our court
reporter, and you may publish the exhibit at an appropriate time.
TC: Sir, I'd like to publish the exhibit now. This contains
sexually graphic material. I don't know if it's appropriate for the
gallery to view it or not.
MJ: Lieutenant--do you have a request of the Court, Counselor?
TC: I just raise that issue with the Court, sir. I'm prepared
to publish the exhibit to the members, but----
499
MJ: Very well. You may do so.
TC: Aye, sir.
MJ: Very well.
[Part one of PE 8 was published electronically to the members and
witness.]
Q. Chief, if you could just look on the video screen there.
Who is that in that photo?
A. That's my spouse, Lieutenant JG Wiggan.
Q. And you're certain of that?
A. Yes, sir.
Q. How is it that you recognize him as your husband?
A. I've been married to him for a long time.
Q. Do you recognize the location where that photo was taken?
A. No, sir.
Q. Did you take that photo?
A. No, sir.
Q. Do you have any idea who took that photo?
A. Sir, when I looked at the photo and saw the photo, very
embarrassed, number one, and still embarrassed to this day; but as I
clicked the photo and I moved the mouse on it, a name popped up on it.
Q. We'll get to that in a minute. I just want to cover the
photo. Let me show you the second part, part two of two of
Prosecution Exhibit 8.
[Part two of PE 8 was published electronically to the members and
witness.]
500
Q. Do you recognize that photo?
A. Yes, sir.
Q. And is that also your husband?
A. Yes, sir.
Q. And then did you take that photo?
A. No, sir.
Q. Now, when you--after viewing these photos, what did you do?
A. After getting over the initial shock, I approached
Lieutenant JG Wiggan about the photos.
Q. Before you approached your husband about the photos, did
you notice anything with the photos on your computer that was of
interest to you?
A. Yeah. Like I said, when I was moving the mouse over the
photos, I saw a PowerPoint--you know, it was a PowerPoint and you can
see in a PowerPoint at the time, pressed it and a name popped up and
that's when I saw the name Syneeda Penland. So I'm like Syneeda
Penland?
Q. So just explain a little clearer for the court. Exactly
what were you doing when the name Syneeda Penland popped up on your
computer screen?
A. I was just moving the mouse on the PowerPoint slide because
from one to the second, because I still couldn't believe what I was
seeing and, as I hit the thing, it showed a name. So that's when--
because I never seen it do that before. I went and asked the YN1 I
was stationed with, I was like, "Hey, I see this name on this slide."
501
She didn't know what I was talking about. I said, "Do you know how
you can find out who made the slide or how or who made it--who put it
together," and she asked one of the ETs. They was like, "Oh, look at
the properties." So I never done it before, so she helped me to
figure out because I saw a name like who the author was, where did
it--who originated it.
Q. So you were on the ship when you viewed these photos?
A. Actually, when I first viewed it, I was at home; but when I
came to work, I asked her the next day "If I had a PowerPoint and I
saw a name pop up, how do you go into it and get the info off of it
where it came from?"
Q. So did--who was the person who assisted you?
A. Oh, YN1 Cunningham.
Q. And did she see these photos?
A. I showed her the two photos, yeah.
Q. And then she assisted you in viewing the properties?
A. Yes.
Q. And when you viewed the properties of the files, what did
you find out?
A. Says author Syneeda Penland, so----
Q. Did you in any way alter or change that information in the
properties box?
A. No, sir.
502
Q. So that was the information that you saw and received from
the e-mail; you didn't alter it in any way?
A. No, I didn't.
TC: At this time, sir, I request permission to approach.
MJ: Very well.
TC: I'm returning Prosecution Exhibit 8 to the court reporter
and retrieving Prosecution Exhibit 9 for identification. I'm showing
Prosecution Exhibit 9 for identification to defense counsel [showing
PE 9 for ID to Defense].
I'm handing Prosecution Exhibit 9 for identification--it
has two parts, part one of two and part two of two [handing PE 9 for
ID to the witness].
Q. Chief, do you recognize that document?
A. [Reviewing PE 9 for ID.] Yes, I do, sir.
Q. How is it that you recognize that document?
A. This still is a picture of my husband; and when we did the
property thing, it showed the name, the author, and the company which
is Home, which I guess is a home computer.
Q. Is that an accurate depiction of what you saw on the
computer screen when YN1 Cunningham helped you access the properties
of the file?
Q. Yes, it is.
TC: At this time, sir, I'd offer Prosecution Exhibit 9 for
identification into evidence ask the words "for identification" be
deleted.
503
MJ: Objection from the Defense?
IMC: No objection, Your Honor.
MJ: There being no objection, Prosecution Exhibit 9 is now
admitted into evidence. The words "for identification" will be
stricken by our court reporter, and you may publish the exhibit at an
appropriate time.
TC: Sir, I'm publishing the exhibit to the members now.
MJ: Very well.
[Part one of PE 9 was published electronically to the members and
witness.]
Q. And, Chief, just briefly, you testified that's accurate.
You--or you're not aware of anyone else besides yourself who authored
this----
A. No, sir.
Q. ----this properties? Now, before you had shown this--shown
this PowerPoint slide presentation to YN1 Cunningham, had anyone else
seen it?
A. No, sir, just me.
Q. Had you allowed anyone else control over it?
A. No, sir.
Q. So you had retained sole custody until you shared it with
YN1 Cunningham?
A. Uh-huh.
504
Q. What about after you showed it to YN1 Cunningham, did
anyone else gain control of it?
A. The only other person that saw it after that was Commander
Doud, the--oh, he was the--I think he's the legal guy----
Q. Do you remember what command he was----
A. ----from Naval Coastal Warfare Group ONE.
Q. So you provided this--and I should say not this exhibit,
but you provided the photos or the e-mail to Lieutenant--to Commander
Doud?
A. Yes, sir.
Q. Which is it that you provided, the photo attachments or the
e-mail itself?
A. It was the e-mail and the photo attachments.
Q. Besides Commander Doud have you given or forwarded this to
anyone?
A. No.
TC: And I'm also publishing to the members the second part of
the exhibit.
[Part two of PE 9 was published electronically to the members and
witness.]
Q. And just to confirm, that's the second photo; is that the
properties you saw on the second photo?
A. Yes, sir.
505
Q. Okay. So now let's--what was your actions after you saw
these photos?
A. Like I said, I talked to Lieutenant JG Wiggan about it. He
started apologizing, said he was sorry, it shouldn't have happened,
can we work it out, he was wrong for what he had done. And, like I
said, we already started talking about going to marriage counseling
and I said, "Well, if you are really sincere and we do this marriage
counseling, if this is going to work, we'll work through it. If not,"
I said, "after we finish with our marriage counseling, if it's not
going to work, we both went into this knowing, hey, we did our best,
and if we have to separate, then we separate."
Q. Now, when he was apologetic to you, was he apologizing for
the photo or was he apologizing for something else?
A. I thought it was just the photos, and then he did talk
about his relationship that he had and it was wrong and he shouldn't
have done it and "please forgive me, it will never happen again."
Q. At that point did he tell you who he was in a relationship
with?
A. He still didn't mention her name at first, and then I said
the name and then he just confirmed it by saying, "Yes, that's who it
is."
Q. Did you tell him that you had found the author of the
PowerPoint; did you pass that name on to him?
A. Yes, I did.
506
Q. And what was his reaction when you did that?
A. And he just said "I'm sorry, I'm sorry, it will never
happen again. I'm sorry."
Q. The--what did you do--once you discovered the name Syneeda
Penland, what were your actions?
A. Since I've--then I started thinking back to when I had
gotten the phone call that said Lieutenant Commander Finland. I said
"Is this person really in the military?" So once again me and YN1, we
get in the office. She's like--she was like, "Let's look at the SNDL.
If this person really exists, they're going to be in the SNDL. We'll
find them and we'll look at the--well, not the SN--we'll look for the
lineal number," she said. "So we'll go in the BUPER CD, look at the
lineal numbers. If the person really exists, we'll find the name."
So we go in the lineal numbers and there was Lieutenant Penland. So
then I'm like wow, so this is an actual real Naval officer. This is
not a joke on the phone. You know, this is not somebody playing a
joke with me on the phone. This person's real. They're really in the
military, and I was like wow.
And then that's when I remember my YNC was like, "If you
get any more phone calls"--I had already been polite. He was like,
"Make sure you're always polite and courteous on the phone." He said,
"Now that you know that this person really, really, really, really is
a Naval officer," he said, "I never want you to be disrespectful on
the phone. I don't care what she says to you. I don't care how mad
she gets you. Never be disrespectful on the phone at all," he said,
507
"because I don't know what's going on." He said, "This doesn't kind
of make sense to me, but I just don't want you to forget your military
bearing, and remember your military bearing at all times, no matter
what." He said, "I don't care how mad you get, remember you have
military bearing and you are--you signed a contract and that's your
job to be respectful to your seniors, no matter what's going on."
Q. So at that point, based on your conversations with your
chain of command, did you feel that you almost had an obligation to be
respectful to this person?
A. Yes.
Q. And to continue to take the phone calls and the e-mails and
things of that nature?
A. Well, as far as the phone calls were concerned, when they
would come in, they're coming in through my office, so different
people were answering the phone. So every time the person called and
they said they were Lieutenant Commander such-and-such, they're going
to take it as this is business, so we're always going to answer the
phone because it should be business that's coming in to the admin
office. So if I go in there and I answer the phone, I'm going to
answer the phone.
Q. So let's be clear. When you confronted your husband and he
apologized to you, did you believe your husband to be in a sexual
relationship with someone else at that point?
A. No, I didn't.
508
Q. When did you come to believe your husband was in a sexual
relationship with someone else?
A. Once I saw those pictures initially, and then the first
response for me was I did an HIV test because I'm worrying about my
health.
Q. So after you saw the attachments to this e-mail, you were
convinced your husband was having sex with someone else?
A. And he admitted to it, so----
Q. Did he--when he admitted to you that he was having sex with
someone else, did he admit who he was having sex with?
A. He said he was having sex with Commander Penland.
Q. So he confirmed----
A. Lieutenant Commander Penland.
Q. ----to you that it was Lieutenant Commander Penland that
had taken those photos?
A. He--when I asked him about who took the photos and how were
they taken, he was like it was, you know, it was them; they were
together. And I said, "Well, whose house is that?" I said, "It's not
our house. It's not our"--you know, "I was at her house. I helped
her out. She came into"--he said that they got in touch with each
other on NKO, and from the NKO, talking, and he knew her from the
STOUT and he came to help her fix some stuff in her house and then one
thing led to another and that's how the relationship began.
Q. And did this occur while you were on deployment?
A. Yes, it did.
509
Q. To your knowledge, at this time--and just for time frame,
we're now end of September, October.
A. Uh-huh.
Q. To your knowledge, was the relationship continuing at that
point?
A. From what he told me, it was over.
Q. Did he tell you when it had ended?
A. He said when he came back, he--when he came back to
reconcile, he said "It's over, we're finished, we're done."
Q. And he came back to reconcile when?
A. This was in what--this was like September-October time
frame.
Q. Do you remember when in September?
A. Not right off the top of my head, no, sir, I don't.
Q. So is it possible that, based on what he told you, did you
believe that he and Lieutenant Commander Penland were having sexual
relations sometime in the month of September?
A. They could have been, yes, sir.
Q. And he had represented to you at this time that their
relationship was over, but you later found that to--did you later find
that to be accurate, or inaccurate I should say?
A. I would say inaccurate because that's when he--that's--
later on I found out it was inaccurate, yes, sir.
TC: Request permission to approach, sir.
MJ: Very well.
510
TC: I'm retrieving what has been marked as Prosecution Exhibit
10 for identification. I'm showing Prosecution Exhibit 10 for
identification to the defense counsel [showing PE 10 for ID to
Defense].
I'm handing Prosecution Exhibit 10 for identification to
the witness [handing PE 10 for ID to the witness].
Q. Chief, do you recognize that document?
A. [Reviewing PE 10 for ID.] Yes, sir, I do.
Q. Can you please explain what it is.
A. He was--this is when I told him if he had received any
future e-mails from her and to just forward to me and let me see what
is the status. He said since he's--he was trying to reconcile. He
says, "Anything you want I'll do it. No problem. I just want us to
stay together." So he started forwarding me e-mails that she was
sending him.
Q. And this was part of an agreement between you and your
husband so that he would--being forthcoming with you?
A. Yes, to be forthcoming, to say he was on the up-and-up.
Q. And does this document look substantially the same as when
you received it from your husband?
A. Yes, it does.
Q. Has it been altered in any way?
A. Not to my knowledge.
TC: Sir, at this time I'd ask that Prosecution Exhibit 10 for
identification be entered into evidence and the words "for
511
identification" be deleted.
MJ: Objection from the Defense?
IMC: No objection.
MJ: There being no objection, Prosecution Exhibit 10 for
identification is now admitted into evidence. The words "for
identification" will be stricken by our court reporter, and you may
publish the exhibit at an appropriate time.
TC: I'm publishing it, the exhibit, to the members now, sir.
MJ: Very well.
[PE 10 was published electronically to the members and witness.]
Q. Now, there is an attachment to this e-mail. Did you view
that attachment?
A. Yes, sir, I did.
TC: Request permission to approach, Your Honor?
MJ: You may.
TC: I'm retrieving what has been marked as Prosecution Exhibit
11 for identification from the court reporter. I've retrieved
Prosecution Exhibit for identification. I'm showing it to defense
counsel [showing PE 11 for ID to Defense].
I'm handing Prosecution Exhibit 11 for identification to
the witness [handing PE 11 for ID to the witness].
Q. Chief, what is that?
A. [Reviewing PE 10 for ID.] This was a letter that she wrote
telling him that if they were to get caught, how they would get out of
it.
512
Q. Is this the attachment to that e-mail that is now being
shown on the video monitor?
A. Yes, sir.
Q. And does--take a moment to look this through. Does this
document appear to be the same document that you read when you opened
the attachment to the e-mail that was sent to you by your husband?
A. Yes, sir.
Q. Why is it that you believe that this----
TC: At this time, Your Honor, I'd ask that Prosecution
Exhibit 11 for identification be entered into evidence and the words
"for identification" be deleted.
MJ: Objection from the Defense?
IMC: No objection.
MJ: There being no objection, Prosecution Exhibit 11 for
identification is now admitted into evidence. The words "for
identification" will be stricken by the court reporter, and you may
publish the exhibit.
TC: I will not be publishing it at this time, sir. It's quite
a lot of writing. I'll let the members look at it when they
deliberate.
Q. But just ask you a few questions, Chief. What was
interesting about--well, first of all who did you believe this Word
document was created by?
A. I believed it was--I believe that it was created by
Lieutenant Commander Penland.
513
Q. And why was that?
A. Because he forwarded it to me, so I just assumed she had
created the document.
Q. And the e-mail to your husband was from an NMCI account?
A. Yes, it was, sir.
Q. And what was unique about this attachment or this Word
document?
A. Because she was explaining if they were to get caught, how
they were going to talk about how to get out of it. And she was
asking him his thoughts on how to get out of the information, you
know, how to--I took these pictures because, I did this because, and
how are going to--if we both get caught in way, shape or form, how are
we both going to get out of it and save our necks.
Q. Was the term "the other woman" used in that?
A. Yes, it was in that e-mail and in that document, yes, it
was.
Q. Did you confront your husband about this?
A. Well, he sent me that e-mail, so he was trying to let me
know, hey, supposedly she's unstable, this is what she's trying to do,
she's still trying to break me of--I guess he said "She still wants
me, but it's over and I've told her it's over."
Q. Did you--did you find your husband to be sincere at that
point?
A. I thought he was being very sincere at that point because
we were going to counseling and stuff like that, so, yeah.
514
Q. At this point you still thought you had a chance to salvage
your marriage?
A. Yes, I did.
TC: Sir, request permission to approach the court reporter?
MJ: Very well.
TC: I'm returning Prosecution Exhibit 10 and 11 to the court
reporter.
Q. Chief, this puts us towards the end of September. What
happened next in reference in this situation?
A. I think we were getting ready to go to--I think the
PRINCETON was getting ready to do a change of command, if I'm not
mistaken.
Q. And what was the significance of that event?
A. The change of command was interesting. The PRINCETON had a
change of command and my ship was a couple piers down, so I was
getting off work after they were finishing the change of commands, and
me and him were supposed to eat lunch. So we go to eat lunch at----
Q. Let me stop you real quick.
A. Yeah.
Q. Do you remember roughly when the PRINCETON change of
command was?
A. September-October time frame. I'm not quite sure.
Q. Was it after when--we've been going through the evidence
here. Was it after the e-mail that we just viewed?
A. Yes, it was after that e-mail, yes.
515
Q. Okay. Do you remember how long after?
A. Not off the top of my head, sir, because it was about a
year ago.
Q. Okay. I'm sorry. So----
A. I'm sorry.
Q. ----you were at the change of command?
A. So I walk over there. I get him. They had the change of
command. We leave to go eat lunch.
Q. Who is "we"?
A. Me and Lieutenant JG Wiggan. We leave to go eat lunch at
the Island Spice, a little restaurant on Market Street.
Q. Okay. And what happened when you went to lunch?
A. So we pull in. First we sit in the car and he was like--he
turns his phone on. He's like "I've got these phone--all these
messages on my phone." And I hear her voice on the phone talking
about "How could you do me this way? We're supposed to be together.
You don't love her, you love me," and it was just sporadic. So he
says--he says----
Q. Who--when you say "her," who are you referring to?
A. Lieutenant Commander Penland on his cell phone.
Q Okay.
A. And I remember saying right after that, I said, "Well, we
need to get our cell phone numbers changed then so we can stop all
this and you won't have any problems with, you know, for future use,
we just get the number changed."
516
So then we go inside and we sit down to eat. So then the
next thing I know she comes in. I had----
Q. When you say "she," who do you mean?
A. Lieutenant Commander Penland. I never actually seen her
before that moment. I never knew what she looked like, I had no idea.
Q. How did you know she was Lieutenant Commander Penland?
A. When she came in, she looked at us and then Mark turns to
me. He says, "That's her."
Q. Meaning that is Lieutenant Commander Penland?
A. Yes, that's Lieutenant Commander Penland.
Q. What happened next?
A. So she comes up to the table and sits down and she puts her
hand on her stomach. So I'm like, okay, what's that supposed to mean.
She has her hand on her stomach.
And then he looks at her and he says "I'm letting you know
in front of my wife that it's over, we're finished, it's done."
And then the next thing I hear out of her mouth, she says,
"Well, what about our baby? We're having this baby. What do you mean
it's over? You're going to take care of your child. You're going to
take care of your responsibilities." Then she asked me how can I be
with him, blah, blah, blah, knowing that he slept with her and this
and that and they have a baby on the way.
And like I told her, I said right then and there at that
time, I said, "If the two of you want to be together, Mark, this is
your opportunity. You can leave right now. You're free to go." I
517
said, "I love you enough to set you free to be with whoever you're
supposed to be with."
He turns, he says, "I don't love her. I love you. I'm not
going anywhere."
And then she got mad and then he just sat there----
Q. "She" meaning Lieutenant Commander Penland?
A. Lieutenant Commander Penland. And he just sat there and
starting eating, and she just kept going and going and going.
Q. What kind of things did Lieutenant Commander Penland say?
A. She was just talking about how she was going to go and ruin
his career. She was going to his ship to tell his CO what was going
on. She was going to do whatever she had to do because there's no way
he was going to leave her with a child and not be financially
responsible and not to stand up for his responsibilities as a man.
Q. Did you leave lunch at that time?
A. We left right after--she left before us. She says, "I'm
going back to your ship and I'm going to let them know what's going on
right now."
So we left. So we drove--she left before us and we left
right after her. So I said, "Mark," I said, "if this is all true," I
said, "it is not fair that your CO at the--the new CO--the CO and the
XO had just had a change of command, has this lady coming to their
ship making a scene." I said, "You better call your ship and tell
them that somebody's coming and let them know that you're coming in
to talk about the situation." So he calls his XO on the phone. Then
518
he tells his XO, which I had no idea he had told him. "Oh, I told you
about me and my wife, we was separated and now we're back together."
He said, "This crazy woman is coming to the ship and I shouldn't have
been with her and I screwed up and she's coming to say all this stuff
about me." And I heard the XO on the phone because he had him on
speaker phone. He said "Don't"--he said, "Don't have your mess come
across my quarterdeck." Don't have your messy life, your messy
something on my quarterdeck, your personal messy life or something to
that effect on my quarterdeck.
Q. So did you and your husband go back to the ship?
A. Yes, we did.
Q. And back to the USS PRINCETON?
A. And she was already there.
Q. Where was she----
A. On the pier.
Q. ----when you arrived? She was on----
A. She was on the pier.
Q. And what happened then?
A. So we were coming up to the pier and she's like "Give me
back my house keys," which I didn't know he had her house keys and I
was like wow. So she's like "I want my house keys back" and he takes
the key off and he gave it back to her. He said, "We're done. We're
done." She's like "We're not done."
So then I'm standing on the pier and I'm talking to her and
I say--I said--you know, against better judgment, but I talked to her.
519
I said, you know--I said, "It looks bad when two Naval officers are
making a scene like this." I said, "Regardless of how I feel about
the situation," I said, "that's not right." I said, "You guys
shouldn't do it." I say, you--I say, "You have no business going on
that ship talking about this to the commanding officer." I said,
"That's not what you all should be doing." I said, "You all need to
let it go." I said, "If he says it's over, it's over. You guys are
done." I said, "Don't go on there," I said, "because you're just
making the two of you look bad as officers and," I said, "that's not
what we should be portraying to people in the Navy." I said, "Our
personal life is our personal life. We shouldn't be airing it to a
whole ship on a pier, on the waterfront. That doesn't look good.
Regardless of how I feel about the two of you," I said, "this part"--I
said, "this doesn't make sense."
And as I'm standing there talking to her, my YNC and YN1
come riding by in a car. They see me standing there in the middle of
the street talking to her and they look at me and YNC goes, "Is that
her?" I said, "That's her." And then YN1----
Q. When you say YNC, who do you mean?
A. YNC Morrison before he went to leave to go to----
Q. And when you say YN1, who do you mean?
A. YN1 Cunningham. So they said, "Are you okay?" I said,
"I'm fine."
Q. Now, what was your rank at that time?
A. I was an E-6 at the time.
520
Q. And the rank of your husband?
A. He was an ensign.
Q. And the rank of Lieutenant Commander Penland?
A. She was a lieutenant commander.
Q. And everyone was in uniform at that time?
A. No, huh-uh. We were all in civilian clothes.
Q. Did Lieutenant Commander Penland ever actually go on board
USS PRINCETON?
A. Yes, she did. She walked all the way onto the ship.
Q. And what happened when she got on the ship?
A. My husband called the quarterdeck and that the guy on the
quarterdeck said, "Yes, sir, she came on here, but she said she just
wanted to talk to the supply officer about some training opportunities
for her people from Naval Coastal Warfare Group ONE."
Q. So she actually never reported the relationship to the
chain of command on the PRINCETON?
A. Huh-uh.
Q. Did you ever--and this is backing up a little bit. But
when you returned from deployment, did you ever go to USS PRINCETON to
visit your husband?
A. Yes, I did, as a matter of fact.
Q. And what--was it just on one occasion or did you visit
several times?
A. I visited several times. But the very first time I went
back to the PRINCETON to visit my husband----
521
Q. And roughly what time frame is this?
A. This was like right after I got--no. It was like--I don't
remember the time. We went--I went over there to--I think I went over
there to drop something off or check on something, to ask him about
something in regards to the house that we owned in Temecula.
So I walk onto the ship and I walk on there saying "I'm
here to see Ensign Wiggan." And they were like "Who are you?" I
said, "I'm Ensign Wiggan's wife." And they're like "Huh-uh." And
this was the quarterdeck guy. He said, "You don't look nothing like
his wife. You can't be his wife. We just saw her the other day. She
don't look nothing like you." And I was like--so I pull out my ID
card and I said, "Yes, I am this person." And he was like, "Huh-uh,
no, no. We saw his wife the other day," and the guy was adamant, like
I must have been lying.
So when he came up to the quarterdeck and he said--he said,
"Sir, who is this?" He said, "Oh, that's my wife." And so the guy on
the quarterdeck was like, whoa, like he had said something that he
shouldn't have said or he leaked something that he shouldn't have
leaked and I was just like wow.
Q. After the incident, at a later time did someone from the
USS PRINCETON ever say anything to you about Fleet Week?
A. Yes. I was----
Q. What was--tell us about that.
A. I was walking----
IMC: Objection. Hearsay.
522
MJ: Lieutenant Commander Messer?
TC: Sir, it's offered for effect on the listener, not for the
truth of the matter.
MJ: Why is it relevant?
TC: It goes to the witness' actions with respect to what her
husband was doing and why she responded accordingly. It's with
respect to their marriage, being separated and pursuing a divorce.
MJ: Why don't we get the actions first.
TC: Yes, sir.
Q. So what happened?
A. I was walking down the pier and, you know, having your
utilities on, so your last name is posted on the back of the
utilities. So this guy runs up to me and he's like, "Yeah, are you--
you Ensign Wiggan's wife?" I'm like, "Yeah." He was like, "Somebody
told me you were his wife, but I didn't believe it." I was like, "Why
don't you believe me?" He said, "We saw his wife at Fleet Week. She
don't look nothing like you." I was like--I was like "What?" I said,
"Well"--I said, "My ship didn't go to Fleet Week. I was here. We
were sitting on the pier during Fleet Week in San Francisco." He was
like, "Well, I'm telling you, I saw her and you don't look nothing
like--you don't look nothing like the woman we saw at Fleet Week.
You're not her." I was like, "I am--I am his wife. I'm not going to
make it up." I said, "Yeah, I'm his wife." He was like, "No. You're
not dark skinned, you're not" da-da-da-da-da. And this was just a
fireman that worked on the ship. He was like, "No. You're not his
523
wife. We met his wife at Fleet Week. That's not you."
Q. Was this someone who worked for your husband?
A. Yeah, uh-huh. It was just one of the little firemen, and
one of the guys I guess told him I was on the next ship over.
Q. Now, did you receive any more e-mails from Lieutenant
Commander Penland?
A. I may or may not have. I'm not really sure. I can't
remember the time frame.
TC: Request permission to approach, Your Honor.
MJ: Very well.
TC: I'm retrieving what has been marked as Prosecution Exhibit
13 for identification. I'm showing Prosecution Exhibit 13 for ID to
the Defense [showing PE 13 for ID to Defense].
I'm handing Prosecution Exhibit 13 for identification to
the witness [handing PE 13 for ID to the witness].
Q. Chief, do you recognize that?
A. [Reviewing PE 13 for ID.] Oh, yeah, I remember this one.
Q. How do you recognize that?
A. This is the--I guess wanted to know about the truth. This
was in December.
Q. And is that e-mail in the same format as when you received
it on that date?
A. Yes, it is.
Q. And has it been altered in any way?
A. No, it has not.
524
Q. And does that appear to be an accurate depiction of that
e-mail?
A. Yes, sir.
Q. You printed that e-mail out?
A. Uh-huh.
TC: Sir, at this time I'd offer what has been pre-marked as
Prosecution Exhibit 13 for identification into evidence and ask the
words "for identification" be deleted.
MJ: Objection from the Defense?
IMC: No objection, sir.
MJ: There being no objection, Prosecution Exhibit 13 for
identification is now admitted into evidence. The words "for
identification" will be stricken by the court reporter, and you may
publish the exhibit at an appropriate time.
TC: Thank you, sir. I'm publishing it now.
[PE 13 was published electronically to the members and witness.]
Q. Chief, the subject of this e-mail was "Truth." What did
you believe that to be in reference to?
A. I thought this was in reference to the--she had said that
she had had a miscarriage prior to this on the phone conversation.
Q. So let me just set the time line here.
A. Uh-huh.
Q. You had had lunch sometime around the PRINCETON change of
command.
A. Uh-huh.
525
Q. And you believed that to be in October?
A. Yes, sir, about that time.
Q. And at that lunch, she, Lieutenant Commander Penland,
represented to you that she was pregnant?
A. Yes, sir.
Q. Is this--is this in reference to that pregnancy?
A. I think it's in reference to pregnancy number two.
Q. Okay. So explain. Explain what you mean by that.
A. After--before this e-mail, I got a phone call from her.
She said she had had--she had an IUD inserted and they were going to
take it out because it was causing complications with the pregnancy.
So after it was taken out, then she miscarried. So--and like my aunt
says, I'm probably too nice for my own good. She called me. She was
upset about it, so I talked to her and I even called her back and
talked to her more about the situation and it was more of me going,
okay, the Navy instinctively tells you whatever you may personally
feel about somebody, when they have trauma or a tragedy in their life,
you need to take care of the Sailor. Regardless of how you may feel
at the time about the person, you take care of the Sailor, you take
care of their emotional needs, get them back on their feet and move
on. So I talked to her off and on about this.
So then later on around December time frame that's when I
found out. He tells me, "She's telling me she's pregnant again." And
I'm like, "Well, if we were supposed to be reconciled and she's
pregnant again," I said, "okay, enough's enough. You guys are
526
obviously--maybe you all really want to be together, so I'm going to
let it go." So he had moved back into the house because--and I said,
"Look. You pay mortgage, I pay mortgage. I cannot rightfully tell
you "You can't live in your house." He was living in one room. I was
living in the other room. And we're talking about how we're going to
take care of everything and move on our separate ways, and then I get
this e-mail. I don't know if they had been on the outs or whatever.
I really don't know. But I get this e-mail to my job and on the ship
when I thought I was pretty much done with the whole situation. It
was about the truth in regards to their relationship and her and him
and this second baby they was supposedly having.
TC: Request permission to approach, sir?
MJ: Very well.
TC: I'm retrieving what has been marked as Prosecution Exhibit
14 for identification. I'm showing what has been marked as
Prosecution Exhibit 14 for identification to the defense counsel
[showing PE 14 for ID to Defense].
I'm handing Prosecution Exhibit 14 for identification to
the witness [handing PE 14 for ID to the witness].
Q. Chief, do you recognize that e-mail or do you recognize
that?
A. [Reviewing PE 14 for ID.] Yes, sir, I do.
Q. And what is it?
A. This was me. I e-mailed her back and----
527
Q. Well, what's the time frame wise in relation to the e-mail
that's on the screen? When was it?
A. That was--this was the 24th. It was like the next day.
Q. And does that e-mail appear to be an accurate depiction of
the e-mail you received on that date?
A. Yes, sir.
Q. Has it been altered in any way?
A. No, sir.
Q. And did you print that e-mail out subsequent to receiving
it?
A. After I received it, printed it up for Commander Doud, yes.
TC: Sir, at this time I'd ask that Prosecution Exhibit 14 for
identification be entered into evidence and the words "for
identification" be deleted.
MJ: Objection from the Defense?
IMC: No, Your Honor.
MJ: There being no objection, Prosecution Exhibit 14 for
identification is now admitted into evidence. The words "for
identification" will be stricken by the court reporter, and you may
publish the exhibit at an appropriate time.
TC: I've retrieved Exhibit 14 from the witness. I am now
publishing it to the members.
MJ: Very well.
[PE 14 was published electronically to the members and witness.]
528
Q. Now, to this point, did you know who "the other woman" was?
A. No, I did not. I never had a full recollection of who the
other woman was until she responded back to an e-mail that I sent back
to her.
Q. You had suspicions, though?
A. Yeah, I did, but I didn't have a full--of who the other
woman e-mail was.
Q. And now this e-mailed is signed by a person by the name of
Sy. Who do you believe that to be?
A. Oh, that's Lieutenant Commander Penland because she says--
she said her nickname was Sy.
Q. And she told you that?
A. Uh-huh, on a phone conversation once.
Q. And do you recognize the phone number that was listed
there?
A. Yes, sir, I do.
Q. How do you recognize that number?
A. That was the number that--that's her home phone number that
she told me I could call her at any time if I needed to.
Q. Did you ever call her on that home phone?
A. I think I may have done it a couple times only because,
like I said, she said that she had had the miscarriage and whatever,
whatever; and then after that, I never really used it after that. I
think I----
529
Q. And that talking to her about breast cancer----
A. Yes.
Q. ----at that time frame, were you experiencing some issues?
A. Yeah. I had a--I had went and they said I had a lump and
then I had to go get a mammogram and I was very worried about it,
because like I said, breast cancer runs in my family. I have a cousin
that's had breast cancer, my aunt died of breast cancer. So I
honestly just put it out there and that's when I said, hey--I think I
even told her after this e-mail, don't e-mail me again, don't contact
me again and whatever. And I said, if you want me to contact you, you
give me a number from hereon out. I'm not going to just willy-nilly
call you because I don't have nothing else to do pretty much.
Q. Did you share that information about your breast cancer
scare with many people?
A. The only person who knew that was the IDC corpsman that we
had and I talked to my aunt. That's who I relied on a lot, my aunt.
Q. How did this person know about your breast cancer?
A. Well, only knew about it because she had talked about how
she had had it prior to that.
Q. So you had discussed it with----
A. Yeah.
Q. ----Lieutenant Commander Penland on the phone?
A. Yeah. She had told me how she had had, you know, breast
cancer in the past. So, you know, I literally at the time I was just
down in the dumps and I e-mailed her on that one and it was pretty
530
much that in regards to I also, in addition to that, I was saying,
hey, don't e-mail anymore, as well.
TC: Sir, request permission to approach?
MJ: Very well.
TC: I'm returning Prosecution Exhibits 13 and 14 to the court
reporter. I'm retrieving Prosecution Exhibit 15 for identification
from the court reporter. I'll also retrieve Prosecution Exhibit 16.
I'm showing Prosecution Exhibits 15 and 16 for identification to
defense counsel [showing PE 15 and 16 for ID to Defense].
I'm handing Prosecution Exhibit 15 for identification to
the witness at this time [handing PE 15 for ID to the witness].
Q. Chief, do you recognize that?
A. [Reviewing PE 15 for ID.] Yes, I do.
Q. How is it that you recognize that document?
A. This was a part of the giving me the information about the
truth.
Q. I'm sorry. I missed that. It's----
A. This is information in regards to the truth e-mail. She
was sending me information.
Q. So this is a response to an e-mail chain that was----
A. Yes.
Q. ----that ties in with those other prosecution exhibits?
A. And as well as a conversation that we had on the phone.
531
Q. And what was unique about this e-mail that was sent? I'm
sorry. Before you do that, does that e-mail look to be the same as
the e-mail you received on that date?
A. Yes, uh-huh.
Q. And has it been in any way changed or----
A. No.
Q. ----reformatted?
A. Huh-uh.
Q. And is this--does this appear to be the printout, that it
appears you printed this out on your NMCI account?
A. Yes.
TC: At this time, Your Honor, I would offer Prosecution
Exhibit 15 for identification into evidence and ask the words "for
identification" be deleted.
MJ: Objection from the Defense?
IMC: No, Your Honor.
MJ: There being no objection, Prosecution Exhibit 15 for
identification is now received by the Court and admitted into
evidence. The words "for identification" will be stricken by the
court reporter, and you may publish the exhibit at an appropriate
time.
TC: Publishing--I've retrieved Exhibit 15 from the witness and
I'm publishing it at this time. It may be a bit too voluminous to
show on the Elmo, but I'll attempt.
[PE 15 was published electronically to the members and witness.]
532
Q. Does this e-mail talk about pregnancy?
A. Yes, it does.
Q. And which pregnancy is she referring to?
A. Her current pregnancy that she says she had.
Q. Now, at this point in your relationship with your husband,
what is the status?
A. He wanted to come back. I was still--this is the second.
He wanted to come back and I was still very leery about it because I
honestly didn't believe a whole bunch of stuff that was being said.
He still--like I said, we had two separate bedrooms; he was in one
room, I was in the other. So he was still trying to make it up to me
by telling me about the pregnancy, and then he was saying that--he
said he wanted to know if it was for real because he had got lied to
the last time and he really didn't really believe her this time.
Q. At this point were you still believing in your husband
or----
A. At this time I pretty much moved into friend mode with him,
not the marriage mode, because we were actually friends before we got
married. So I kind of--he was living in his world and I was living in
my world, and we were still talking about once we were separated how
we were going to divide property, this and that. So we were pretty
much working on making it a fairly amicable split at that time.
Q. And now just to be clear, there were two separate
allegations of pregnancy, correct?
A. Uh-huh, yes, there was two separate ones.
533
Q. And the first one occurred when?
A. The first one was back in when I first--when I first--in
like September-October time frame.
Q. And the second one was closer to the holidays?
A. Yeah. The second one was supposed to be around November
time frame.
TC: Request permission to approach the witness, Your Honor?
MJ: Very well.
TC: I'm handing to the witness Prosecution Exhibit 16 for
identification [handing PE 16 for ID to the witness]. It's been
previously shown to defense counsel.
Q. Chief, do you recognize--do you recognize that?
A. [Reviewing PE 16 for ID.] Yes, I do.
Q. What is that?
A. This is the e-mail from her to me and him, and he had a
Yahoo account because he's from Jamaica, so it's about being a dread
to a certain extent.
Q. Does the e-mail look to be an accurate depiction of what
you received on that date?
A. Yes.
Q. And you printed out that e-mail and that's an accurate
reflection of what you printed out?
A. Yes, it is.
TC: At this time, Your Honor, I'd offer into evidence
Prosecution Exhibit 15 for identification--or I'm sorry--16 for
534
identification and ask the words "for identification" be deleted.
MJ: Objection from the Defense?
IMC: No, Your Honor.
MJ: There being no objection, Prosecution Exhibit 16 for
identification is now admitted into evidence. The words "for
identification" will be stricken by the court reporter, and you may
publish the exhibit at an appropriate time.
TC: Thank you, sir. I've retrieved Exhibit 16 from the witness
and I'm now publishing the exhibit to the members.
MJ: Very well.
[PE 16 was published electronically to the members and witness.]
Q. Now, this e-mail is sent from an address----
A. Yes.
Q. ----at BlackHeaven01Yahoo.com.
A. Yes.
Q. Who do you believe that e-mail to belong to?
A. It's from Syneeda Penland, from Lieutenant Commander
Penland. That's her personal e-mail address.
Q. And [email protected], who is that person?
A. That is Mark's e-mail address.
Q. And the subject title, "Hang in there," what are they--what
is the purpose of saying "Hang in there"?
A. This is in regards to our relationship and how----
Q. Specifically what? What was going on?
A. ----how it was ending.
535
Q. What had happened at that point to precipitate this e-mail?
A. At that point, to precipitate that e-mail, I had seen the
e-mail--I think there was an e-mail either before or after this in
regards to--he sent her an e-mail in regards to--in regards to their
child, he would take responsibility for it. So he acknowledged it.
And she forwarded me that e-mail so that I could see it, that he
acknowledges that there is a child between the two of them.
TC: Sir, may I approach?
MJ: You may.
TC: I'm retrieving from the court reporter what has been
pre-marked as Prosecution Exhibit 19 for identification. I'm showing
Prosecution Exhibit 19 for identification to witness--or excuse me--to
the defense counsel [showing PE 19 for ID to Defense].
I'm handing Prosecution Exhibit 19 for identification to
the witness [handing PE 19 for ID to the witness].
Q. Do you recognize that, Chief?
A. [Reviewing PE 19 for ID.] Yes, I do.
Q. And what is that?
A. This was the e-mail that she forwarded me from her Yahoo
account that he sent her.
Q. And that was the e-mail--and is that the e-mail--does that
e-mail look to be an accurate depiction of the way you received it on
that date?
A. Yes, sir.
536
Q. Has it been altered in any way?
A. No, sir.
Q. And you printed out that e-mail and it looks as it did when
you printed it out?
A. Yes, sir.
TC: Sir, at this time, Your Honor, I'd offer into evidence
Prosecution Exhibit 19 for identification and ask the words "for
identification" be deleted.
MJ: Objection from the Defense?
IMC: No, Your Honor.
MJ: There being no objection, Prosecution Exhibit 19 is now
received into evidence. The words "for identification" will be
stricken by our court reporter, and you may publish the exhibit at
this time.
Q. Now, you referenced an e-mail in response to the prior
e-mail. It this the e-mail that you're talking about?
A. Yes, sir.
Q. And what of note is important about that e-mail?
A. That he acknowledged that they were having a child and that
he wouldn't go anywhere and she again found him on NKO account and his
number is till the same.
Q. And why do you believe that the BlackHeaven at--well, first
of all, BlackHeaven01@Yahoo I think we established that you believe
that to be Lieutenant Commander Penland?
A. Because it was on the other----
537
Q. Why would Lieutenant Commander Penland follow--forward this
e-mail to you?
A. I guess so that I would know that he acknowledges that
they're having another baby. Because he--before that, that night, the
same night he showed me an e-mail on his computer that was supposed to
be an actual certificate that showed that she was pregnant. This time
she forwarded it to him and he believed it to be a true document. So
he just accepted it as such.
Q. In response to this e-mail and these allegations that
Lieutenant Commander Penland was pregnant with your husband's child,
what steps did you take with respect to the marriage?
A. Well, the first time it came up, trying to work through
everything, I said "If it's really for real and it's true, if it's DNA
evidence and it's yours and we are still together, we will work with
the situation at hand. That's the best I can do." I told him, "I can't
guarantee you that I'll still be here, but I'll work with you for
right now until it's--until we find out if it's really, really yours."
And then the second time when this came about, he was
really distraught. He was drinking a lot. He was upset and that he
just wasn't--he wasn't like he was the first time he found out. He
was very emotionally upset the second time.
Q. Did he ever act out against you?
A. Yes, he did, as a matter of fact.
538
Q. What did he do?
A. Well, that same night when that e-mail came through, he was
drinking and he decided he would just spill the beans. I guess when
you drink alcohol, it tells the truth, even if you can't hold it in.
He was telling me how they plotted to do everything against me and he
couldn't figure out how come I didn't break down after everything they
done to me to get what they wanted, and then next thing I know he
leaves. He goes in the bathroom. He calls her. He's like "I can't
take any more. I want to be with you. I want to come with you. I
want you to take me back." And I don't know what she said to him.
Next thing I know he came out of the bathroom. I don't
know if he thought I was--if he was just--he was drinking a lot and
thinking that I'm her and he was acting out. Next thing I know he
choked me until I was on the floor and all I could say to myself was,
man, if I get up from here, he got to get the heck up out of here
because one of us ain't going to make it.
So after I--after he finished choking me and he looked me
in the face and I got up, he said "I'm going to kill you next time.
I'm going to kill you." I said, "Man," I said, "if you hadn't been
drinking and driving right now," I said, "you'd be out the door," I
said. "But I cannot in good conscience let you get on the highway
knowing that you're drunk as a skunk right now."
Q. Roughly what time--when was this, do you remember the date?
A. This was like on the 4th of January, going into the 5th of
January, the next morning.
539
Q. So it was at that point, what did you believe the
likelihood of your marriage surviving would be?
A. There was no likelihood whatsoever. It was officially
over. In my mind, if the court didn't say it, I was done. I figured
he do that, I don't know what else is going on, so----
TC: Sir, request permission to approach.
MJ: Very well.
TC: I'm returning to the court reporter what has been entered
into evidence as Prosecution Exhibits 15, 16 and 19. And I'm
retrieving Prosecution Exhibits 1 and 2 for identification.
Q. Now, at some point prior to the events that we just
recounted in January, did you--did you go on your husband's laptop
computer?
A. Yes, I did.
Q. When was that?
A. It was around--it was like--I think it was the 4th, the
afternoon of the 4th before everything just kind of exploded.
Q. So it was the 4th of January----
A. Yeah.
Q. ----or the 4th of December?
A. Oh, no. This was like--this was like December--no, it was
like January, January time frame.
Q. So it was after the holidays?
A. Yes, through the holidays because he was back at the house,
staying there, like I said, pay mortgage, so.
540
Q. And you were on his computer. What did you see?
A. I asked him could I use his computer because I had left
mine on the ship and he said, "Sure. Go right ahead." So he let me
use his computer. So he went to sleep. I'm using the computer. So
I'm twiddling around and I'm like, oh, he got some pictures from
deployment on there.
Q. Why did you think that?
A. Because he always before in the past he'd download pictures
from deployment and stuff that they did, you know--you know, unrep
[ph] pictures, whatever, whatever, and he was an engineer and then
he'd take pictures of his guys working. So I said okay.
Q. So what made you think these were pictures of deployment?
A. Because I saw Olympics 100.
Q. Was that the name of what?
A. D.C. Olympics.
Q. Was the name of the folder?
A. Yeah, the folder was like D.C. Olympics 100. So I was
thinking, oh, he's got photos of the D.C. Olympics on the ship.
Q. And when you opened that folder, what did you find?
A. When I opened that folder, I saw more of Lieutenant
Commander Penland's body than I ever thought I'd see in my whole
lifetime.
Q. Why was the folder entitled Olympics?
A. Maybe for everything that they did in those photos.
541
Q. Is it possible it could have been the name of the camera or
the camera company?
A. It could have been; Olympic, yeah, it could have been that,
as well. I just thought of D.C. Olympics when I saw it.
TC: Request permission to approach the witness, Your Honor?
MJ: Very well.
TC: I'm handing to the witness what has been marked for
identification Prosecution Exhibit 1 for identification [handing PE 1
for ID to the witness].
Q. Chief, do you recognize that?
A. [Reviewing PE 1 for ID.] Yes, sir.
Q. How do you recognize that?
A. These are all those photos that's on that file.
Q. Is that an accurate depiction of what you saw when you
opened that folder?
A. Yes, sir.
Q. Have those photos in any way been altered as to what they
looked like at that time?
A. No, sir.
Q. And you find that to be a fair and accurate depiction of
what you saw?
A. Yes, sir.
TC: Request permission to approach, Your Honor?
MJ: Very well.
542
TC: I'm now retrieving Prosecution Exhibit 1 for identification
from the witness. I'm handing Prosecution Exhibit 2 for
identification to the witness [handing PE 2 for ID to the witness].
Q. Chief, just briefly look through those.
A. [Reviewing PE 2 for ID.]
Q. Do you recognize that?
A. Yes, sir. These are the same photos that are on there.
Q. What's different between those photos and the photos I just
showed you in Prosecution Exhibit 1?
A. There's no difference. They're just blown up full size
photos.
TC: Sir, at this time I'd offer into evidence Prosecution
Exhibits 1 and 2 for identification. I'd ask that the words "for
identification" be deleted.
MJ: Objection from the Defense?
IMC: Yes, sir. Sir, the Defense objects to authenticity and
requests a 39(a) session so that we address the issue.
MJ: Very well. Members, this would be an appropriate time for
a brief recess for you. If you would please cover your notes.
Subject to my standard instructions, you may depart on recess. Please
reassemble at 1130 hours.
BAILIFF: All rise.
[All persons did as directed, and the members withdrew from the
courtroom.]
[The court-martial recessed at 1122 hours, 22 May 2008.]
543
[The Article 39(a) session was called to order at 1123 hours, 22 May
2008.]
MJ: Please be seated.
[All persons did as directed.]
MJ: This 39(a) session is called to order.
Let the record reflect the members have departed from the
courtroom.
Captain Callahan?
IMC: Yes, sir. Sir, the Defense objects to the authenticity of
the photographs. I have two cases that I'd like to provide the Court,
as well. The first one is United States v. Riggendahl [ph], and I
have copies of both of them and I'll provide them to the Court and
counsel. But that case deals with the admittance of photos and a
requirement that for photographs to be admitted in court, there has to
be a witness present to testify that the photographs are a true and
accurate depiction of what they purport to depict. That is not
present in this case. That is an older case and the court has since
modified that standing somewhat that it's still one way that is
acceptable to present photographic evidence to the court.
But the court has also adopted what's called a "silent
witness theory" which comes from United States v. Harris and that the
pictures can be treated as a witness themselves without having
somebody come in to testify that the pictures--that they were there
when the photos were taken and the photos are a true and accurate
depiction of what they purport to depict. However, what the court in
544
Harris requires is that, in order for photographs to be brought in
under this "silent witness theory," that the photographs have to be--
has to proven when they were taken and what they were taken with. An
expert has to come in and explain and testify to the reliability of
the recording equipment and that the pictures are, in fact, in their
true and original condition. That's not present in this case.
Harris deals with cases such as the recordings from ATM
machines, when somebody robs an ATM machine, how you could get an ATM
recording in the court because obviously there's no witness, just a
gentleman present to say that the recording from the ATM machine is a
true and accurate depiction of the robbing of the ATM machine. So the
court has ruled in what is required to admit these as under the
"silent witness theory," and in this case that is completely lacking.
We don't have a date these alleged photos were taken. We don't have
any equipment they're allegedly taken on. We don't have any testimony
as to the accuracy of that equipment.
So for those reasons the Defense would object to the
admission of those.
And with the Court's permission, I will approach and
provide the Court and counsel with copies of those two cases.
MJ: Very well.
[Defense counsel handed case cites to the military judge and trial
counsel.]
MJ: Captain, do you have any evidence or information to suggest
that the photos were, in fact, altered or manufactured?
545
IMC: I do not, sir, other than Lieutenant Wiggan's testimony
that it's not him and it was never him in those photos and didn't have
sex in those photos. And if it is him in those photos, it's him in
Hawaii.
MJ: Thank you, Counselor.
Lieutenant Commander Messer, the Government response?
TC: Sir, the Government's position is that I've laid an
adequate foundation, that the witness has testified that the matter in
question is what the proponent claims and that she found these photos
on her husband's computer. She's testified that the images that she
saw on the computer are the same images that have been presented here
in court and that that was an accurate depiction.
The Government would admit that we obviously do not know
when the photos were taken. We cannot say what type of a camera they
were--I shouldn't say that. We cannot say the--have the person who
photographed those images here in court to testify as we don't know
who did that.
But with that said, to authenticity, that's a question for
the members as to how--once we get over that threshold that this
witness can certify that, "Yes, that's what I found on the laptop, it
is what it is," then it's up to the members as to how much weight they
give that evidence.
Obviously from the Government's perspective it would be
fantastic if we could have the person that was photographing it come
in and say, "Yeah, I photographed it with this camera and this is a
546
reliable camera." We don't have that luxury. It still doesn't mean
that the photographs don't come in. We've come--we can overcome the
authenticity hurdle and that this witness will testify that they're
authentic as to how she found it and that should be enough.
In addition, if I'd be allowed to lay more foundation, this
witness will be able to identify both Lieutenant Commander Penland and
her husband in some of those photos offered.
MJ: That would be helpful for the Court, and why don't you lay
the foundation now.
TC: Yes, sir.
Questions by the trial counsel:
Q. Chief, do you still have in front of you what has been
marked for identification as Prosecution Exhibit 2?
A. Yes.
TC: And just for the sake of--since we're in a 39(a), sir, I'll
be putting these up on the Elmo, so all parties can see what photos
I'm referring to.
MJ: Very well.
Q. I'm going to show you what has been marked as Photograph
P-4 of the 52 images. [Placing Photo P-4 on Elmo.] If you could just
please look on the screen or just go to P-4 in the exhibit in front of
you.
A. Uh-huh.
Q. Do you recognize that person?
A. Yes, sir.
547
Q. How is that--who is that person?
A. That's Lieutenant Commander Penland.
Q. And how is it that you can recognize that?
A. I recognized her from the day that we went to--when we were
at the Island Spice, she had on a short sleeve shirt, so her arms were
bare and that's the same tattoo.
Q. And is there any other--anything else in that photo that
makes--that puts you on notice that that's Lieutenant Commander
Penland?
A. And her red fingernail polish. She tends to like red; I
have no idea why. But it was definitely the tattoo more so than
anything else.
Q. I now direct your attention to what has been labeled as
P-28 [placing Photo P-28 on Elmo]. Do you recognize who that person
is?
A. Yes, sir.
Q. How--and who is that person?
A. That's Lieutenant Commander Penland.
Q. And how is it that you recognize her?
A. I recognize her face and I also remember she said she had
breast surgery done.
Q. Okay. I'm now showing----
A. And the tattoo on her arm is still there, as well.
548
Q. I'm now showing you what has been marked as P-10,
Photograph P-10 of Prosecution Exhibit 2 for identification [placing
Photo P-10 on Elmo]. Do you recognize--first of all, do you recognize
who that--the person on the left is?
A. Oh, yep, that's my spouse, Lieutenant JG Wiggan.
Q. How is it that you recognize that person as your husband?
A. I'd know that face anywhere.
Q. I'm showing you P-11 [placing Photo P-11 on Elmo]. Do you
recognize the person on the left there?
A. Yep, that's Lieutenant JG Wiggan.
Q. And again, how do you recognize that person?
A. Because he decided to get a little small S curl in his hair
and he usually never combs his hair at all.
Q. And based on the hair style there, can you give it an
estimated time as to when these photos were taken?
A. This was--I'm not quite sure when they were taken, but he--
before, he never used to put any kind of product in his hair. He
never used to comb his hair. He said he didn't have to comb his hair;
he was a dread, he was from Jamaica. Then when I saw him in Hawaii,
he had an S curl there which was out of the ordinary for him. I mean,
he never cared about his so-called hair grooming standards.
Q. And you're certain that that's your husband in the photo?
A. Oh, yes. That's him.
549
Q. I direct your attention to P-12 [placing Photo P-12 on
Elmo]. Do you recognize that hand and the arm?
A. Yes.
Q. Who do you recognize that arm going to?
A. That's Lieutenant JG Wiggan because he has that little mark
on his arm for when he got a shot when he was an infant in Jamaica and
it scarred. And he's got a little mole, as well.
Q. P-29 [placing Photo P-29 on Elmo].
A. Uh-huh.
Q. Do you recognize the top part of that photo, the torso?
Who does that----
A. Yes.
Q. ----belong to? Who?
A. That's Mark because he always tried to get a six pack and
he's a little chubby around the middle and it never worked.
Q. But do you recognize the torso to be that of your
husband's?
A. Yes, sir.
Q. Is there any question in your mind that that--whether or
not that's your husband?
A. No. Not a doubt in mind.
Q. I'm showing you now P-5 [placing Photo P-5 on Elmo]. Do
you recognize--there's a picture there with male genitalia and a male
torso, a female torso. Do you recognize the male in that photo?
550
A. Yep, that's Mark because he's got a mole right there on
there.
Q. When you say the mole, where are you----
A. Right on the genitalia. And he has a little one on his
little butt cheek.
Q. On the shaft of his penis?
A. Uh-huh.
Q. And also do you see anything else that----
A. And then he has a little one right on his--it looks like
there's another little mole on there, as well. And the only reason I
remember that is because one day Mark decided he wanted to use my Veet
and he was trying to clean himself off and he put it on too long and
he rubbed himself raw, so he was walking around all funny and I had to
clean the area off and help him--help him with it because he couldn't
touch himself down there because he was----
Q. Did that cause the scar at that time or that scar has
always been there?
A. Oh, that scar has always been there, but it's just the fact
that he used the Veet, that's how I really got to see it even closer.
Q. Okay. So he had taken all the hair off his pubic area?
A. Yeah, by accident.
Q. Okay. I'm now showing P-8 [placing Photo 8 on Elmo]. Do
you recognize the genitalia there?
A. Yep, the same mole and plus Mark had gotten circumcised
when we were in Hawaii.
551
Q. Can you tell from this photo that he's been circumcised?
A. Yeah, because he was never circumcised before and then--so
he had gotten circumcised and so he has the little--still has a little
bit of the circle ring around from when they did the work on him.
Q. When was your husband circumcised?
A. This was when we were stationed in Hawaii.
Q. So well before--do you remember the year?
A. This was--this was right after we got married, because I
left to go to the MOBILE BAY. He was still there. He went on cruise.
So he got circumcised right before he went on the cruise. It was
supposed to have been a surprise.
Q. Now, I'm showing you what has been marked as P-38 [placing
Photo P-38 on Elmo]. Do you recognize the female in that photo?
A. Yeah, that's Lieutenant Commander Penland.
Q. And how is it that you recognize Lieutenant Commander
Penland there?
A. Still got the same tattoo.
Q. And do you recognize her face also?
A. Yes, and I recognize that that's Mark's genitalia because,
like I said, he still has the mark from when he got circumcised and he
has the little mole right there.
Q. Is there any question in your mind whether or not that's
your husband's penis?
A. Oh, no.
552
Q. I'm showing you P-26 [placing Photo P-26 on Elmo]. Do you
recognize who that person is?
A. That's Lieutenant Commander Penland.
Q. How do you recognize that person as Lieutenant Commander
Penland?
A. I remember from the tattoo on her arm and the little
bracelet.
Q. And is there anything significant about the fingernails?
A. Yeah, red. Every time I'm--the one time I met her, any
time after that it was red fingernail polish.
TC: I'd also note for the court, too, that they note the
fingernails because we believe that's a factor in many of the
photographs where you can't identify either of the individuals, but
you can use--well, you can't identify via the body parts, but when you
compare the fingernails in various pictures, you can link it back to
Lieutenant Commander Penland.
Q. And then I'm showing you what has been marked as P-16
[placing Photo P-16 on Elmo], and that is--well, how do you recognize
that--who do you recognize in that photo?
A. That's Lieutenant Commander Penland's fingernails and
that's Lieutenant JG Wiggan's genitalia because he still has the
little mole right there.
Q. And how is that you came to observe Commander Penland's
fingernails?
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A. When I met her, that's something that stood out to me
because I'm not--I don't wear fingernail polish, much less fake
fingernails, to be exact. So when I see fingernails and I--the reason
why it really stuck out to me because, as far as I was concerned,
there were really out of military regs. They were too long and the
color to me was a little too bold to be within regs, but, hey, she was
wearing them. But I just thought they were a little----
Q. Now, based on these photographs taken as a whole, do you
believe that they were all taken around the same time and place?
A. Yes, I do.
Q. And you believe that the two people in the photographs to
be Lieutenant Commander Penland and your husband?
A. Yes, I do. And when I asked him about these photos, he
said that they were--that was the both of them and that he only had a
copy of them because he felt that she was trying to blackmail him, and
he was going to put them on MySpace to get her off his back. And I
told him that's not the way you handle your business.
Q. And when was that statement made?
A. This was on the 4th of January.
Q. When you confronted him after finding the photos?
A. Uh-huh.
Q. And just to reiterate one last time, when you accessed
these photos, did the--or you've seen Prosecution Exhibit 1, the
thumbnails?
A. Uh-huh.
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Q. Does that exhibit accurately reflect what those pictures
looked like----
A. Yes.
Q. ----at the time you accessed them on----
A. Yes.
Q. ----husband's computer?
A. They look just like those, just a bunch of them.
Q. Now, subsequent to you discovering these photos, what did
you do with them?
A. Actually I pulled--I had a thumb drive at home, so I put a
copy on my thumb drive. I woke him up right after I did that and
said, "Hey," I said, "I see these pictures on your laptop." I said,
"What's the deal with them?" And that's when he went into, "Yeah,
that's me and her. She's trying to blackmail me. I got a friend,
we're going to put them on MySpace if she continues to try to
blackmail me." And I said, "Well, I don't think that's the proper
thing to do." I said, "I think you should delete them," I said,
"because you don't want to get into a situation that you can't get out
of." Then, like I say, he was still a little--he was still drinking
at the time, so then he sat down and he just--he just started--he's
deleting them, but I don't know if he had another copy anywhere else.
Q. So he deleted them off his hard drive.
A. Yes.
Q. But you had already saved a copy?
A. Uh-huh.
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Q. What did you do with--what did you save them to?
A. I just had them on a thumb drive.
Q. A zip drive or a thumb drive?
A. Yeah.
Q. What did you do with that drive?
A. I had a thumb drive. I literally--actually I put it in the
kitchen drawer. It was in plain sight, but he didn't----
Q. How long--and how long did it stay there?
A. Oh, it stayed there forever. I actually forgot I had them
on a thumb drive for a while.
Q. And then when did you remember you had them?
A. It wasn't till--I didn't remember I had them until one day
I accidentally--I grabbed the thumb drive, because I had--I bought a
big external hard drive after that, so I never really carried a thumb
drive anymore.
Q. And what did you do with the thumb drive when you picked it
up out of the kitchen counter drawer?
A. I remembered it was on there and I didn't use--I didn't
look at them again or even think about them until I talked to
Commander Doud.
Q. And at that time what did you do with the photos?
A. I gave them to him.
TC: And thank you.
And, sir, let the record reflect that Commander Doud has
already testified in this matter, that he received these photos from
556
the witness and then printed the photos out and that the photos he
received and the printout he made appeared to be the same and an
accurate depiction of what he had received.
MJ: Captain Callahan, do you still renew your authenticity
objection?
IMC: I do, sir, and that line of questioning doesn't do anything
for it because again the courts allow two ways for these to come in:
One, for somebody who is actually there to come in and
testify and authenticate it, which they could use, you know,
somebody--if these actually happened like they said, they could use
Lieutenant Wiggan. But he says, "No, it wasn't me, didn't do it." So
they cannot come in under that way.
The second way they can come in is under the silent witness
theory; and again, under the silent witness theory, the court requires
that there be proof as to the authenticity of them, proof by the
proponent of the evidence, that is, that they're accurately recorded,
their equipment used, that the equipment was properly functioning and
that they hadn't been altered with in any way. And we're lacking any
evidence as to what equipment was used to record these, that that
equipment was properly working and any sort of expert testimony as to
the fact that these pictures have not been altered.
So there's--under case law, these pictures are simply not
authentic for the purposes of being admitted to determine that is, in
fact, my client and someone else engaged in sexual acts.
MJ: Lieutenant Commander Messer, anything further?
557
TC: Nothing further, sir.
MJ: Very well. The Court's going to take a brief recess in a
moment to review the issue and issue a ruling when we return.
Approximately how much longer do you anticipate your direct
examination for this witness?
TC: One moment, sir. Fifteen minutes maximum, sir.
MJ: Very well. Court stands in recess. Please reassemble at
10 minutes to the hour. Carry on.
[The session recessed at 1140 hours, 22 May 2008.]
[The session was called to order at 1154 hours, 22 May 2008.]
MJ: This 39(a) session is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time except for
our members who remain in the deliberation room.
Counsel, are there any other matters you'd like to discuss
concerning the authentication objection concerning the photos?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. The Defense objection is noted and overruled.
The Court finds that an adequate foundation has been laid for the
photographs. There's no indication that the photographs were altered
in any manner. The concerns raised by the Defense go to the weight to
be assigned to the photographs and those matters certainly may be
raised by the Defense on cross-examination of the witness.
558
Therefore, Prosecution Exhibits 1 and 2 for identification
are now received into evidence by the Court and the words "for
identification" will be stricken by our court reporter, and you may
publish the exhibits at an appropriate time.
Other matters we need to address outside the members'
presence?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. Bailiff, please ask the members to rejoin our
court.
TC: Sir, first I'd ask that the witness be put back on the
stand.
MJ: Okay. You can bring her back if you want.
TC: I'll just go grab her before you get the members.
MJ: This 39(a) session is concluded.
[The witness reentered the courtroom and resumed her seat at the
witness stand.]
MJ: Captain, about how long do you anticipate for cross?
IMC: I would guess around 15 minutes, sir.
MJ: Oh, okay. Then we have no need for a lunch recess before
then.
Very well. Bailiff, please ask the members to rejoin the
court.
BAILIFF: Yes, sir.
[The Article 39(a) session concluded at 1157 hours, 22 May 2008.]
559
[The court-martial was called to order at 1157 hours, 22 May 2008.]
MJ: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: Court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others may be seated.
[All persons did as directed.]
MJ: Chief, I remind you you remain under oath for your
continued testimony.
Lieutenant Commander Messer, further questions for this
witness?
TC: Yes, sir. At this time I'd request that Prosecution
Exhibit 1 be published to the members.
MJ: Very well.
TC: I'm publishing Prosecution Exhibit 1 to the members.
[PE 1 was published electronically to the members and witness.]
Q. Chief, I'm showing you what is Page 1 of Prosecution
Exhibit 1 that's been entered into evidence. Is that an accurate
depiction of what you saw when you opened that e-mail folder on your--
or excuse me--that folder on your husband's computer?
A. Yes, sir, it is.
560
Q. And I'm showing you Page 2. Do you recognize those
thumbnail images to be the same images you saw also in that folder?
A. Yes, sir, they are.
TC: At this time I'd request that Prosecution Exhibit 3 [sic]
also be published to the members.
MJ: Very well.
Q. Chief, I'm only going to show you--there's 52 images in
Prosecution Exhibit 3 [sic]. I'm going to show just a small sampling
of them.
MJ: Prosecution Exhibit 1?
TC: I'm sorry, sir. I misspoke. That should be Prosecution
Exhibit 1.
MJ: Very well. PE 3 were cell phone records that were earlier
admitted. Oh, 2, correct. I'm sorry.
TC: Let me make sure I'm accurate sir, here. The Prosecution
Exhibit 1 is the two-page thumbnail image printout that I've just----
MJ: Correct.
TC: ----published to the members. Prosecution Exhibit 2 is the
enlargements of the individual thumbnails, the 52 individual pictures.
MJ: That's correct.
TC: That's what I'm publishing to the members at this time.
MJ: Very well.
Q. Chief, I'm going to give--you've had a chance to see these
photos. I'm just going to go ahead and go through a selection of them
so you can, for the members, you can identify who are in the photos.
561
I'm showing you what is marked as P-4 of Prosecution
Exhibit 2 [Photo P-4 of PE 2 being published electronically to the
witness and members]. Do you recognize that person?
A. Yes, sir, I do.
Q. How do you recognize that person?
A. That's Lieutenant Commander Penland. I recognize her
because, like I said, the day that we ate at the restaurant she had a
short sleeve shirt on and that's the tattoo that's on her arm and she
has the red fingernail polish on that I saw the same day.
Q. And you noticed--you said you noticed that fingernail
polish when you had met her at the restaurant?
A. Yes, I did.
Q. I'm now showing you P-28 of Prosecution Exhibit 2 [Photo
P-28 of PE 2 being published electronically to the witness and
members]. Do you recognize that person?
A. Yes, sir. That's Lieutenant Commander Penland. She has
the same tattoo on, as well, the same red fingernail polish.
Q. And that looks like the person you saw in the restaurant
that day?
A. Yes, sir.
Q. I'm showing you a photograph which is marked as P-10 [Photo
P-10 of PE 2 being published electronically to the witness and
members]. Do you recognize the person on the left in that photo?
A. Yes, sir. That's Lieutenant JG Wiggan. That is my spouse.
562
Q. And do you know who the person on the right is?
A. That to me still seems to be Lieutenant Commander Penland.
Q. And how do you arrive at that conclusion?
A. Only because she told me she had had some breast work done
and she has scars.
Q. And you're noting the scars there below the left breast?
A. Yes.
Q. How are you certain that's your husband in that photo?
A. I'd know Lieutenant JG Wiggan's face anywhere.
Q. I'm showing you P-11 [Photo P-11 of PE 2 being published
electronically to the witness and members]. Do you recognize the
person on the left there?
A. Yes. That's Lieutenant JG Wiggan.
Q. I'm showing you Photo P-12 [Photo P-12 of PE 2 being
published electronically to the witness and members]. Do you
recognize who the--that arm and the upper arm in that photo?
A. Yes, sir. That's Lieutenant JG Wiggan because as a child
he had a shot while he was in Jamaica and it left a scar and he has a
mole right below that, as well.
Q. And do you have any idea who the person is on his lap
there?
A. I do believe that's Lieutenant Commander Penland due to the
red----
Q. Why do you believe that?
A. Due to the same red fingernail polish.
563
Q. I'm showing you what is marked as P-29 of Prosecution
Exhibit 2 [Photo P-29 of PE 2 being published electronically to the
witness and members]. Do you recognize--do you recognize the torso in
that photo?
A. Yes, sir. That's Lieutenant JG Wiggan because----
Q. How is it that you recognize that torso as being your
husband's?
A. Because he's always tried to get a six pack and he's always
been slightly chubby around the middle and he's never been able to
accomplish his goal.
Q. But that torso, you recognize that as your husband's?
A. Yes, sir.
Q. And is there anything unique about the penis that would
indicate to you who it is?
A. Yes. He got circumcised when we were stationed in Hawaii
and he still has the scar ring around it from being circumcised as an
adult.
Q. So you recognize that penis to be the penis of your
husband?
A. Yes, sir.
Q. P-5 is--[ Photo P-5 of PE 2 being published electronically
to the witness and members]. Do you recognize who is in that photo or
who that----
A. Yep. That's Lieutenant JG Wiggan because he has a mole on
his genitalia.
564
Q. The mole there on the shaft of the penis?
A. Uh-huh.
Q. And there's also--did you see any other moles there?
A. Yes, there are. And the only reason I know the other moles
is because he tried to use my Veet one time to clean himself off,
extra hair, and he used it too long and he ended up actually taking
the skin off. So because he couldn't walk very well and he couldn't
move very well, I would have to clean him off and help him dry the
area and put ointment on it so it wouldn't get infected.
Q. So when he had removed off his pubic hair, hair in that
area----
A. Uh-huh.
Q. ----you saw the mole on his thigh?
A. Uh-huh.
Q. Do you know whose--this is Photograph P-8 [Photo P-8 of PE
2 being published electronically to the witness and members]. Do you
know whose penis it is in that photograph?
A. Yes. Lieutenant JG Wiggan's.
Q. And why do you believe it's your husband's penis?
A. The mole and also, like I said, the scar and that came from
getting the circumcision.
Q. When exactly was your husband circumcised?
A. It was right after I left to go to--for my conversion to
career counselor, so it was right after we got married. It was right
after that. It was supposed to be a present, so to speak, when I met
565
him again and he was circumcised.
Q. So he was circumcised as an adult?
A. Yeah, he was circumcised as an adult.
Q. I'm now showing P-38 [Photo P-38 of PE 2 being published
electronically to the witness and members]. Do you recognize the
person in that photograph or the two people in that photograph?
A. Yes. That's Lieutenant Commander Penland.
Q. How do you recognize Commander Penland?
A. From the tattoo and the red fingernail polish once again,
and Lieutenant JG Wiggan's genitalia from the circumcision and the
mole.
Q. [Photo P-26 of PE 2 being published electronically to the
witness and members]. And who do you recognize this person to be?
A. That's Lieutenant Commander Penland from the tattoo, the
fingernail polish and the bracelet.
Q. How is that you recognize the bracelet?
A. She was wearing it the day she came to the restaurant, as
well. It's a pretty bracelet, so I recognized it.
Q. [Photo P-16 of PE 2 being published electronically to the
witness and members]. And in this photo here what does that photo
depict? And that's number P-16.
A. That's--like I said, I remember that's the mole on
Lieutenant JG Wiggan's genitalia and the red fingernail polish that
Commander Penland was wearing.
566
Q. So you believe that to be Lieutenant Commander Penland's
body on the left-hand side?
A. Yes, I do.
Q. Just based on the nails?
A. Uh-huh. Yes, I do.
Q. And you had the opportunity to review all these
photographs, correct?
A. Yes, I did.
Q. Did you see those red fingernails in many of the other
photos?
A. Yeah, they're in almost every photo.
Q. Did you see anything in these photos that would indicate to
you that the people photographed were not your husband and the accused
in this case?
A. No, I didn't.
Q. Chief, I'll move on, just finish up here. What effect
has--did this episode have on you from the time when you were first
contacted by a person calling themselves Lieutenant Commander Finland
until when you and your husband finally decided to divorce? What kind
of toll did this take on you?
IMC: Objection. Relevance.
MJ: Lieutenant Commander Messer?
TC: Sir, I would say that it goes--it's relevant in that it
goes to the effect that the conduct of the accused had on this Sailor
and would go to the conduct unbecoming specification, Specification 1
567
of Charge III.
MJ: Overruled.
Q. You can answer the question.
A. Sir, I would say it really made me look at how we conduct
ourself in the military, and I prided myself on upholding a higher
standard than that. I prided myself on making sure this didn't affect
my job. I kept my personal life my personal life until it affected my
work center, when I was pretty much ordered to go over to the other
command, to let them know what was going on. At that time only a few
people knew anything about my personal life and I kept it to myself.
So I had to come to work everyday dreading that I was
going to get a phone call or dreading that I was going to get an
e-mail, just thinking, okay, now that I got this, how do I work
everyday to take care of the people I'm supposed to take care of. So
for me it was more of, okay, if this is the situation and the marriage
is over, okay, I accept that, but I don't have to accept the other
parts of it.
So when everything came to a head and the people in the
office were complaining about the phone calls and this and that and
they were just pretty much fed up, I was forced into a situation,
well, okay, now I have to tell people higher than this. Now I have to
expose my personal life to my chain of command, which I hold in very
high regard and I don't want them to see or think that my personal
life affects me as a Sailor. I wanted them to see me working
everyday, to give them and give the crew what they wanted.
568
So I was upset. I felt that in a way that I let down--I
let down the people in the Admin Department because they had to deal
with my personal life, affecting their work performance, because of
constant phone calls and interrupting their day. It wasn't productive
for them. I mean, as long as it was me and I was dealing with it and
it was just me personally and it didn't come into work, that's my
life. But when it affects them, that affected our readiness in the
work center and that affected us as a whole, and they consider
themselves to be a part of my family like I consider myself to be a
part of their family. So it affected them.
Q. You talked about your shipmates. Did the actions of
Lieutenant Commander Penland affect your ability to do your job?
A. Sir, up until that point no one--until the phone calls and
it really just got bad, no one really had any idea of how bad it was.
I kept it to myself and I prided myself on work is work, home is home.
When I walk outside the door and I walk on the ship, it's time to go
to work. It's not anybody's--I know I say business, but it's me. I
didn't feel that--as they say, intrusive leadership, I didn't feel
that that part of intrusive leadership needed to come into my work
center because I was there for the crew, I was their career counselor.
They needed me every day of the week, no matter how bad I felt. So
when I walked on the ship, I came to work. When I left the ship, I
had to go home and cry and call my aunt on the phone every hour on the
hour to get through the day, then that's what I did at home. But it
can't come to work. That's just how I felt. It's not supposed to be
569
at work.
Q. But you admit that this had--it took a toll on you?
A. Yeah, it took a toll on me, and I won't say that I wasn't
upset. I won't say that I wasn't mad. I mean, everybody feels that
way, even--everybody goes through it.
And as a woman, you feel betrayed, you feel upset, but
every day I came to work. Work was--to me work was the thing that
kept me going. I knew that no matter what, when I walked on board the
ship, 400-some Sailors needed something from NC1, no matter how small,
no matter how little it was. Somebody sitting in there, one of the
girls I remember, we were underway, she ended having a miscarriage,
but she didn't know she was pregnant, so, hey, she needed NC1. Okay.
This one needed NCI, that one needed NC1.
So regardless of how I may have felt about me, somebody
needed NC1. They didn't need Kim in the corner sitting at home
crying; they needed NC1 and they needed the Sailor with senior
leadership to be there for them no matter what.
Q. Has the actions of Lieutenant Commander Penland changed
your opinion as to officers in the U.S. Navy?
A. Sir, for a while I was a little jaded, but then I--the CO
on board the MOBILE BAY, the CMC, the XO, I mean, they were so
supportive. I mean, at first they couldn't believe it was true, you
know, and I remember the XO saying "If you didn't have all this paper
in front of me, I would never think a lieutenant commander would want
an E-6's husband and not in a million years because why would we need
570
that? We don't need that. We're Naval officers. We don't need to go
after someone else's spouse," she said, "but because you show me the
documentation, I see it, I believe it." She said, "What would you
like done?" I said, "I just want an apology, no more phone calls and
I'm a happy camper." I said "That's all I request for the command to
help me with." I don't need any more or any less because I felt that
I didn't want it to keep bleeding into work. I just want it to end.
And once it ends, I do my side on my part for my personal life, I get
my divorce done, I move on. I just don't want it to affect my work
center anymore. And then they, you know--that's just how I felt about
it.
But as far as Naval officers concerned, after leaving that
command and going to where I currently work now, I feel that we all
have people in our organization that don't always make us look the
best and one person makes--as they say when you do diplomatic stuff,
one person can ruin it for everybody even though nobody else did the
same thing, and that's just one person. So we should all not be
judged on one person's inability to uphold honor, courage and
commitment, because if we do that, then everybody suffers. This
organization is made of many people. It's diverse. So one person,
no.
But I do feel sympathy for Lieutenant Commander Penland. I
feel pain that she's sitting here now. I feel that she was misled I
think to a certain point by my spouse, and regardless of the status of
our relationship and I felt that she wasn't able to do a lot of things
571
because he gave her wrong information and she believed him and she
believed that they had a relationship and she may have not knowingly
known in the beginning, or maybe she did; I'm not quite sure. But
somewhere along the line she was misled to do some of the stuff she
did. But then after she knew what was going on, then it's all her.
Q. And, Chief, I want to switch gears a little bit. On the
21st of February 2007 do you remember where you were? Well, let me
ask you this. Did you have a phone conversation with your aunt?
A. Oh, yeah. The 21st of February I was----
Q. Well, where were you when you had that conversation?
A. I was on duty. I had come back to the ship because we were
shorthanded and we were in the shipyards; and even though technically
when you're in school, you're not supposed to come back to work and
stand watch, I was like, "Hey, I'll come back and help you guys out."
So I came back to the ship to stand watch on the quarterdeck because
we were shorthanded. So normally at night I get--me and my aunt, we
talk and my mom calls me. So we do a three-way call on my--from my
phone because I'll pay the--you know, it's cheaper for me to do it
than them to pay the bill. So me and my aunt were talking and----
Q. Do you remember the approximate time?
A. This was going around--it was after taps.
Q. Okay.
A. Because I was in the barge and I was sitting by the window
trying to get a signal on my phone to make sure I could talk to them
and I was trying to be real quiet.
572
Q. So you're talking to your aunt and what happened?
A. And then I get the beep on my phone and I'm like, "Oh." I
say, "Hey, Aunt," I says, "my mom's calling in." She was like, "Oh,
okay," you know. So we go through our normal routine of doing our
little three way. Well, it wasn't my aunt. It was----
Q. Who was it on the phone?
A. It was Lieutenant Commander Penland.
Q. How did you know it was Commander Penland?
A. Because I--because she said my name and then I said her
name and then she acknowledged it, and then she went into this----
Q. When you say she acknowledged it, how----
A. She acknowledged--she acknowledged that I said--I said----
Q. What did you say to her?
A. I said, "Hello." And she said "Hello." She said, "Kim."
I said, "Is this Sy?" She was like, "Yes." And I was like, "Why are
you calling me?"
Q. And what was the response?
A. And then she went into, "If you're going to try to get--if
you're going to try to do somebody in in the Navy, you ought to know
what you're doing. You don't--you don't make accusations and you
don't tell people things if you don't know how to do it. I know how
to do it. You don't know how to do it." And I was like wow. Then
she went into "I even tried to tell you how to get a divorce and how
to get more money and how to do this and how to do that and you
wouldn't listen. So I'm just telling you you don't know what you're
573
talking about and you--I'm not going down." And I was like, "Hey." I
said, "Well, let me tell you what my commanding officer told me to
tell you the next time you called me on the phone." She was like
"What's that?" Okay. Click, and I hung the phone up.
TC: Request permission to approach, sir.
MJ: Very well.
TC: I'm retrieving Prosecution Exhibit 18 from the court
reporter. Request permission to publish Prosecution Exhibit 18 to the
members, sir.
MJ: Very well.
[PE 18 was published electronically to the members and witness.]
Q. Chief, I want you to take a look on your monitor. This is
Prosecution Exhibit 18. It's the cell phone records for the phone
number (619) 862-1559, the 1st of February until the 28th of February.
And I know it's very hard to read. I'm going to try to zoom in as
much as possible. Do you see on the portion of the record I'm showing
you there--and just for the record this is--well, it's marked at the
top as Page 22 of 78 of Prosecution Exhibit 18. You see several calls
listed there. Do any of those numbers appear to be your number, your
cell phone number? Can you see that clearly? Or let me direct you----
A. [Reviewing PE 18.] Yes, I see. I see my number on there.
Q. I'm going to direct your attention to line items 453----
A. Yes.
Q. ----454, 455 and 456.
A. Yes. That's my phone number.
574
Q. That, and just for the record could you please state what
your phone number was at that time?
A. Oh, and it still is. My cell phone number is (951) 313-
4941.
Q. And the time listed is between 9:11 to 9:12 p.m. on that
date. Does that correlate with your knowledge of when that phone call
was received from you--received by you from Lieutenant Commander
Penland?
A. Yes, somewhere in there because I know it was going towards
taps and stuff like that.
Q. And the timing of that phone call seems accurate to you?
A. Seems about, yes.
Q. Now, you received--did you receive multiple calls from her
or was it only one call?
A. Well, I guess there were other calls, but I didn't get----
Q. Well, don't refer to the record. To your knowledge was----
A. Oh, to my knowledge, no, I don't recall any. I just recall
the one call that came through that I answered.
Q. But you're certain that that is your cell phone number
listed there?
A. Oh, yeah, that's my cell phone number.
TC: Subsequent to--
Thank you, sir. I'm returning Prosecution Exhibit 18 to
the court reporter.
MJ: Very well.
575
Q. Now, subsequent to this phone call, what happened? What
did you do?
A. I'm sorry.
Q. After you received the phone call that evening, did you
tell anyone about it?
A. No. It was just me and my aunt on the phone.
Q. Okay. Did----
A. So I went to bed.
Q. What happened the next day?
A. The next day I get called into the CMC's office.
Q. And what was discussed?
A. Well, the CMC was like, "I just received a phone call from
your aunt." I was like "Huh?" I'm like, "You received a phone call
from my aunt?" He was like "Yeah. My [sic] aunt wants to know what
are we are going to do in regards to this Syneeda Penland lady
constantly calling you and harassing you. What is our response to
take care of it?"
Q. To your knowledge, did the chain of command notify anyone
from Commander Penland's chain of command?
A. From what I understand from what master chief said, he
said, "I'll be contacting their CMC and the CO and XO and they'll be
contacting her upper chain of command."
Q. And so this was the day after this call was received?
A. Yes.
576
Q. So that would have been the 22nd of February?
A. Uh-huh.
TC: All right. Chief, thank you very much. I have no further
questions.
MJ: Captain Callahan.
IMC: Thank you, Your Honor.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good afternoon, Chief.
A. Good afternoon, sir.
Q. Chief, isn't it true you also called--you called Commander
Penland quite a few times?
A. And, sir, yes, I testified to that. Yes, I did.
Q. Some of those calls were pretty long calls, too, weren't
they?
A. Yes, sir. Some of them were plenty long calls.
Q. And, Chief Wiggan, your testimony here today was you found
the photographs on your husband's computer and you placed them onto a
thumb drive, correct?
A. That is correct, sir.
Q. And from the thumb drive you placed them onto your
computer, your personal computer?
A. I did eventually put them on the laptop, yes, I did.
577
Q. Your personal computer, did you take your personal computer
or did you take your laptop to show Commander Doud the photographs?
A. I had----
Q. I mean--I'm sorry. Did you take your personal computer or
did you take the thumb drive?
A. I had both.
Q. You took both to Commander Doud?
A. Yes. And when he came to the ship, I still had both.
Q. You still had both.
A. He came to us in the shipyard and I still had both things.
He told me not to alter them, not to touch them and not to delete them
off of either/or entity.
Q. Did you give him the thumb drive?
A. He took it and he made--he made a----
Q. A copy?
A. From what I understand he had it with him. I don't know
what he did with----
Q. So you still have the original thumb drive?
A. No, I don't have the thumb drive at all.
Q. What happened to the thumb drive?
A. I don't have the thumb drive.
Q. Did you give it to Commander Doud?
A. I think--I remember giving it to him a while back. I never
returned--I never got it returned to me.
578
Q. He didn't give it back to you?
A. No.
Q. What about your laptop computer?
A. My laptop, after it--after I assumed that this was totally
over, I had gotten no phone calls, I took all that stuff off my
computer. I don't want it.
Q. Now, you showed those photographs to Petty Officer
Cunningham, correct?
A. If I'm not mistaken, I may have because I--yeah, I may have
showed it to YN1 because she was the legal yeoman on board the ship.
Q. Did you also show them to your commanding officer and your
executive officer?
A. I showed them to the--the commanding officer and the XO,
no. I had the--no, I didn't show them to them personally, no.
Q. Are you sure?
A. The only person that I know saw them was the CMC.
Q. Did you show them to Petty Officer Lee?
A. I don't personally recall that one. And I won't say I may
or may not have; I'm not quite sure.
Q. Your testimony is you changed your cell phone number four
times?
A. Yes, sir.
Q. Over what period of time did you change your cell phone
number four times? Was this over three months, over four months, over
a year?
579
A. Over the time span between the phone calls that started
with Lieutenant Commander Penland.
Q. When you and your husband filed for divorce----
A. Uh-huh.
Q. ----the date that the two of you put down as being
physically separated from was from March of 2006, correct?
A. That's--because that's when I went on deployment.
Q. And that's the date that the two of you have as your
physical separation date in your divorce, correct?
A. That's the date that he put down, yes.
Q. That's the date that he put down and that's the date that
you signed agreeing to the physical separation?
A. Yeah. My lawyer--as me and my lawyer talked about that and
he said--he said, "Do you have a problem with this date as far as the
physical separation," sir. I said, "I don't know in regards to if
there's a problem with the date." He said, "No, I don't really have a
problem because you were on deployment." So he said, "This may
expedite you being done a lot faster because they're going--he's going
from the time you left to go on deployment."
Q. But it's your testimony here in court today that's not the
date the two of you really physically separated?
A. Actually, if you--if--actually, sir, when I came back from
deployment, he was at home. Then he left. Then he came back. Then
he left. So, as far as physical separation, we did physically
separate in the month of March because I went on deployment. When I
580
got back and I even--I even recall because I think it was in January
we went physically, both of us, down to the courthouse and he--we both
pulled our original first divorce papers and then he refiled later.
Because we were working on our relationship, so we pulled the papers
back. Then he refiled at a later date.
Q. Now, when you claim to have found these photographs on your
husband's computer, you said he was drinking heavily?
A. Yes, he was.
Q. And he came in and threatened to kill you?
A. He sure did.
Q. He choked you and knocked you to the ground?
A. He choked me till I saw stars and then----
Q. So you partially passed out?
A. Yes, partially.
Q. Did you report that to the police?
A. Actually I called--I called--I called my aunt, the person I
call when everything is topsy turvy in my world. I called----
Q. But did you report it to the police?
A. No, I didn't. Actually, no, I didn't.
Q. You did not report it to the police.
A. No, because----
Q. And you didn't want him to leave because, even though he
had just choked you out to the point you were almost unconscious, he
was drunk and you were afraid to have him driving?
581
A. Sir, I wouldn't have let anybody drink and drive. I don't
care how I feel about you; nobody's drinking and driving, not around
me, no.
IMC: Thank you. No further questions.
WIT: You're welcome.
MJ: Lieutenant Commander Messer?
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. Chief, just a couple quick follow ups. To your knowledge,
were you ever legally separated from your husband?
A. No, sir, I was not ever legally separated from my husband.
We had filed for divorce, but we were never legally separated.
Q. And we've heard lots of testimony about the status of the
relationship with your husband, but when you guys reconciled in mid-
September, did you begin a sexual relationship again?
A. Yes, in mid September.
Q. And how long did that sexual relationship continue?
A. Maybe till about October, October time frame.
Q. And then did--after October, did you reengage again----
A. No.
Q. ----or was that the end?
A. No.
Q. So from mid September until October you were involved in a
sexual relationship with your husband. And during that period would
you say you were acting like a couple?
582
A. Yes, we were. We even went looking for new houses and
stuff like that and shopping and stuff like normal married couples do.
TC: Thanks, Chief. I have no further questions.
WIT: No problem, sir.
MJ: Captain Callahan?
IMC: Briefly, Your Honor.
RECROSS-EXAMINATION
Questions by the individual military counsel:
Q. Chief, when you were--on the day you discovered the
photographs that was early January?
A. Yes, sir.
Q. Did you call Commander Penland the next day to discuss the
fact that her husband--your husband had tried to kill you?
A. That's when the "Hang in there" e-mail came right after
that.
Q. So you did call her that morning and discuss it with her?
A. No. Actually he was talking to her and he called her on
the phone and then I--then he gave me the phone----
Q. Do you recognize----
A. ----and then I spoke to her on the phone.
Q. So you spoke to her on the phone?
A. Yeah, because he gave me the phone and I spoke to her on
the phone.
Q. Do you recognize the phone number (951) 679-8084?
A. That's our house phone.
583
Q. That's your house phone?
A. Uh-huh. That was the house phone we had. He called her.
IMC: Thank you.
WIT: You're welcome.
MJ: Lieutenant Commander Messer?
TC: Nothing further, sir.
MJ: Questions from our members? Negative response from all
panel members.
[The witness was duly warned, temporarily excused and withdrew from
the courtroom.]
MJ: Further evidence from the prosecution on the merits of this
case?
TC: Sir, the Government would call Mr. Brian Duffy.
MJ: You want to recall Mr. Duffy. Approximately how long do
you anticipate his testimony?
TC: Ten minutes, sir.
MJ: Very well. Bailiff, please call the witness back.
[The prospective witness entered the courtroom.]
IMC: Sir, if I may, there's a 39(a) session. I have an issue I
need to address with the Court immediately, with the Court's
permission.
MJ: Very well. Members, please cover your notes. Subject to
my standard instructions, please depart the courtroom and remain in
the deliberation area.
584
BAILIFF: All rise.
[All persons did as directed.]
MJ: Members may depart.
[The members withdrew from the courtroom.]
[The court-martial recessed at 1230 hours, 22 May 2008.]
[END OF PAGE]
585
[The Article 39(a) session was called to order at 12130 hours, 22 May
2008.]
MJ: Please be seated.
[All persons did as directed.]
MJ: This 39(a) session is called to order.
Let the record reflect that the members have departed from
the courtroom.
Captain Callahan?
IMC: Sir, my client has informed me that she would like to
relieve me of my duties in representing her and request that I bring
that to the Court's attention immediately. So I am bringing it to the
Court's attention so the Court can act on it, as the Court sees fit.
MJ: Very well. Lieutenant Commander Penland, is that your
desire?
ACC: Yes, sir, it is.
MJ: Have you had an opportunity to discuss this matter with
your defense counsel?
ACC: I just discussed it, sir, during the cross-examination of
Chief Wiggan. There was specific information concerning detailed
information about the phone records and he failed to ask her the
information. I went over it with him repeatedly and he still failed
to cross-examine her, and I am----
MJ: Okay. Why don't we take another opportunity here for a
recess. If you could discuss this matter with him and see if you can
reach some sort of compromise or agreement. If not, I'll give you
586
additional time to discuss relieving your counsel, if you can procure
the services of a--or at least some advice from another individual
counsel. But also you have the option to proceed by yourself and that
certainly is one option that's available; there's certainly many
pitfalls to that choice.
So we'll take a recess here. In fact, we'll take a lunch
recess. I'll ask the members to rejoin us and at that time I'll place
them in a lunch recess and give you some additional time to explore
those options and also to discuss this matter further with your
defense counsel.
ACC: Yes, sir.
MJ: Anything else we need to discuss outside the members'
presence?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. Bailiff, if you would please ask the members to
rejoin the court. This 39(a) session is concluded.
BAILIFF: Yes, sir.
[The Article 39(a) session concluded at 1232 hours, 22 May 2008.]
[END OF PAGE]
587
[The court-martial was called to order at 1232 hours, 22 May 2008.]
TC: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: Court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Members, this matter is going to take some additional time.
Therefore, I think it's appropriate to send you on a lunch recess, and
when you do return, we'll determine what further evidence can be
produced for your consideration. If we could reassemble at 1330
hours. Subject to my standard instructions, if you would please cover
your notes, members. You may depart on a lunch recess.
BAILIFF: All rise.
[All persons did as directed.]
MJ: The members may depart.
[The members withdrew from the courtroom.]
MJ: Court stands in recess. Counsel, if we could reassemble in
my chambers at 1300 hours for an 802 conference.
[Mr. Duffy was excused and withdrew from the courtroom.
[The court-martial recessed at 1233 hours, 22 May 2008.]
588
[The Article 39(a) session was called to order at 0814 hours, 23 May
2008.]
MJ: Good morning. This 39(a) hearing is called to order in the
case of the United States v. Lieutenant Commander S. L. Penland,
Supply Corps, United States Navy.
Let the record reflect that all parties present prior at
the last session of court are present before the Court this morning,
except for the members who remain in the deliberation room obviously
for this 39(a) session.
Let me verify that Lieutenant Commander Penland is present
before the Court, attired in the appropriate uniform with all the
awards and decorations she's entitled to wear.
IMC: She is, Your Honor.
MJ: Thank you, Captain Callahan.
MJ: Good morning, Lieutenant Commander Penland. How are you
doing today?
ACC: Just fine, sir.
MJ: Very good. Let me put on the record a number of matters
that have transpired since our last session.
Before the lunch recess, Lieutenant Commander Penland
indicated she wanted to relieve Captain Callahan as her defense
counsel. I encouraged her to discuss that matter further with him,
and I hope you've had an opportunity to do so. Have you had that
589
opportunity, Commander?
ACC: Yes, sir, I have.
MJ: Very good. Do you need more time to discuss this matter
with him?
ACC: No, sir, I don't.
MJ: Also, after the recess, for that purpose and others, it was
brought to the Court's attention that Captain Callahan and others had
concern for Lieutenant Commander Penland's safety. Apparently there
was some concerns that she might harm herself, and the Court suggested
to the parties that her command be apprised that an appropriate
medical examination be offered, as necessary, to make a determination
as to whether Lieutenant Commander Penland needed further assessment
and treatment. Apparently that was also accomplished during the recess
yesterday, and the Court has received Appellate Exhibit forty----
REPORTER: XLII.
MJ: ----XLII, indicating that Lieutenant Commander Penland was
offered assistance from the command medical officer or further
assistance at the Navy hospital here in San Diego and declined that
assistance. So we'll discuss that in a little more detail this
morning to make sure that you're feeling up for this trial.
We also discussed other issues concerning Captain
Callahan's continued representation of Lieutenant Commander Penland
and some of the options that remain should she desire to relieve him
from his responsibilities at this general court-martial.
Counsel concur with my summation of our 802 conference from
590
yesterday afternoon?
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: Very well. I suppose I'll start with the basic question.
Lieutenant Commander Penland, do you still wish to relieve
Captain Callahan as your defense counsel?
ACC: Yes, sir, I do.
MJ: And you've discussed this matter thoroughly with him?
ACC: Yes, sir, I have.
MJ: Have you discussed this matter with any other attorneys who
might be able to provide you legal advice concerning his relief?
ACC: No, sir, I have not.
MJ: Did you have an opportunity yesterday to make such
consultations if you desired to do so?
ACC: No, sir, I have not.
MJ: I believe you indicated yesterday during our last session
on the record that you had some concerns about Captain Callahan
because he did not ask questions that you felt were pertinent
concerning phone records. Is that substance of what you said?
ACC: Along with other issues, sir.
MJ: Very well. We can get to that in a moment.
The first thing I wanted to make sure, though, is that you
fully appreciate and understand the consequences of your decision to
relieve Captain Callahan and also I must be satisfied that you are
competent to make decisions concerning his relief. Understood?
591
ACC: Yes, sir.
MJ: Have you had an opportunity to discuss these matters with
him, as well?
ACC: Yes, sir, I have.
MJ: Well, let's just talk about in general terms, and I don't
want to get into your specific medical history. But with regard to
your ability to make these decisions, do you feel that you have the
ability to make these decisions?
ACC: Yes, sir, I do.
MJ: And what makes you feel that you are competent to make
these decisions on your own behalf?
ACC: I don't see no reason that I appear to be incompetent to
make these decisions, sir.
MJ: Are you presently under any mental or physical disability
that would preclude you from making such decisions?
ACC: No, sir, I'm not.
MJ: Have you ever had any history or treatment of any sort of
mental or physical disability that would preclude you from making
these decisions?
ACC: No, sir.
MJ: You understand the nature and purpose of this court-
martial?
ACC: Yes, sir, I do.
MJ: In your view, what is that purpose?
592
ACC: The purpose of this court-martial?
MJ: Correct.
ACC: That I have been brought up on charges for alleged
adultery----
MJ: And it's----
ACC: ----and other charges, so----
MJ: And so it's to examine whether there is sufficient evidence
to support the charges that have been brought against you?
ACC: Yes, sir.
MJ: And do you understand the nature of the trial process?
ACC: Yes, sir, I do.
MJ: Are you presently taking any medication that would inhibit
your ability to make sound judgments concerning the representation of
this case?
ACC: If you can give me a list of those medications and if I
understand the side effects of those medications, I could probably
answer that question thoroughly. But right now, sir, I can't answer
that question.
MJ: Well, I don't think I can answer your question, as well,
since I'm not a medical officer.
Are you taking medications that has been prescribed for you
that have side effects that impair your judgment?
ACC: No, sir.
MJ: Are you under the influence of any drugs or medications or
alcohol that would impair your judgment at this trial?
593
ACC: Pain medication for menstrual cramps, sir.
MJ: And do you believe that impairs your judgment such as----
ACC: No, sir.
MJ: Okay. With regard to the nature of this trial, do you
understand the role of a defense attorney?
ACC: Yes, sir.
MJ: And what is your understanding of that role?
ACC: For him to defend me and represent me throughout the course
of these proceedings.
MJ: And you've had adequate time to prepare for this trial with
your defense attorney?
ACC: No, sir.
MJ: You have not?
ACC: No, sir.
MJ: With regard to his representation of you, do you understand
that a defense attorney has special legal skills, training and
experience that would be applied at this trial in your representation?
ACC: Yes, sir, I do, but there has been a number of continuances
that's been requested to allow us time to interview certain witnesses,
to allow us to prepare to go further in this trial and that has been
denied. So I'm not questioning that Captain Callahan is competent. I
feel that he is competent to represent an accused, but I feel that
there has not been enough time allowed for us to properly prepare for
the trial. That's my issue, along with other issues, sir.
MJ: Very well. And you understand that, as an advocate, it is
594
Captain Callahan's responsibility, as he has done, to make those
requests for continuances?
ACC: Yes, sir. You denied them.
MJ: That's not his responsibility, though.
ACC: I understand that, sir.
MJ: Very well. So you're dissatisfied with the Court's rulings
concerning those continuances?
ACC: Yes, sir. Part of my decision, sir.
MJ: Very well. With regard to your defense counsel's
responsibilities, you have indicated that he has been deficient in at
least one respect. Are there other respects that you'd like to share
with the Court in terms of his deficient representation?
ACC: Not necessarily his, but actions of the prosecution, sir.
MJ: So you're generally dissatisfied with the prosecutor's
actions?
ACC: I'm dissatisfied with the entire proceeding, sir, to
include yourself, sir.
MJ: Understood. And what is your request of the Court?
ACC: To request that you recuse yourself in this case, sir.
MJ: On what grounds?
ACC: Sir, I've just been informed just this morning by DOD IG
that my most recent complaint of reprisal, there is only three people
who are currently under investigation and there has been a number of
people named in my complaint to include the GCMA himself, and I feel
that this proceeding needs to be declared a mistrial so the outcome of
595
the DOD investigation--because I most recently as this morning re-sent
them my complaint of reprisal which included specific information that
has transpired throughout the entire proceeding of this process, sir,
and I am requesting time to allow that investigation to be complete in
its entirety.
MJ: And this is the investigation that tracks back to what, is
it April of last year?
ACC: April of this year, sir.
MJ: April of this year. That was your first IG complaint?
ACC: My first IG complaint dates back to March of 2007. My EO
investigation complaint was dated the 21st of June of 2007. My
Congressional inquiry was dated the 21st of February 2008, and my
recent complaint of reprisal was dated the 10th of April of 2008.
MJ: Let's talk a little bit, and we'll get back to your request
that I recuse myself, given that basis.
With regard to your representation in this case, I
understand Captain Callahan is either the fifth or sixth defense
attorney assigned to assist you in this case; is that correct?
ACC: Sir, I think the prosecution can probably better answer
that, that the command should have letters of who all they have
officially detailed to represent me, and there's only been two letters
that I received. That was from Lieutenant Robertson and Captain
Callahan. And Lieutenant Head was only detailed to represent me in an
Article 32 investigation in January; he was never officially detailed
to represent me as counsel. And Lieutenant Stephenson [sic], he
596
e-mailed me June 6th of last year and told me that he never received a
detail request from the command; the very next day filed their
referral of the charges.
So I've been extremely confused throughout this entire
process myself.
MJ: Well, let's start, if we can, with Lieutenant Commander
Stephens. Was he the first military attorney assigned to assist you
concerning these charges?
ACC: No, sir. Lieutenant Commander Lashleeay [ph] was the very
first defense counsel that I sought advice from; and there was
wrongful command influence by Lieutenant Commander Marshall with
Lieutenant Commander Lashleeay that dated back to their initial
communication as early as the 14th of March of 2007. And there's been
numerous e-mails transpiring to include voice recorded messages that
Lieutenant Commander Lashleeay communicated to me as far as threats of
communication and wrongful command influence by Commander Ward.
Then Lieutenant Commander Stephens in March of 2007, late,
came on board. He was still waiting for more information to come back
from the command. I, as--like I stated earlier, June 6th of 2007
Lieutenant Stephens e-mailed me and told me--and I have copies of all
the documentation--that he had not been properly or officially
detailed by the command, but he's still here to provide me assistance,
if necessary.
Then I filed the IG complaint on the 21--I'm sorry--the
equal opportunity complaint, because I was told that that portion of
597
my IG complaint was never investigated, so I filed a formal EO
complaint on the 21st of June of 2007, and at that point I was made
aware that the command had complete knowledge of my entire IG
complaint in its entirety.
And I requested to have Lieutenant Commander Marshall be
relieved at that time during the interview with Captain Riley [ph],
however, she's been allowed to stay on board throughout this entire
proceeding to continue to provide assistance or influence or after the
charges were preferred, obstruction of justice. And I was informed in
January 2008 that she was never investigated.
And now----
MJ: Okay. Well, can we focus on your defense counsel
representation, though, please.
ACC: Yes, sir.
MJ: I want to again identify who was representing you, who was
detailed to represent you, who provided assistance to you during the
course----
ACC: Yes, sir.
MJ: ----of the proceedings concerning the charges. So we've
got Lieutenant Commander Lashleeay.
ACC: She was providing legal advice for maybe a week and a half.
MJ: And Lieutenant Commander Stephens.
ACC: He was providing legal advice up until June 28th; it was
that morning at the first Article 32 investigation that he requested
to be removed.
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MJ: And then next was Lieutenant Head?
ACC: Lieutenant Robertson----
MJ: Lieutenant Robertson.
ACC: ----was detailed to represent me at the Article 32
investigation in August.
And NLSO Southwest and NLSO Northwest had both been named
in my IG complaint, which I don't understand why they were still
trying to detail an attorney to represent me as far as Lieutenant
Head, which probably explains why he was only detailed to represent me
at the Article 32 investigation.
But on November 9th I e-mailed Captain Harr and he
concurred to have Lieutenant Robertson removed, from leaving me as
defense counsel.
And for two and a half months, from November until January
the 22nd, I was without counsel, and I received an e-mail from
Lieutenant Head and notification that he is being detailed to
represent me, but, according to the letter, he was only detailed to
represent me at an Article 32 hearing.
And I then requested IMC which is when Captain Callahan was
officially appointed to represent me.
MJ: And also, during this process, you also had civilian
counsel at some point. Who was that again, please?
ACC: A Mr. Clifton Blevins.
MJ: Mr. Blevins.
599
ACC: Yes, sir.
MJ: Okay.
ACC: And you are aware of the events that transpired back in
November which is why he was removed from representing me, to include
Lieutenant Robertson.
MJ: And he represented you at the Article 32, as well as
Lieutenant Robertson?
ACC: The Article 32 investigation of August the 24th, yes, Mr.
Blevins did represent me. And as an outcome of that, because we never
did receive official transcription or written transcription of that
proceeding, he did request to have this trial dismissed, but nothing
was approved from the command.
MJ: I'd next like to discuss again in general terms--and I'm
not asking you divulge any confidences between your and your
individual military counsel, Captain Callahan--but if you could in
general terms outline your dissatisfaction that you feel that he's
provided you inadequate representation, and we can start with his
failure, in your view, to ask additional questions of NCC Lewis-
Wiggans.
ACC: Sir, at this point I would like to seek counsel from a
civilian attorney and I--that is my constitutional right and I'd like
to exercise that.
MJ: You had that opportunity yesterday afternoon, yet you did
not exercise that right. Did you have any confusion concerning your
rights to counsel?
600
ACC: Sir, can you repeat that, please.
MJ: I'll do it in reverse order. Are you confused with regard
to what your rights to counsel are at this court-martial?
ACC: No, sir. You said I had an opportunity yesterday
afternoon.
MJ: That's the second part of the question. Do you understand
your rights to counsel at the court-martial?
ACC: Sir, I do, but----
MJ: Okay.
ACC: ----to give me a 24-hour window to find an attorney, when I
didn't leave here until 1700 yesterday evening, that does not afford
anyone enough time to find a civilian counsel who could be prepared to
come in here this morning to represent me.
MJ: Well, it sounds like you've been--was your dissatisfaction
with your present defense counsel just that arose yesterday, or has it
been during the pendency of this proceeding? I'm trying to determine
when your dissatisfaction arose such that you felt the need to consult
outside counsel.
ACC: Yes, sir.
MJ: It arose yesterday?
ACC: Sir, it's been built up, but most recently yesterday,
definitely yesterday.
MJ: Okay. What about yesterday, aside from the questioning
concerning Ms.--NCC Lewis-Wiggan, was there anything else yesterday
601
that transpired that you felt constituted deficient representation on
his part?
ACC: Well, sir, my position now is I communicated with Captain
Callahan yesterday, and I only made reference to something, and for
him to completely misconstrue what I was communicating to him,
completely taken it out of context, and to have me--you know, I'm
still completely baffled by the fact that even the Court now is
questioning my mental capacity. And just before the court proceedings
yesterday I got a phone call from my mother informing me that she
has--she was undergoing a mammogram yesterday and she has a lump on
her breast and then that combined with menstrual cramps, and I can
probably go on and on and on, so it's taken toll on me. But for my
own attorney to even suggest that I probably communicated suicidal
gestures to him, to convey that to the Court, then I'm completely
dissatisfied with that. So----
MJ: Well, again I'm not privy to any conversations you've had
with your counsel, but he has, as you should know and I'll tell you
now, an obligation to the Court to raise those matters if he feels
there's a substantial basis. And we're all concerned about the mental
status of individuals who are undergoing courts-martial; it is a very
stressful experience and certainly--and I again can't put myself in
your shoes, but after yesterday's proceedings I'm sure that was very
difficult for you.
ACC: Well, sir, he asked me how could he assist me and Commander
Milner, he has been my advocate throughout my entire equal opportunity
602
complaint process, and I knew once he arrived that after I, you know,
have an opportunity to communicate with him, that that would probably
assist in calming me down. So whenever Commander Milner arrived,
within minutes I was fine, I was okay. But yet that has still been
communicated to the Court as far as questioning my mental state of
mind.
MJ: Wouldn't you agree, though, by Captain Callahan asking
Commander Milner to speak with you that was in your best interest,
that he was----
ACC: I asked him. As a matter of fact, I called Commander
Milner myself.
MJ: Okay. And----
ACC: And I asked him to wait for Commander Milner's arrival, and
at that point I didn't talk to anyone else. I just paced back and
forth. That was it. Sir, believe me, this has been going on for well
over a year. I have maintained myself.
MJ: And you've spoken eloquently here in court.
But again it's our concern that with regard to the
proceedings that an individual that has any sort of behavior that
might be of somewhat questionable nature, that that be explored.
Obviously if there was a more substantial basis, there are other
options in terms of mental health evaluations and assessments that
could be employed in this case. That was not deemed necessary.
But with regard to the concerns of your counsel, again he
has a duty to the court to bring those forward if there is some
603
substantial basis for it.
I want to also get back to the representation issue. You
indicated that there were certain questions that you would have
preferred he ask in addition to those he already asked of NCC Lewis-
Wiggan; is that correct? And I'm trying to get back to what you said
yesterday in court about the basis for relieving Captain Callahan.
ACC: Well, sir, there has been a lot of information that's been
communicated back and forth between Captain Callahan and I, that's
been communicated by both the command's SJA and the prosecution
primary focusing on the fact that not only does the GCMA, Admiral
Hering, needs to guarantee a conviction, also the command, the
Convening Authority, needed a guarantee of conviction to prove that my
IG complaints to have been frivolous.
So this morning I received confirmation from DOD IG and
there's the appearance of obstruction of justice, sir, and again I
request to have you recused so this can be investigated, or else I'll
make a formal complaint to the U.S. Attorney General.
MJ: Well, that may be your right.
ACC: Yes, sir.
MJ: Do as you wish. But again answer my question concerning
the additional questions you wanted Captain Callahan to ask of Ms.--
NCC Lewis-Wiggans. Were there additional questions you would have
liked him to ask concerning phone records?
ACC: Sir, I'm requesting to exercise my constitutional right.
604
I'm requesting to have Captain Callahan relieved so I can hire my own
civilian attorney, period.
MJ: And I'm determining if you have a proper legal basis to
make that request, and I can't make that basis--determination unless I
have a basis and I'm trying to ask you to cooperate by responding to
the questions I pose to you. Did you not understand that question?
ACC: Yes, sir, I do understand it.
MJ: Do you care not to respond to it?
ACC: Well, sir, I'm firm on my decision.
MJ: Do you not want to respond to the question I have asked you
concerning the additional questions for NCC Lewis-Wiggans?
ACC: Sir, when my defense counsel provided me a copy of phone
records that the prosecution just the day previously had had his own
paralegal to authenticate and when I communicated when--let's go back
to my defense counsels. There was only one defense counsel that I had
communicated to that outlined specific phone calls that took place
from the 1st of January all the way through the 5th of January, and
for the prosecution to try to omit those phone calls, that phone
reference, said that that is how Sprint sent him that information
whenever he did the subpoena request, when I could have easily gone on
line, printed out my phone record myself, authenticate it, and
especially if the wife herself is able to identify me when she's never
physically seen any parts of my body, but yet for you to even to rule
to allow certain evidence to be admitted, but yet to allow even these
phone records to be admitted which haven't even been authenticated by
605
the phone company themselves, and so when I asked him to cross-examine
her because I did have a witness who was en route to testify against
those phone calls and then he failed to cross-examine her again, and I
was adamant about my representation. Just like I asked Lieutenant
Robertson and I gave him Lieutenant Blevins--excuse me--Mr. Blevins
specific instructions not to sign off on anything, Your Honor, but you
still allowed it and you failed to honor my request for dismissal
based on the grounds that Lieutenant Robertson misrepresented me. So
I'm a little confused with the entire proceeding.
MJ: Let's go back again to the representation of your defense
counsel. Have you ever studied law? Do you have any legal training
or experience, Commander?
ACC: Sir, I'm a qualified Supply Officer, not an attorney.
MJ: Okay. So do you understand that there are certain rules of
procedures, rules of evidence that apply at this court-martial?
ACC: Most definitely.
MJ: And those bind your attorney in terms of what he can or
perhaps cannot do in terms of representing you, do you realize that?
ACC: Yes, sir.
MJ: Do you also understand that he has certain ethical
responsibilities above and beyond his representation to you concerning
his status as a licensed attorney?
ACC: Yes, sir.
MJ: And that that may perhaps preclude some of the things you
would like or prefer that he do here in court, do you understand that,
606
as well?
ACC: Sir, my attorney and I, we had already discussed what I
wanted him or I wanted us to prepare for. Now, I understand that he
is the attorney, that he does make certain tactical decisions. But,
sir, this is my career, this is my life, and this is my constitutional
right that I'm choosing to exercise to seek civilian counsel.
MJ: If that request is denied, these proceedings will continue
and you will have several options remaining:
One is to proceed with Captain Callahan as your counsel.
The next would be to proceed with him as your legal advisor
and represent yourself.
And then finally your right to represent yourself solely
before this court-martial.
Have you discussed those choices or options with him should
your request for continuance to procure yet another defense counsel be
denied?
ACC: Sir, if I can have an opportunity now to discuss that with
Captain Callahan?
MJ: I'll give you that in a moment.
Let me just clarify for the record again you've requested
that I recuse myself because I have denied Defense requested
continuances to await the outcome of the IG complaints you have filed
going back to last year.
Is that the basis for your request of my recusal?
607
ACC: Sir, the most recent IG complaint because the recent IG
complaint named the GCM.
MJ: Very well. But basically I denied your continuance or your
counsel's request for additional continuance to await the outcome of
whatever IG process is pending, correct?
ACC: Well, sir, if I understand it correctly, what the IG
represented or informed me of this morning, that this entire leading--
excuse me--legal proceeding is not even currently under investigation
and it dates all the way back to last year when Lieutenant Commander
Marshall herself presented me with the charge sheet and I was
directed--it's so much that's involved, sir, that even the additional
documents and information that was provided to me that was brought
into question, to include the charge sheet itself, the original charge
sheet, the alteration of that charge sheet, that I requested that the
IG investigate that, but to be told that none of that or no one is
under investigation, but yet this whole proceeding is still being
allowed to continue.
MJ: Well, do you understand that the court-martial process is
separate and distinct from any Inspector General investigations?
ACC: Well, sir, one complaint that I have not filed was to have
the attorneys themselves investigated directly to JAG IG, and I was
told back in January to wait for the outcome of the initial complaints
that was put on hold.
MJ: Very well.
ACC: So I understand this is a very serious situation and the
608
appearance of collusion, information being withheld, complaints or
documents and so forth not being forwarded or provided, but and then
to have me convicted just to prove that those complaints are frivolous
that still denies me my constitutional right to due process.
MJ: Back to my question in terms of your basis to recuse me as
the military judge, again it relates to the continuance denial that I
issued earlier?
ACC: Sir, it's been a number of denials, even to request to have
certain--and I felt that they were valid motions dismissed and most
importantly one for the misrepresentation of counsel by Lieutenant
Robertson which questioned my right to a speedy trial and that was
basically the premise of the motion.
MJ: Okay. So the adverse ruling concerning the speedy trial
motion and the denial of a continuance, those are the two grounds?
ACC: I mean, sir, I would have to have an opportunity to pretty
much write everything down and reflect back to my IG complaint as far
as all the particulars to request this, sir.
MJ: Very well. And your request is to relieve Captain
Callahan, have a continuance to consult or at least to procure the
services of another civilian counsel; is that the nature of your
request?
ACC: Yes, sir.
MJ: Do you have any particular civilian counsel in mind?
ACC: No, sir.
MJ: How much time do you believe you'd need to make such
609
consultations?
ACC: Well, considering this is over a holiday weekend, probably
at least about a week.
MJ: And then do you believe that civilian counsel could pick up
these proceedings and continue with the trial immediately or----
ACC: No, sir.
MJ: ----would there be additional need for a continuance?
ACC: I would need additional time for a continuance, sir.
MJ: How much time do you think that would require?
ACC: Considering the nature of all the evidence, to examine
that, the attorney's schedule, I'm looking at least beyond 30 days,
sir.
MJ: Very well. I'm inclined to give you at least some time
this morning to discuss those three choices I gave you earlier with
Captain Callahan, if you desire to do so, specifically continue--have
him continue as your military counsel----
ACC: Sir, I changed my mind.
MJ: ----him continue as your advisor----
ACC: I don't want to consult with Captain Callahan at this
point. I don't.
MJ: Very well. I'll give a few minutes then off the record to
make those determinations on your own.
Counsel, before we take a brief recess, are there matters
you'd like to bring to the Court's attention on the record?
610
Lieutenant Commander Messer?
TC: No, sir.
MJ: Captain Callahan?
IMC: No, Your Honor.
MJ: Very well. Court stands in recess. Please reassemble at
0900 hours. Carry on, please.
[The session recessed at 0846 hours, 23 May 2008.]
[The session was called to order at 0911 hours, 23 May 2008.]
MJ: The court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time; the
members, however, remain absent from the courtroom for this session.
Lieutenant Commander Penland, is there anything else you'd
like to address the Court concerning the issues we've discussed this
morning?
ACC: No, sir.
MJ: Very well. Given Appellate Exhibit XLII and the extensive
discussions conducted on the record here with Lieutenant Commander
Penland, the Court finds no substantial basis to question her
competence to make decisions concerning this courts-martial.
Lieutenant Commander Penland, what is your decision
concerning the representation of Captain Callahan?
ACC: Sir, I still stand firm to request to have Captain Callahan
relieved as defense counsel.
MJ: Very well. With regard to your request for recusal of the
611
military judge, do you still persist in that request?
ACC: Yes, sir.
MJ: Very well. That request is denied. The Court is certainly
satisfied that, based on the recusal request, that it can remain an
impartial arbiter of this court-martial and preside in accordance with
our rules of procedure and military evidence, and your request for
recusal of the military judge is denied.
Do you still persist in your request for an open-ended
continuance to procure additional counsel?
ACC: Yes, sir.
MJ: Very well. That request likewise is denied. The Court
finds that there's been adequate time for the Defense to prepare for
this trial, that Captain Callahan is, in fact, a sixth counsel that
has represented you in this matter, and that the basis for your
continuance is not reasonable.
The Court has already ruled on a request for continuance
concerning the Inspector General's investigations. And, therefore,
that request for continuance is denied.
Your request for counsel, that request for additional time
to procure counsel likewise is denied. The Court's found adequate
time for you to make counsel choices and to elect counsel. There
seems to be no indication that you are confused as to what your rights
of counsel are, that you've had adequate time to procure additional
counsel as desired preliminary to trial, and that in the midst of
trial your decision to relieve Captain Callahan does not serve as a
612
basis for additional continuance to procure yet another defense
counsel of your choice.
Lieutenant Commander Penland, that leaves you with those
three choices I discussed earlier this morning, and you've declined to
discuss them with Captain Callahan. Nonetheless, those three choices
remain. You may reconsider your decision to relieve him as your
defense counsel in this matter; you may relieve him as your defense
counsel, but nonetheless retain him as your legal advisor for the
balance of these proceedings; or you may represent yourself, as is
your constitutional right. I strongly discourage that final option.
What are your choices?
ACC: To have Captain Callahan relieved as my defense counsel.
MJ: Very well. And then do you wish to have him serve as your
legal advisor?
ACC: No, sir.
MJ: Then that leaves you as your own counsel. Do you----
ACC: Sir, I'm not qualified to represent myself.
MJ: Well, those are your choices. These proceedings will
continue, and I'll discuss with you the consequences of self-
representation, but the proceedings will not be disrupted and you will
have that opportunity to represent and defend yourself as you've
chosen to do so.
Do you understand that option?
ACC: Sir, but I'm not electing that option.
MJ: Well, you have not elected any options of those that are
613
remaining. But unfortunately that is the only option you have and
that is the default option in these proceedings.
Given the Court's ruling, do you desire a brief recess to
contemplate these choices?
ACC: No, sir.
MJ: Very well. Then we will proceed and you will--I will
excuse Captain Callahan from further participation as you have
requested.
Captain Callahan, you may stand down. You are relieved
from these proceedings at Lieutenant Commander Penland's request.
IMC: Good morning, Your Honor.
MJ: If you would, though, stand by in the back of the courtroom
should she reconsider her decision.
IMC: Yes, sir. Actually, sir, if I may, I believe it would be
more appropriate if I stood by outside the member's presence. Would
it be all right with the Court if I stand by outside on the
quarterdeck or such?
MJ: That would be fine, if there's a space that you can set
yourself up in, that would be fine.
IMC: Yes, Your Honor. Thank you.
[CAPT Callahan withdrew from the courtroom.]
MJ: Lieutenant Commander Penland, I'd like to have a further
discussion with you concerning your self-representation. We've
already discussed the fact that you have not studied law, correct?
ACC: Yes, sir.
614
MJ: Do you have any--well, let's talk about your education.
What has been your formal education?
ACC: Sir, I have a masters--excuse me--a bachelors of science in
marketing and a masters of science in management.
MJ: Where did you receive those degrees?
ACC: Hawaii Pacific University and Tri-State University.
MJ: And approximately when?
ACC: I graduated with my masters of science in management in
1996.
MJ: Why don't you move the microphone a little closer to you.
[The accused did as directed.]
MJ: Thank you.
You obviously understand and comprehend English. Is that
your primary language?
ACC: Yes, sir.
MJ: Have you ever represented yourself or anyone else at a
criminal proceeding?
ACC: No, sir.
MJ: Have you ever attended a court-martial besides this one?
ACC: Yes, sir.
MJ: Have you ever attended captain's mast or non judicial
punishment?
ACC: Yes, sir.
MJ: Have you ever served as an investigating officer for
criminal matters?
615
ACC: Yes, sir.
MJ: Have you ever served as a witness at a court-martial or non
judicial punishment proceeding?
ACC: NJP, sir, not court-martial.
MJ: Have you ever participated in administrative separation
board proceedings?
ACC: Yes, sir.
MJ: Do you understand the differences in those proceedings
compared to this court-martial?
ACC: Yes, sir. It's been a while.
MJ: Do you understand the nature of the charges that have been
brought against you?
ACC: Yes, sir.
MJ: Are you familiar with the military rules of evidence and
procedure?
ACC: Not to the point to where I'm prepared to represent myself,
sir.
MJ: Do you have a copy of the Manual for Court-Martial
available?
ACC: No, sir, I don't.
MJ: I'll direct the Government to provide you one.
Have you ever reviewed or had an occasion to read the
Manual for Courts-Martial in----
ACC: Yes, sir.
616
MJ: ----any of your--you have?
ACC: Yes, sir. Not to the point to where I can represent
myself, sir.
MJ: What was the purpose of reviewing the Manual for Courts-
Martial? Was it as--well, why don't you just----
ACC: General reference, sir.
MJ: With regard to serving as investigating officer, have you
ever had need to reference it?
ACC: Yes, that along with the JAGMAN.
MJ: Are you familiar with our rules for courts-martial?
ACC: No, sir.
MJ: Those likewise are contained in the Manual for Courts-
Martial. Do you understand that those will be rules that govern how
the case is tried?
ACC: Yes, sir. But once again, I'm not familiar to--with it to
the extent to represent myself.
MJ: You seem to understand that you'd be better off with a
trained lawyer that would be familiar with these rules of procedure
and evidence; is that correct?
ACC: Yes, sir.
MJ: And do you understand that should you end up representing
yourself at this court-martial, that there are limitations on what you
can do in terms of offering evidence to the court?
ACC: No, sir, I'm not familiar with that.
617
MJ: Do you understand that a lawyer has experience and training
in law and trial procedures to best advocate your position at this
trial?
ACC: Yes, sir.
MJ: Do you realize that in representing yourself, you would
still be held to these same rules of procedure and evidence?
ACC: Yes, sir. Once again, I'm not prepared to represent
myself.
MJ: Do you understand that if you are, in fact, representing
yourself, that as a matter on appeal you cannot complain about
deficient representation of yourself?
ACC: Repeat that, sir.
MJ: Certainly. Do you understand that if you do, in fact,
represent yourself at this proceeding, you will not later be allowed
to complain on appeal that your own representation was deficient?
ACC: But, sir, I'm not prepared to represent myself.
MJ: Do you understand, though, that you may not complain on
appeal that your representation was deficient if you are representing
yourself at these proceedings?
ACC: I do understand the statement, but, again, sir, I'm not
prepared to represent myself.
MJ: Do you realize the maximum penalty in this case that could
be adjudged, if you're found guilty of all the offenses, could include
dismissal from the Naval Service and confinement for up to 16 years?
ACC: Yes, sir.
618
MJ: Do you understand that without the assistance of counsel
your case would be less effectively presented?
ACC: Yes, sir.
MJ: As I've indicated to you, I've discouraged you from
representing yourself and to retain the services of your selected
counsel. Do you still wish to persist in relieving Captain Callahan
as your defense counsel?
ACC: Yes, sir, I do. But I am not prepared to represent myself.
MJ: Has anyone forced or threatened you to relieve Captain
Callahan?
ACC: No, sir.
MJ: Is that a freely made decision on your part?
ACC: Yes, sir.
MJ: Do you wish to have him serve as your assistant at counsel
table to provide you guidance, as necessary, during the proceedings?
ACC: No, sir.
MJ: I'd like to discuss with you the remainder of the
proceedings so that you understand their legal complexity. First of
all, the Government has not completed its case on the merits, so there
will be additional evidence I anticipate the Government will offer
against you. Do you understand that?
ACC: Yes, sir. But my understanding is if I'm not prepared to
represent myself and if I don't have defense counsel representation,
how can I properly be defended?
MJ: That is a good question and I would have hoped you had
619
discussed that further with Captain Callahan since I had given you
adequate time to do so and you've refused.
Do you understand, though, with regard to the remainder of
the proceedings, that the Government will intend and I expect offer
evidence against you?
ACC: Sir, I feel that the Court has not allowed me adequate time
to even seek outside civilian counsel. I was not informed yesterday
that I needed to use that time to seek civilian counsel, because at
that point Captain Callahan had not been relieved by the Court.
MJ: Commander, apparently you have had six counsel to this
point. These charges were preferred on 5 June 2007 and referred for
courts-martial 6 November 2007. At the initial attempted arraignment
I gave you 30 additional days to procure counsel of your choice. I'm
not sure giving you additional time is going to change that status
since you apparently have found bases to challenge six counsel who
have been assigned to represent to you to this point. I don't feel
additional time is in the interest of justice to allow you to find yet
another counsel to find further dissatisfaction with.
With regard to the remainder of the proceedings, the
Government will introduce evidence on the merits of its case and you
will be here for that evidence. You have essentially elected to
defend yourself by firing all your counsel and by continuing to
attempt to delay and obstruct these proceedings. The proceedings will
go forward. They will go forward today. There will be no more
further continuances. Do you understand?
620
ACC: No, sir, I don't understand.
MJ: You don't understand the statement, or you don't want to
understand the statement?
ACC: I don't understand how can this proceeding continue to go
forward when back in November, November 9th to January, when I
requested that my command provide me new defense counsel, that it took
my command two and a half months to detail another attorney, so now
I'm not even being allowed one week continuance to find civilian
counsel.
MJ: You've had the opportunity to hire civilian counsel since
you fired your last one. You have not availed yourself of that
opportunity, apparently for whatever reasons are personal to you.
With regard to the remainder of the proceedings, the
Government will introduce evidence on the merits on the case. As a
defendant, you have the right to challenge that evidence in any way
you desire through cross-examination or through objection.
You also then will be given an opportunity, as the accused,
to present evidence on your own behalf in defense of the merits of the
case. I understand that your counsel has summoned witnesses from all
over the world to testify on your behalf and hopefully they will be
permitted to do so at some point this week.
The Government will then be given an opportunity to rebut
any evidence that's presented by the Defense, again subject to the
same rules of criminal procedure and military rules of evidence that I
621
outlined earlier. The Defense will then be given an additional
opportunity to present evidence to rebut the Government's case.
Once the evidence has been exhausted, then the Court will
meet with the parties to discuss the instructions that will be
provided to the members. Those instructions are highly detailed,
technical in nature, and require strong legal basis in order to
understand, comprehend and advocate for those instructions. After
those instructions are confirmed by the Court, then there will be
argument by counsel. Once the counsel have argued, the members will
deliberate on the verdict of this case.
Do you understand that that is essentially the proceedings
that remain to this point?
ACC: [No response.]
MJ: Did you hear my question, Commander?
ACC: Yes, sir, I did.
MJ: Do you have a response to it?
ACC: No, sir, I don't.
MJ: You do not wish to respond to my question?
ACC: Sir, like I said, I'm not a qualified attorney and if the
Court insists on this proceeding going forward, so be it.
MJ: Very well. The proceeding will go forward.
A couple of other matters I would like to note. First of
all, we discussed quite a while ago Rule for Courts-Martial 804.
Do you recall the discussion of that rule, Commander?
ACC: No, sir, I'm not familiar with that rule.
622
MJ: In more simple terms, it is called the trial in absentia
rule. I do want to reconfirm with you that rule. That these
proceedings have been brought to order, this court has been assembled.
Witnesses have been brought from all over the world. If you decide to
voluntarily absent yourself from these proceedings without authority,
then the court-martial will proceed in your absence. The members will
determine a verdict after the evidence has been received and you will
have deemed to have waived your right to be present.
Do you understand that?
ACC: No, sir, I don't.
MJ: Let me break it down for you. The court-martial has been
assembled. Do you understand that?
ACC: Yes.
MJ: The court-martial will proceed as I have directed. Do you
understand that?
ACC: Sir, I think what I'm confused about here is if this court
goes forward, then if I am still defending myself, that because I am
forced by the Court to go forward with doing so, that I would have no
grounds or no merit for an appeal issue. Is that correct?
MJ: Well, right now I'm focusing on the trial in absentia rule,
but we can revisit that question later. Again these are matters I
would have hoped you would have discussed with all of your six defense
counsel in terms of what are the appellate options and your rights,
and perhaps we can get into some limited discussion of that in a
moment.
623
Back to the trial in absentia rule: The proceedings have
been brought to order and will continue. Do you understand?
ACC: Sir, could I have the Manual for Court-Martial or some
other guide so I can at least read this to comprehend what's going on
here?
MJ: Again, we'll provide you one in a moment. I don't think
you need to read the rule as I'm explaining it to you since I've
broken it down I think in laymen's terms. Do you understand that
these proceedings are in session?
ACC: Yes, sir.
MJ: And that it is my intention to continue the proceedings.
Understood?
ACC: Yes, sir.
MJ: That by rule and by constitutional right you have a right
to be here and represent yourself; do you understand that? You have a
right to be present at your trial.
ACC: But, sir, I'm not choosing to defend myself.
MJ: Okay. Let me break it down more simply. You have a right
to be present at your trial; do you understand that?
ACC: Yes, sir.
MJ: That if you should elect not to be present at your trial,
that is one of your choices. However, if your absence from the trial
is without authority, in other words, you are not properly excused
from this trial, then you will have waived your right to be present
and the court can continue in your absence. Do you understand that?
624
ACC: Sir, can I have the Manual for Court-Martial so I can
review additional rights of the accused, please.
MJ: You may, and I'll give you a brief recess in a moment to do
that. But will you please respond to my questions.
Do you understand that you have the right to be here; if
you do not elect to be here and your absence is without authority, in
other words, no one gives you authority to be absent, the court can
continue in your absence; do you understand that?
ACC: Sir, could I answer that question after I review the Manual
for Court-Martial?
MJ: I don't believe you need the Manual for Courts-Martial to
aid you in answering that question. I’m giving you a simple statement
of law that requires a yes or no answer.
Do you understand you have the right to be here and if you
elect not to be here, the court will continue in your absence?
ACC: Yes, sir.
MJ: Thank you. You have a master's degree. I think you
understand my questions. If not, let me know and I'll be happy to
repeat them for you in perhaps more simple terms.
That if you are absent, the court will continue in your
absence and the members will determine a verdict in this case. Do you
understand that?
ACC: Yes, sir.
MJ: Again I don't encourage you to be absent from your court-
martial, but that is one of your constitutional rights if you elect
625
not to be here. And so I want to make sure you're fully aware of that
and the consequences. Understood?
ACC: Yes, sir.
MJ: Very well. I will note for the record with regard to the
Court's determination, the Court finds that there have been--there
have not been adequate grounds with regard to Lieutenant Commander
Penland's decision to relieve her defense counsel. She has not
demonstrated to the Court deficient representation in any aspect.
To the contrary, the Court finds the record amply supports
the conclusion that Captain Callahan has been effective in
representing Lieutenant Commander Penland. Captain Callahan filed
numerous pretrial motions with the Court. They were articulate, some
of which were granted. Captain Callahan filed numerous requests of
the Court for continuance which were granted in part. Captain
Callahan fully participated in the voir dire process, exercising
peremptory challenge on behalf of the accused. During the
prosecution's case-in-chief Captain Callahan conducted extensive
cross-examination of the Government witnesses, lodged appropriate and
timely objections, numerous objections which were sustained to the
benefit of the accused.
The Court finds, therefore, no basis for deficient
representation on behalf of Captain Callahan.
The Court notes for guidance, unfortunately or otherwise,
there is very limited military case precedent concerning this
situation. The Court looked outside military precedent, discovered a
626
California Court of Appeals case, People vs. Willie Weston, Jr.,
decided 30 June 1970, reported at 9 California Appellate Third 330
(1970), as guidance in aid of its decision making in the request for
counsel relief, as well for continuance to procure substitute counsel.
Are there other matters we need to address on the record
before we take a brief recess to ensure Commander Penland has a Manual
for Courts-Martial?
TC: None from the Government, sir.
MJ: Commander Penland, anything else that we need to discuss on
the record before we take that recess?
ACC: No, sir.
MJ: Very well. Court stands in recess. Please reassemble at
quarter to the hour. Carry on, please.
[The session recessed at 0933 hours, 23 May 2008.]
[The session was called to order at 0950 hours, 23 May 2008.]
MJ: This 39(a) session is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, except for
Captain Callahan who was excused by Lieutenant Commander Penland as
her counsel.
The Court will note for the record that its decision making
at the last session is typically viewed, at least in California, as a
Marsden motion, M-A-R-S-D-E-N, apparently certain precedent here in
California concerning the request to relieve and replace counsel in
the midst of trial.
627
The Court will also issue further findings of fact and
conclusions of law, as necessary, pertaining to the Defense's request
to recuse the military judge and the Defense's request to continue
these proceedings to permit the procurement of an unspecified,
unidentified civilian counsel.
Lieutenant Commander Penland, have you had an opportunity
to get a copy of the Manual for Courts-Martial?
ACC: Yes, sir, I have.
MJ: Very good. Now, you've told me numerous times this morning
that you are unprepared and ill equipped to represent yourself. I'll
ask you one last time, do you want to reconsider your decision to
relieve Captain Callahan? He is standing by in this courtroom--in
this courthouse to assist you if you decide to have him return to your
table. Do you wish to reconsider your decision concerning Captain
Callahan?
ACC: Sir, I just received the Manual for Court-Martial and
there's a particular section in here that I would like an opportunity
to review before I answer that question.
MJ: Well, unfortunately there's no more time for you to review
that section. You have had a recess at this point. The members have
been standing by since 0830 this morning. We have witnesses flown
from Bahrain, Thailand and elsewhere throughout the globe to testify
on your behalf. It is not my intention to continue these proceedings
any further. Do you wish to reconsider your decision concerning
Captain Callahan?
628
ACC: Yes, sir, because there is a particular section that I just
discovered that I need time to review it and consult with Captain
Callahan because I--to defend myself and also a particular--excuse
me--a potential witness. So there's no way for me to defend myself
and also be a witness.
MJ: That is a complication.
ACC: Yes, it is, sir.
MJ: It is certainly very difficult to do. Going back to the
rules of procedure in evidence, again, you would be certainly less
effectively represented if you're both your own advocate and you're a
defendant.
ACC: Yes, sir.
MJ: You've come to that realization I hope?
ACC: Yes, sir.
MJ: Very well. I'll give you 20 minutes. If you would take
that time, use it wisely to discuss those matters, if you wish, with
Captain Callahan to determine what role you would prefer him to serve
on your behalf. Court stands in recess. Please reassemble at 10
minutes after the hour. Court's in recess.
[The session recessed at 0953 hours, 23 May 2008.]
[The session was called to order at 1014 hours, 23 May 2008.]
MJ: This 39(a) session is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
Captain Callahan.
629
Lieutenant Commander Penland, have you reconsidered your
decision to relieve Captain Callahan?
ACC: Yes, sir, I have.
MJ: And what is your decision at this point with regard to his
role in representing you?
ACC: That he will be representing me as defense counsel.
MJ: Very good. Captain Callahan, are you prepared to proceed
with the remainder of these trial proceedings.
IMC: Yes, sir. I believe the Government's next witness is a
Mr. Duffy. If I could have about 10 minutes with him before we go on.
With having got thrown off due to some of this other stuff that was
going on this morning, I think if I have about 10 minutes with him I
can keep from having to call one of the defense witnesses that's
coming in to testify to a minor technical issue. I think Mr. Duffy
should be able to do it.
MJ: Very well.
IMC: In the end, I think it will save a little time.
MJ: I'm all for saving time if that's appropriate. But let's
plan ahead, as well.
Lieutenant Commander Messer, is Mr. Duffy your last
expected witness on the merits?
TC: No, sir. I'll be recalling Chief Lewis-Wiggan for a very
brief--I'm just going to introduce two more exhibits, sir. They've
been marked as Prosecution Exhibits 21 and 22 for identification. I
did not admit those on my direct exam of her initially.
630
MJ: Very well. If you would outline, if necessary, any
additional testimony you're going to procure from her and let Captain
Callahan know so he can also interview her, as necessary.
TC: Yes, sir.
MJ: After that, the Government will rest?
TC: Yes, sir.
MJ: Captain Callahan, does the Defense have witnesses standing
by that you'd like to offer the Court?
IMC: Yes, sir. Our first witness I think will be Lieutenant JG
Wiggan.
MJ: Very well.
IMC: So I suspect he will be a fairly lengthy witness.
MJ: Very good. Okay. Well, if we can him standing by, as
well.
Court stands in recess unless there are other matters we
need to address on the record.
TC: None from the Government, sir.
IMC: No, Your Honor.
MJ: Very well. Court's in recess. Please reassemble at 1030
hours. Carry on, please.
[The Article 39(a) session recessed at 1017 hours, 23 May 2008.]
[END OF PAGE]
631
[The court-martial was called to order at 1032 hours, 23 May 2008.]
MJ: Bailiff, please ask the members to join our court.
TC: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the overnight recess are again present before the Court at this time,
to include all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Members, my sincere apologies for the delay this morning.
There have been a number of issues that we've addressed outside your
presence yesterday afternoon and all morning that required extensive
court time, also some significant legal research. I hope we have
worked through those issues. I make no promises. But I do hope that
we will be able to better use your time as the proceedings continue.
Lieutenant Commander Messer, does the prosecution have any
additional evidence it would like to offer the members at this time?
TC: Yes, sir. At this time the Government would recall
Mr. Brian Duffy to the stand.
MJ: Very well. Bailiff, if you would please recall Mr. Duffy
on behalf of the court.
[The bailiff retrieved the witness.]
632
BRIAN DUFFY, civilian, was recalled as a witness for the prosecution,
was reminded of his oath, and testified as follows:
TC: Sir, request permission to approach.
MJ: Very well.
TC: I'm retrieving from the court reporter what's been
previously marked as Prosecution Exhibits 24 and 25 for
identification. I'm showing Prosecution Exhibits 24 and 25 for ID to
the defense counsel [showing PE 24 and 25 for ID to Defense].
And I'm handing the two exhibits to the witness [handing
PE 24 and 25 for ID to the witness].
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Mr. Duffy, if I could direct your attention to Prosecution
Exhibit 24 first. What is that document?
A. [Reviewing PE 24 for ID.] This document is a response to a
subpoena from Sprint for the cell phone records, the personal cell
phone records of Syneeda Penland.
Q. And what phone number is that for--are these records for?
A. That's for (757) 822-3579.
Q. And what are the time--what's the time period that these
records cover?
A. This one is 1 through 30 September.
Q. Is there any other dates covered by these records?
A. This--okay. That's on the front page. Let me see. Yes.
And then the back portion is October 1st through October 31st. So in
633
total it's from 1 September through 31 October for the same number I
said previously.
Q. And you received these records from Sprint in response to
your subpoena?
A. Yes.
Q. And are these records a fair and accurate depiction of what
was received from Sprint?
A. Yes, these are definitely fair and accurate.
Q. And could you please describe for the members what is on
Page 1 of this document?
A. The first page is a certification from Sprint's subpoena
compliance section where they state under penalty of perjury that what
they're stating here is true and correct, and then they sign that in
front of a notary.
Q. I'd now like to direct your attention to Prosecution
Exhibit 25 for identification. Do you recognize that or what is that
I should say?
A. [Reviewing PE 25 for ID.] This is another response to a
subpoena. This is also for cell phone records of Syneeda Penland for
the period January 1st through January 31st, 2007 for the phone number
(619) 862-1134.
Q. What--if you could look closer there. What date do the
records begin?
A. January the 1st and actually there's more in the back
here--well, no, that's the billing date.
634
Q. If you could look at Page 2 and tell me when those dates
start.
A. Okay. Yeah. The bill period is January 1st through the
31st, but there is no activity until the 9th of January.
Q. So these records are from what date?
A. From the 9th of January to the 31st of January 2007.
Q. And you received these records in response to a subpoena
issued by your office?
A. Yes, that's correct.
Q. Are these records a fair and accurate depiction of the
records that were received from Sprint in response to that subpoena?
A. Yes, they are.
Q. And could you please explain to the court what is on Page 1
of Prosecution Exhibit 25 for identification.
A. Well, there's another certification on top of this one by
the person who drew the records from Sprint, certifying that they're
true and accurate under penalty of perjury and then signed in front of
a notary public.
TC: Thank you.
Sir, at this time I'd offer Prosecution Exhibits for
identification 24 and 25 into evidence and I'd ask that the words "for
identification" be deleted.
MJ: Objection from the Defense?
IMC: No. Thank you, Your Honor.
635
MJ: There being no objection, Prosecution Exhibits 24 and 25
for identification are now admitted into evidence. The words "for
identification" will be stricken by our court reporter, and you may
publish those exhibits at a time you desire.
Further questions for this witness?
TC: Yes, sir. May I approach the witness?
MJ: You may.
TC: I'm retrieving Prosecution Exhibits 24 and 25 from the
witness. I request permission to publish the exhibits to the members,
sir.
MJ: Very well. If we can confirm that our monitors are working
for the members.
TC: That's an affirmative, sir.
MJ: Affirmative from our members. Very good.
[PE 24 was electronically published to the members and witness.]
Q. Mr. Duffy, I'm going to show you what has been--which is
labeled as Page 34--Page 48, we'll bring that up. If you could look
on the video monitor there, sir, and tell me if you can see that
adequately. It's kind of fuzzy. And I'd like to direct your
attention to line item 379. Could you please explain to the court
what the significance of that line item is.
A. Line number 379 where is says 9/25 after it, are you
referring to that?
Q. Yes. Yes. Do you recall that phone number?
A. I'm having a little difficulty reading that phone number.
636
Q. Let me go ahead and hand you back----
A. (619) 556----
TC: Here. I'm going to hand you back the original.
I'm handing back Prosecution Exhibit 24 to the witness
[handing PE 24 to the witness].
MJ: Very well.
WIT: Yes. I can read it now.
Q. Do you have a better idea of that now?
A. Right. 61----
Q. Can you please tell the significance of that number.
A. That number, I believe, is the number to the MOBILE BAY.
Q. Okay. I'm now just going to scroll over it, kind of
maximize it here on the screen. You should be able to--well, try to
back up here so you can see everything. Can you tell from that--from
this the time of that phone call, the number of minutes.
A. Could you include the line number again a little more to
the left and then in the clarity just a bit. I am a bit older than
you.
Q. Please refer to the exhibit you have in front of you there.
A. Okay. Could you repeat the question, please.
Q. Just the time of that phone call, the duration.
A. Thirty-four minutes long.
Q. So according to those records on that date there was--and
your knowledge of the number, there was a 34-minute phone call to
USS MOBILE BAY?
637
A. That is correct.
Q. From this cell phone?
A. From that cell phone.
Q. And the owner of the cell phone is?
A. Syneeda Penland.
TC: Thank you.
Now, at this time, Your Honor, I'd ask that the witness be
allowed to step down from the witness stand, approach the easel.
[The witness stepped down from the witness stand.]
MJ: For what purpose?
TC: I'd like the witness--the witness was instrumental in
investigating the phone records and going through and identifying
certain phone numbers. Just as for clarification for the members I'd
like him to list the key phone numbers that he investigated,
specifically the numbers to the USS PRINCETON, USS MOBILE BAY and the
personal cell phone numbers of Lieutenant JG Wiggan and I'd like that
in evidence.
MJ: Captain Callahan?
IMC: I'd object to that. The numbers for these things have
already been admitted into evidence. They've already been testified
by various different Government witnesses as to what these numbers
are. I don't see any need for additional time spent in this court
writing down those on an easel board, making it some sort of exhibit
and then distributing it to the members.
MJ: So your objection is cumulative?
638
IMC: Yes, sir.
MJ: Lieutenant Commander Messer?
TC: Well, sir, certainly there's some question as to--there was
a question from one of the members earlier on what the number to the
USS MOBILE BAY quarterdeck was and the witness could not answer that
question, if I recall correctly; they didn't have knowledge of it.
And I'm not--I'm just making sure the Government is covering all bases
here and getting all these numbers into evidence. I know that the
PRINCETON has multiple numbers. The witness would be able to identify
the three key numbers to the USS PRINCETON that he identified in the
phone records. The MOBILE BAY has three phone numbers, and then
there's three different cell phone numbers for Lieutenant JG Wiggan,
and I want to make sure that the Government gets those in evidence.
I'm not sure that those have been brought out.
MJ: Very well. Why don't you just ask the witness, and the
members, if they desire, can take notes of those numbers as they
desire.
TC: Yes, sir.
If you could please retake your seat, Mr. Duffy.
MJ: Please be seated, Mr. Duffy.
[The witness resumed the witness stand.]
Q. Mr. Duffy, in the course of your investigation, did you
investigate certain telephone numbers?
A. I did.
639
Q. Do you recall the different telephone numbers that were
linked to the USS PRINCETON?
A. Generally, yes.
Q. What were those telephone numbers?
A. (619) 556-3904, 05, and 06, with the predominant amount of
the hits coming to 05.
Q. So just to clarify, when you say 04, 05, 06, those are the
last two numbers of those----
A. Right.
Q. ----cell phone numbers?
A. I would mean 3904, 3905, 3906, yes.
Q. And did you also investigate numbers dialed to the
USS MOBILE BAY?
A. I did.
Q. And based on your--based on the results of your
investigation, what numbers are attributed to the USS MOBILE BAY?
A. (619) 556-4509, 4510 and 4512, I believe.
Q. Thank you. And then, finally, did you also investigate
cell phone numbers that could be attributed to Lieutenant JG Wiggan's
personal cell phone?
A. Yes, I did.
Q. And do you recall those numbers?
A. I do in part from memory, but I may need to refresh my
recollection.
TC: May I approach, Your Honor.
640
MJ: You may.
Q. Would it help you if I----
A. Well, I can start.
Q. Okay. Do you--first of all, how many different numbers did
you find attributable to Lieutenant JG Wiggan's personal cell phone?
A. I had three cell phone numbers for Lieutenant JG Wiggans.
Q. And what were those numbers?
A. (951) 445-3580.
Q. Okay. And what were the others?
A. (757) 319-7935 and those two numbers the majority of the
hits were on. The final one was (951) 313-4719. But I'd like to take
a look at my notes.
TC: May I approach?
MJ: You may.
TC: I'm showing the accused----
MJ: The witness.
TC: Excuse me. --the witness his notes [handing notes to the
witness].
MJ: Very well.
TC: I'm retrieving the notes. So I'd just want this marked as
the next appellate exhibit in order, sir.
MJ: If you would show it to defense counsel, please.
TC: [Showing Mr. Duffy's notes to Defense.] I'm handing the
notes to the court reporter to have them labeled as the next appellate
exhibit in order.
641
[The court reporter marked the notes as AE XLIII.]
Q. Mr. Duffy, are you satisfied that those numbers that you
just recitated [sic] are the accurate phone numbers?
A. Yes, I am.
Q. Now, I'd just briefly like to talk to you about Prosecution
Exhibits 24, 25 and what has been previously admitted, Prosecution
Exhibit 18. Those--what are--do you know what those three exhibits
are? I know you know----
A. Well, 24 and 25 I just saw, but 18 I don't--I don't know.
TC: Sir, request permission to approach?
MJ: Very well.
TC: I'm retrieving Prosecution Exhibit 18 from the court
reporter. I'm handing Prosecution Exhibit 18--it's been entered into
evidence--to the court reporter [sic]. I'm also handing the--I'm
handing that to the witness [handing PE 18 to the witness]. I'm also
handing to the witness Prosecution Exhibits 24 and 25 [handing PE 24
and 25 to the witness].
Q. Mr. Duffy, I just want to talk to you briefly about what
you were able to find out when investigating those records for the
numbers that we just spoke about. Let's first talk about Prosecution
Exhibit 18 that's already been--or that was entered into evidence
yesterday. In reviewing that document, did you find numbers dialed to
any of the numbers we talked about?
A. Yes. I got hits for all three of the periods in question.
642
Q. Okay. What period--just to remind the members, what period
does the cell phone records for--from Prosecution Exhibit 18 cover?
A. From the 1st of February to the 28th of February 2007.
Q. And during that period were there any calls made to--from
that phone to USS PRINCETON on those numbers you mentioned?
A. Yes, there were.
Q. How many?
A. There were 93 phone calls made.
Q. And were there any phone calls made to the personal cell
phones of Lieutenant JG Wiggan on those days?
A. I didn't get any hits during that period of time.
Q. Okay. And were there any calls made to the USS MOBILE BAY?
A. I think there were four. I'm not certain.
Q. How certain are you?
A. I'm fairly certain.
Q Okay. Let's now--I'd like to direct your attention to
Prosecution Exhibit 24 and could you please just tell the--remind the
members again what period does that cover?
A. This is from the period of 1 September through 31 October
of 2006.
Q. And during that time frame, how many calls did you find
that were made in to USS PRINCETON?
A. Fifty-four.
643
Q. And during that period how many calls were made to the
personal cell phones of Lieutenant JG Wiggan?
A. Two hundred and sixty-six, with all of those being on two
of the three cell phone numbers of Lieutenant JG Wiggans.
Q. And how many calls during that period from that cell phone
were made to the USS MOBILE BAY?
A. I think another four.
Q. Now, I'd like to direct your attention to Prosecution
Exhibit 25. Now, just once again what period does 25--Prosecution
Exhibit 25 cover?
A. From 1 January--well, that's the--again, that's the billing
period. From the 9th of January through the 31st of January of 2007.
Q. And during that period how many phone calls were made from
this cell phone to USS PRINCETON?
A. Sixty-six.
Q. And how many calls were made to Lieutenant JG Wiggan
through these different cell phone numbers?
A. Four.
Q. And were there any calls made to USS MOBILE BAY quarterdeck
during that period?
A. I think there was none during that period.
TC: Okay. Thank you.
Request permission to approach.
MJ: Very well.
644
TC: I'm retrieving Prosecution Exhibits 18, 24 and 25 from the
witness and I'm returning them to the court reporter.
Q. Now, Mr. Duffy, in your duties as paralegal, did you have
the opportunity----
TC: Actually, sir, request permission to approach again.
MJ: Very well.
TC: I'm retrieving Prosecution Exhibit 11 from the court
reporter. I'm handing what's been entered into evidence as
Prosecution Exhibit 11 to the witness [handing PE 11 to the witness].
Q. Mr. Duffy, do you recognize that prosecution exhibit?
A. [Reviewing PE 11.] Yes, I do.
Q. How is it that you recognize it?
A. I received this from yourself and it was----
Q. And why did you--why was that provided to you by me?
A. It was provided to me for purposes of opening the document
and then clicking on File and Properties and seeing who the author of
the document was.
Q. And did you do as I requested?
A. I did.
Q. And what did you discover?
A. When I clicked on File, then Properties, the author said
Syneeda Penland.
TC: Request permission to approach, Your Honor.
MJ: Very well.
645
TC: I'm retrieving Prosecution Exhibit 11 from the witness and
returning it to the court reporter. Retrieving Prosecution Exhibit 12
for identification from the court reporter. I'm showing Prosecution
Exhibit 12 for identification to the defense counsel [showing PE 12
for ID to Defense].
I'm handing Prosecution Exhibit 12 for identification to
the witness [handing PE 12 for ID to the witness].
Q. Do you recognize that document, Mr. Duffy?
A. [Reviewing PE 12 for ID.] Yes, I do.
Q. What is it?
A. That's the document that I just referred to, that letter,
and that's a screen shot of when I opened up File, then Properties,
and then it revealed Syneeda Penland as the author. I then took a
screen shot of the screen by holding down Control and selecting print
screen and then effectively copies it and then I pasted it and printed
it out.
Q. So is this exhibit an accurate depiction of what you saw on
your computer screen when you carried out that investigation into this
document?
A. Yes, it is.
TC: Sir, at this time I'd ask that Prosecution Exhibit 12 for
identification be entered into evidence and the words "for
identification" be deleted.
MJ: Objection from the Defense?
IMC: No, Your Honor.
646
MJ: There being no objection, Prosecution Exhibit 12 for
identification is now admitted into evidence. The words "for
identification" will be stricken by our court reporter, and you may
publish the exhibit at an appropriate time.
TC: Thank you, sir. Request permission to approach.
MJ: You may.
TC: I'm retrieving Prosecution Exhibit 12 from the witness and
I'm returning it to the court reporter.
Sir, I have no further questions for this witness.
MJ: Captain Callahan, questions for the witness?
IMC: Please, Your Honor.
MJ: By all means.
IMC: Thank you.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good morning, Mr. Duffy.
A. Good morning, sir.
Q. Mr. Duffy, isn't it true that with all the Microsoft
programs, if you go into the document when you were creating the
document, that you can put anybody down as the author that you want?
A. I discovered that you could change the author by conducting
an experiment on one of my own documents, yes.
Q. So I'm an old Miss. grad. The only famous person to come
from old Miss. is Eli Manning and John Grisham. So let's say I'm
writing something out and I want to pretend I'm Eli Manning. Could I
647
write out a document and say in the properties I'm Eli Manning, send
it out, and whoever received it then would pull it up and say, hey,
this document claims under properties, under author, to have been
written by Eli Manning?
A. You would have to go in, erase your name, type in Eli
Manning and then save it and it would say Eli Manning.
Q. Mr. Duffy, Prosecution Exhibit Number 25, which was the
cell phone record from Sprint.
A. Right. From what time period?
Q. The January time period.
A. Okay.
Q. Is that the--would be ones on Page 2, begins with the 9th
of January.
A. All right.
Q. Is that the complete and entire list of the cell phone
records you received as a result of that subpoena?
A. I think we left out ones that just didn't have anything on
them.
Q. What do you mean by "ones that didn't have anything on
them"?
A. In other words, like they send along miscellaneous
information, instructions on how if you want to get back to them about
anything, if--their contact information, that type of thing and I
figured that was extraneous and we kept just the phone records.
648
Q. But they include the entire phone records that were sent?
A. Yes.
Q. And did you actually receive and open that from Sprint or
did someone else?
A. I think someone else did and then it was passed to me.
Q. And you're confident, though, that it's the complete and
entire phone records that Sprint responded as from the time period
requested?
A. Yes.
Q. You testified that Lieutenant JG Wiggan had three different
phone numbers. How do you know those were his phone numbers?
A. I believe it came out during the investigation and the--and
also talking to, well, witnesses, talking to witnesses during the
investigation and that information was provided to me by way of the
Senior Trial Counsel, Lieutenant Commander Messer.
Q. So those were--you testified those were Lieutenant JG
Wiggan's phone numbers and you were told by Commander Messer that
those were Lieutenant JG's phone numbers?
A. I also saw an e-mail to that effect.
Q. Do you know how many phone numbers were investigated for
Commander Penland?
A. Her cell phones, there's three numbers, I believe.
Q. Were there any numbers other than cell phone numbers?
A. Yes. Yesterday we discussed the home phone number.
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Q. So a total of four phone numbers?
A. At least that, yes. Those are the ones that I recall.
IMC: Thank you, sir. No further questions, Your Honor.
MJ: Redirect?
TC: Briefly, sir.
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. Mr. Duffy, just to clarify, did you, when you received that
document, did you change the author of the document to Syneeda Penland
or was that the author when you received it?
A. I did not change the author.
Q. Do you have any knowledge of anyone else tampering with
that document to change the author from someone else, say John Grisham
or Eli Manning to Lieutenant Commander Penland?
A. No, sir.
TC: Thank you.
MJ: Captain Callahan, anything further?
IMC: No. Thank you, Your Honor.
MJ: Questions from our members? Negative response from all
panel members.
[The witness was reminded of his previous warning, temporarily excused
and withdrew from the courtroom.]
MJ: Further evidence from the prosecution on the merits of this
case?
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TC: Yes, sir. At this time the prosecution would recall Chief
Lewis-Wiggan to the stand.
MJ: Very well. Bailiff, if you would please recall the witness
on behalf of our court.
[The bailiff retrieved the witness.]
NAVY COUNSELOR CHIEF KIMBERLY LEWIS-WIGGAN, U.S. Navy, was recalled as
a witness for the prosecution, was reminded of her oath, and testified
as follows:
TC: Request permission to approach, Your Honor.
MJ: You may.
TC: I'm retrieving what has been marked as Prosecution Exhibits
21 and 22 for identification from the court reporter. I'm showing
defense counsel Prosecution Exhibits 21 and 22 for identification
[showing PE 21 and 22 for ID to Defense].
I'm handing Prosecution Exhibits 21 and 22 for
identification to the witness [handing PE 21 and 22 for ID to the
witness].
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Chief, if you could please direct your attention to the
exhibit that's labeled PE 21 for ID. Do you recognize that document?
A. [Reviewing PE 21 for ID.] Yes, sir, I do.
Q. How is it that you recognize that document?
A. This was forwarded to me.
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Q. What was--what is it?
A. It's an e-mail from Lieutenant Commander Penland to my--me
and my husband's home e-mail address and then he--well, to the ship
address and then he forwarded it to our home e-mail address.
Q. And is there an attachment to that e-mail?
A. Yes, it is, sir.
Q. Okay. I want you to take a minute to look it over. Does
that e-mail appear to be a fair and accurate depiction of the e-mail
that you received from your husband on the--I believe it was the 2nd
of December?
A. Yes, sir, it is.
Q. And once receiving this e-mail, did you print it out?
A. I did for Lieutenant Commander Doud. I didn't originally
print it out; I just read it.
Q. Does this document appear to be an accurate depiction of
what you forwarded to Commander Doud?
A. Yes, it is.
TC: Sir, at this time I'd ask that Prosecution Exhibit 21 for
identification be entered into evidence and the words "for
identification" be deleted.
MJ: Objection from the Defense?
IMC: No, Your Honor.
MJ: There being no objection, Prosecution Exhibit 21 for
identification is now admitted into evidence. The words "for
identification" will be stricken by our court reporter, and you may
652
publish the exhibit at an appropriate time.
TC: Thank you, sir.
I'd like to--I'm publishing Exhibit 21 to the members now.
MJ: Very well.
[PE 21 was electronically published to the members and witness.]
Q. Now, Chief, you stated--you testified earlier there was an
attachment to this e-mail?
A. Yes, sir.
Q. Did you also view the attachment?
A. Yes, sir, I did.
Q. I'd like to direct your attention to Prosecution Exhibit 22
for identification. What is that document?
A. [Reviewing PE 22 for ID.] The document was--it's--she was
saying she wanted to send a few words.
Q. Is that document the attachment that was attached to the
e-mail?
A. Yes, sir.
Q. Did you have an opportunity to review that document at the
time?
A. Yes, sir.
Q. Is this document--take a moment to look through Prosecution
Exhibit 22 for identification now. Is that document the same document
that you received as the attachment as an e-mail from your husband?
A. [Further reviewing PE 22 for ID.] Yes, sir.
653
Q. And it's a fair and accurate depiction of what you read at
that time?
A. Yes, sir.
TC: At this time, Your Honor, I'd ask that Prosecution Exhibit
22 for identification be entered into evidence and the words "for
identification" be deleted.
MJ: Objection from the Defense?
IMC: No, Your Honor.
MJ: There being no objection, Prosecution Exhibit 22 for
identification is received into evidence. The words "for
identification" will be stricken by the court reporter, and you may
publish the exhibit at an appropriate time.
TC: Thank you, sir.
Q. Chief, this is--approximately how many pages is the
document, Prosecution Exhibit 22?
A. It's quite lengthy. I don't really remember counting them
all.
Q. So it's a lengthy document. I just want to talk to you
about some key points. Is there anything in that document that puts
you on notice that the relationship between your husband and
Lieutenant Commander Penland may be more than just a friendship?
A. Yes, sir. There was some stuff in there.
Q. What things, in particular, could you please point out to
the members?
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A. There was a part about when she talked to Casey, her
cousin, in regards to them going to Atlanta for New Years to have a
new beginning in their relationship.
Q. And was your husband invited to go to Atlanta, too?
A. Yes, he was invited by her in this e-mail to go to Atlanta.
Q. And what put you on notice about that invitation?
A. It was--she had actually written it in the letter itself.
Q. That----
A. She said, "The invitation is still open. If there is
something you would like to do, no strings attached. I'm offering it
as a good gesture because you've never been there, not as a
celebration for a new beginning for us."
Q. By stating "no strings attached," what did you believe she
meant by that?
IMC: Objection. Speculation.
MJ: Lieutenant Commander Messer?
TC: Sir, this is the perception of the witness as to whether or
not she believed there was some infidelity in the relationship between
the husband and Lieutenant Commander Penland. She has the right to
give her impression of what she thought when she was reading the
e-mail.
IMC: Object to relevance then, sir. She's already testified she
thinks there's an affair going on.
MJ: Sustained as to speculation.
TC: Aye, sir.
655
MJ: You might want to rephrase your question, Lieutenant
Commander Messer.
TC: The exhibit's in evidence. The members will have a chance
to review it. I'll move on.
Q. Is there anything else in this lengthy note that caught
your interest?
A. There was also----
Q. How did--how did the author or Lieutenant Commander Penland
refer to your husband at the end of the document?
A. Let's see. It's so long, I have to find the----
Q. The last page of the document.
A. Yes. Okay. Oh, she--she says that they were--she says,
"Mark, we have been chosen to become soul mates. That is our purpose
or else our paths would never have crossed."
TC: Thank you. I have no further questions.
At this time, sir, I'm retrieving Prosecution Exhibit 22
from the witness.
MJ: Very well.
TC: Returning it to the court reporter. Actually, sir, I'm
retrieving both 22 and 21 and returning it to the court reporter.
MJ: Very well. If you'd also shut down the Elmo.
TC: Yes, sir.
MJ: Captain Callahan, questions for the witness?
IMC: Briefly, Your Honor.
MJ: Very well.
656
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good morning, Chief.
A. Good morning, sir.
Q. Chief, did you ever call Commander Penland early January,
first few days of January?
TC: Sir, I object. This is outside the scope of my direct
examination.
IMC: Request just the Court's leeway a little bit; otherwise we
can certainly treat this witness as on direct or we can recall this
witness later for the Defense case. But in the interest of time, I
think it's simply this one question. With the Court's indulgence----
MJ: Very well.
IMC: ----I think--answer it now.
MJ: Objection's overruled.
Q. Did you ever call Commander Penland in early January?
A. I'm not--I don't recall because it's been so long ago,
honestly. I know that my spouse had called from my house phone and
then that's how I ended up talking to her on the phone later on that
same day in January time frame.
Q. You talked to her that day, but you don't remember calling
her?
A. I didn't call her myself personally, no.
IMC: Thank you. No further questions, Your Honor.
TC: No follow up, sir.
657
MJ: Questions from our members? Negative response from all
panel members.
[The witness was reminded of her previous warning, temporarily
excused, and withdrew from the courtroom.]
MJ: Further evidence from the prosecution on the merits of this
case?
TC: Sir, at this time the Government would ask that all
exhibits that have been entered into evidence be published to the
members--all prosecution exhibits that have been entered into evidence
that have not been published to the members be published to the
members at this time.
MJ: Do you have duplicate copies of the extensive records
you've admitted into evidence so the members can review them?
TC: Sir, I have just the copy provided to the court reporter
and I'd ask that those go back with the members at the time of
deliberation.
MJ: Very well. So, in terms of publication, publish them for
deliberations?
TC: That's correct, sir.
MJ: Very well. We will do so when we close for deliberations.
Any further evidence from the prosecution on the merits of
this case?
TC: Nothing further, sir. The Government rests.
MJ: Very well. Members, this would be an appropriate time to
take a brief recess. If you would please cover your notes. Subject
658
to my standard instructions to not discuss this case in any manner,
the members may depart on recess. If you would please reassemble at
1130 hours.
Members, I plan on taking a later lunch this afternoon. So
if you want to take some time to grab a snack from one of the vending
machines here, feel free to do that. I anticipate the next witness,
if the Defense elects to present witnesses, may take a fairly lengthy
time, so I want to get that in before lunch.
Subject to my standard instructions, the members may depart
on a brief recess.
BAILIFF: All rise.
[All persons did as directed.]
MJ: Members, please reassemble at 1130 hours.
[The members withdrew from the courtroom.]
[The court-martial recessed at 1111 hours, 23 May 2008.]
[END OF PAGE]
659
[The Article 39(a) session was called to order at 1112 hours, 23 May
2008.]
MJ: Please be seated.
[All persons did as directed.]
MJ: This 39(a) session is called to order.
Let the record reflect the members have departed from the
courtroom.
The Court will note, at least with regard to this last
session of court, that Lieutenant Commander Penland frequently
throughout the proceedings consulted with Captain Callahan and
reviewed the exhibits with him.
I will also ask defense counsel at this time, do you
anticipate presenting evidence on the merits of this case?
IMC: Yes, Your Honor.
MJ: Very good. When we return, if you would please have that
evidence standing by and we will proceed as necessary.
Court stands in recess.
IMC: Sir?
MJ: Oh, Captain?
IMC: Actually, if I may, I would also like to address some 917
motions and then a motion to dismiss the conduct unbecoming an officer
on other grounds, as well, sir, before we present our case.
MJ: Very good. All right. If you would, please articulate
your motions under R.C.M. 917.
660
IMC: Yes, sir. Under the indecent acts there's been--one of the
requirements for indecent acts is it's done to gratify sexual desires.
There has simply been no evidence presented by the trial counsel that
in any way that would suggest that even if my client did send those
photographs of Lieutenant JG Wiggan to Chief Wiggan, if they were done
to gratify her sexual desires.
There's also been no proof that these acts were committed
with another. The testimony here in court was that she received an
e-mail. There was no action done at the same time by both people.
One of the requirements for indecent acts with another has been
somewhat addressed by the Court before.
I believe it is appropriate to rule on that at this time as
the Government's evidence has come out on this and there has been no
proof that these were acts committed together. As such, it would be
appropriate at this time to dismiss that charge and specification.
MJ: And that is the first specification under Charge IV?
IMC: Yes, Your Honor.
MJ: Government response?
TC: Sir, the Government has presented evidence that it was--the
indecent act was an e-mail sent from Lieutenant Commander Penland to
Chief Lewis-Wiggan. Those are the two actors required under the
element to be satisfied. There's no requirement under the law that
both parties be co-actors or that the receiving party be an accomplice
to the act. In this case, the Government's position is that Chief
Lewis-Wiggan was a victim. However, we still believe that the element
661
is satisfied.
With respect to the lust aspect of the element, the photo
itself is a picture of Lieutenant JG Wiggan with an erection. It's
sexual in nature and we believe that's sufficient to satisfy the
element of that crime.
In addition, the act itself, which was to--of sending the
e-mail--sending the e-mail through the--sending the pictures through -
mail, the act itself was--is under the Government's theory and we
believe we've raised evidence to this point was to try to influence
Lieutenant J--or Lieutenant--I should say Chief Lewis-Wiggan to
somehow divorce her husband or leave the relationship, and this was
based on sexual impropriety or sexual--you know, adultery, evidence of
that, and that we would say that would also go to the element and
satisfy that element of the crime.
MJ: Captain Callahan, anything further on this?
IMC: Yes, sir. Sir, they didn't specifically charge all that
additional stuff. The way it's charged is she has an indecent act by
distributing nude photographs. Simply, under the definition of
indecent, sending photographs of a woman's husband to her, when she
says "no pictures, no proof," is not indecent. The language, it's not
sexual impurity which is vulgar, obscene and repugnant to common
propriety and it doesn't tend to excite lust and deprave morals.
That's not the purpose of this. The purpose of this e-mail, according
to the Government's case and all the evidence they presented, was to
prove that an affair was going on.
662
It doesn't--there's simply no evidence whatsoever that the
act was indecent and, as such, it would be appropriate to dismiss it
at this time, sir.
TC: Briefly, sir?
MJ: Very well.
TC: Sir, the Government's burden is just to present some
evidence at this point. The Government has presented some evidence.
As to the weight of that evidence or whether it's enough to satisfy
the element beyond a reasonable doubt is a question of fact for the
members. I would ask that you not dismiss the specification at this
time and that it go to the members for their decision.
MJ: Well, with regard to the element of proof concerning lust
or sexual desires, whose sexual desires were, in fact, involved in
this particular offense? Were those the sexual desires of the accused
or co-actor----
TC: The Government's position----
MJ: ----or the recipient?
TC: The accused, sir.
MJ: That by sending these photographs to the recipient that
somehow the sexual desires or lust of the accused was implicated?
TC: Yes, sir. And that she wanted to have the victim, Chief
Lewis-Wiggan, divorce her husband so she could have her husband for
herself.
MJ: Very well. I think your position is clear.
Captain Callahan, anything further concerning this
663
particular 917 motion?
IMC: No, Your Honor.
MJ: Very well. You said you had also another 917 motion?
IMC: Yes, sir. In regards to Specification 1 of Charge III,
conduct unbecoming an officer. Or I'm sorry. I think I have the
wrong specification. Specification 2. There has been no evidence
that she would refuse to leave. The only testimony here in court from
the executive officer was that when he requested her to leave, that
she left. There's been no evidence that she was ordered to leave and
that somehow not leaving was wrongful.
MJ: Lieutenant Commander Messer?
TC: Well, sir, there's no requirement that the accused had to
be given an order to leave the ship and she refused the order. The
allegation here is that because using her rank she put herself on the
quarterdeck of the ship and refused to leave until she saw either the
CO or the XO, and that was wrongful in that way. That is what the
evidence the Government has presented and supports. We don't dispute
the fact that once her business with the XO was done she left the
ship. So it's not that the XO needed to order her to leave and she
refused, it was that she refused to leave until she spoke to either
the CO or the XO, disrupting the ship and the ship's schedule, and
that is the Government's position. We presented evidence as to that.
IMC: Sir, there was no evidence presented that she refused to
leave. He said when she--you know, he was not aware of her being told
to leave, and when he told her leave, she freely left the ship. So
664
there's--you can't have a refusal to leave without having been told to
leave and there's been no evidence to the court that she was, in fact,
told to leave.
MJ: Lieutenant Commander Messer, whose testimony are you
referring to, Lieutenant Commander Monsiger or Monsinger?
TC: Lieutenant Commander Moninger, sir.
MJ: Moninger. Okay.
TC: Who represented that he had believed she had been on the
ship earlier, but he wasn't sure. And that we also heard testimony
from Chief Lewis-Wiggan [sic] who also talked about how he had
visited--how she had come to the ship to visit him about her missing
jewelry. So we know that she had been to the ship on that day.
MJ: I'll review my notes concerning Lieutenant Commander
Moninger.
Anything else concerning the 917 motion pertaining to
Specification 2 of Charge III?
IMC: No, Your Honor.
MJ: Very well. Are there any other motions or requests for
relief from the Court at this time, Captain Callahan?
IMC: Yes, sir. Sir, at this time the Defense would request that
the military judge dismiss all three of the Article 133 violations and
would like to rely on--which I'll provide the Court--it's United
States v. Brown, can be found at 55 M.J. 375. I'll provide a copy of
that to counsel, as well. But, in essence, it's a Court of Appeals
from the Armed Forces decision dealing with implicating various
665
decisions the U.S. Supreme Court has ruled on conduct unbecoming an
officer and whether or not conduct unbecoming an officer, as a charge,
in constitutionally overbroad and unduly vague. And what the
appellate court requires is proof that an officer was on notice that
the conduct charge would be considered criminal conduct.
And in this instance first we have the fact that we have
phone calls made to the MOBILE BAY, calling somebody while they're at
work. There's certainly nothing that would show that that could be
considered criminal. Maybe it could be frowned upon, maybe they tell
you not to do it, but there's a difference between saying, no, don't
do this and being put on notice that your actions are actually
criminal.
Secondly, in regards to going over to speak to the
executive officer, even less so on this one. The evidence showed that
she felt she lost thousands of dollars worth of jewelry and that she
went to speak to the command about--to make a complaint to that
command about the loss of thousands of dollars worth of jewelry.
Again, just the fact that he felt that's not the way it should go--and
by "he" I mean the XO--he felt she should have reported it to her
command first and then used her command as some sort of liaison to
him, just because he feels that's not the way he would do it, that
doesn't make it criminal and that doesn't even necessarily make it
inappropriate. I certainly don't think that it would be unusual for
an officer, who felt they had lost thousands of dollars worth of
jewelry, to immediately go to the command, especially when the ship is
666
getting ready to go underway, and attempt to re-secure that jewelry.
And there's nothing within our customs or protocols as Naval officers
that would suggest such actions are criminal.
And then again, lastly, in regards to the distribution of
the photographs, again, according to the Government's case, this is a
woman that asked for proof of an affair. Proof of an affair was sent.
Again, there's nothing in the lines of that that deal with criminal
conduct, nothing that Commander Penland could be on notice would be
considered criminal conduct.
The courts simply don't allow the government to call
absolutely anything it wants to "conduct unbecoming an officer,"
because that is overbroad, that is too vague. There has to be some
sort of notice through the Naval customs that that type of action is
considered criminal, and that is lacking for all three of these
particular charges of conduct unbecoming an officer, sir.
And with the Court's permission, I would like to approach
at this time. I'll hand a copy of the case to the military judge and
give a copy to opposing counsel, as well.
MJ: Very well.
IMC: I'm approaching the military judge, handing the military
judge U.S. v. Brown.
[Defense counsel handed the case cite to the military judge and trial
counsel.]
MJ: Thank you, Counselor.
Lieutenant Commander Messer, the Government response?
667
TC: Sir, the Government's position is that Article 133 is a
valid article under the Uniform Code of Military Justice which is a
code that's been approved by the President of the United States and is
a valid code under which to charge people with criminal offenses.
Therefore, it's a valid offense under the law. Just take a step back
and look at it.
I think it's absolutely ridiculous that counsel stands up
and argue that sending nude photos of someone's husband to an enlisted
Sailor is somehow becoming of an officer. Obviously Navy custom and
protocol would dictate that these are offenses serious enough to be--a
person needs to be held accountable for, and that's why Article 133,
of course, is an operable article under the Uniform Code of Military
Justice.
So as to the constitutional overbroad argument, there's
nothing here that supports that and these are valid articles--or a
valid article under the Uniform Code and these are valid charges in
this court-martial.
MJ: What about Specification 2 alleging the wrongful or
unlawful visit to the USS PRINCETON, what is the Government's
perception concerning the criminality of that conduct?
TC: Well, sir, again it's--under the code--or under the code
and under the Article 133 it's very broad to encompass all sorts of
different conduct. As to a question of whether or not this specific
conduct violates the article is a question of fact for the members and
the members make that decision. That's why we take the time to
668
empanel officers senior to that of the accused; they can use their
wisdom and knowledge to review the facts of this case and make the
appropriate decision. It's not a decision that the judge should make
sua sponte and not allow it to go to the members.
MJ: Captain Callahan, anything further concerning the 917
motions?
IMC: Nothing further, Your Honor, no.
MJ: Very well. Counsel, thank you for your arguments and
presentations on these interesting issues. The Court will take the
balance of the recess and perhaps a little additional time to review
your arguments and the cited authority and issue a ruling concerning
the 917 motions when we return. Since those 917 motions will not
dispose of all the charged offenses, Captain Callahan, if you have
evidence to present on the merits, please have that standing by.
Court stands in recess. Please reassemble 20 minutes to
the hour. Carry on, please.
[The session recessed at 1125 hours, 23 May 2008.]
[The session was called to order at 1147 hours, 23 May 2008.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time. The
members remain in the deliberation room.
With regard to the Defense motions pursuant to Rule for
Court-Martial 917, this Court has applied the standards set forth in
Rule for Courts-Martial 917, specifically that a finding of not guilty
669
shall be granted only in the absence of some evidence which, taken
together with all reasonable inferences and applicable presumptions,
could reasonably tend to establish each essential element of the
offense charged. Again the Court is cautioned by the instruction and
required to view the evidence in the light most favorable to the
prosecution without any evaluation of the credibility of any
witnesses.
With regard to the first Defense motion to dismiss pursuant
to Rule for Courts-Martial 917, specifically Specification 1 of Charge
IV, the Court finds that there is a failure of proof concerning the
element of intent to satisfy sexual desires or lust. Therefore, the
motion is granted. Specification 1 of Charge IV will be dismissed and
the members will be so instructed.
The Court's ruling clear to both parties?
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: With regard to Specification 2 of Charge III, the Court has
reviewed its notes concerning the testimony of Lieutenant Commander
Moninger. There is testimony in evidence to support the charged
offense in that the accused disrupted the shipboard's routine,
specifically non judicial punishment procedures that had to be
interrupted to address her demand to be heard by the Commanding
Officer or the executive officer of the ship. The Court finds that
that particular act, as alleged, could constitute conduct unbecoming
an officer. That is a matter of fact for the members to determine
670
and, therefore, that motion under Rule for Courts-Martial 917 is
denied.
With regard to the constitutionally vague challenge
applicable to Article 133 offenses, all three specifications in this
case, the Court has considered the case cited to it, United States v.
Brown, found that that case did not control the case here before the
court. That case primarily addressed exercise of First Amendment
rights and also the general proposition of the conduct reflected under
Article 133, that essentially conduct could be rude but not criminal
under Article 133.
Here the Court finds with regard to the three
specifications an alleged abuse of position of authority by the
accused that has been alleged by the Government and that could be
found by the members based on the evidence thus presented the Court,
specifically phone calls made to then NC1 Lewis-Wiggan that had
apparently an impact on her work and her work center, as well as the
ship itself, USS MOBILE BAY. The second specification concerning the
disruption of the duty routine on board USS PRINCETON, the disruption
of the captain's non judicial punishment proceedings, could again be
viewed by the members as conduct unbecoming an officer. And then,
finally, the alleged distribution of nude photographs to then NC1
Lewis-Wiggan likewise could be viewed again as conduct unbecoming an
officer and gentlewoman.
Therefore, with regard to the motion to dismiss all three
specifications under Charge III, that motion is dismissed.
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Are the Court's rulings clear as to the Article 133
offenses and the Defense's 917 motions pertaining thereto?
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: Very well. Are there other matters we need to address
outside the members' presence on the record at this time?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. This 39(a) session is concluded.
Bailiff, please ask the members to join our court.
BAILIFF: Yes, sir.
[The Article 39(a) session concluded at 1151 hours, 23 May 2008.]
[END OF PAGE]
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[The court-martial was called to order at 1152 hours, 23 May 2008.]
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to also
include all of our members.
Please be seated all others.
[All persons did as directed.]
MJ: Members, if you would, in your folders, take out your copy
of the charges in this case. Once you have done so, please focus your
attention on Specification 1 of Charge IV, alleging an indecent act.
Members, please strike through that charged offense. I have dismissed
that offense. It is no longer before you for your consideration.
Based on my decision to dismiss this charged offense, you
are advised the maximum potential punishment has been reduced to a
dismissal and confinement for 11 years.
Members, since this charge has now been removed from your
consideration, you must completely disregard it during your
deliberations.
Will all members be able to follow the Court's instructions
on these matters? Affirmative response from all panel members.
673
Very well. Captain Callahan, although the accused has no
obligation to present evidence and bears no burden in this trial, does
the Defense desire to present evidence on the merits of this case?
IMC: Yes, Your Honor.
MJ: You may proceed.
IMC: Sir, the Defense calls Lieutenant JG Mark Wiggan to the
stand.
MJ: Very well. Bailiff, please call the witness on behalf of
this court.
[The bailiff retrieved the witness.]
LIEUTENANT JUNIOR GRADE MARK P. WIGGAN, U.S. Navy, was called as a
witness for the defense, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. For the record, please state your full name, spelling your
last.
A. Mark Phillip Wiggan.
Q. How do you spell the last name?
A. Wiggan, W-I-G-G-A-N.
Q. And, Lieutenant JG Wiggan, what is your current duty
station?
A. USS NIMITZ.
TC: Thank you. Your witness.
MJ: Lieutenant, if you would just move either closer to the
microphone or move it closer to you, please.
674
[The witness did as directed.]
MJ: Thank you.
WIT: Yes, sir.
MJ: Captain Callahan, your witness.
IMC: Thank you, Your Honor.
Questions by the individual military counsel:
Q. Good morning, Lieutenant Wiggan.
A. Good morning, sir.
Q. Lieutenant Wiggan, how long have you been in the Navy for?
A. Approximately 13, going on--like two months shy of 14
years.
Q. Can you give a brief overview of the places you've served
and the billets you've had in the Navy.
A. I started off USS SAVANNAH. The next assignment was
mainly--mostly--well, all ships, USS SAVANNAH, USS VELLA GULF,
USS O'KANE, precomm stationed for USS MASON, USS PRINCETON, that's
where I got--no, I'm sorry. USS STOUT, that's where I got
commissioned, USS PRINCETON, now USS NIMITZ.
Q. And what is your current billet on board the NIMITZ?
A. I'm the Assistant Damage Control Officer.
Q. Lieutenant Wiggan, do you know Chief Wiggan?
A. That was me.
Q. I'm sorry. Did you know Chief Kimberly Lewis-Wiggan?
A. Yes.
675
Q. And who is she?
A. My ex-wife.
Q. When did the two of you meet?
A. We met in '99 in Bath, Maine for the USS O'KANE.
Q. And when did the two of you get married?
A. In March 2001.
Q. And you said she's your ex-wife. Are the two of you
currently divorced?
A. Yes, sir.
Q. When did the two of you get divorced?
A. We got divorced--it was finalized in October last year.
Q. Are there still proceedings open before the divorce court?
A. That's correct.
Q. What proceedings are still open before the divorce court?
A. The housing market, you know, it's gone bad, so because the
house is still joint. I'm currently working on trying to get it
refinanced so I can take it over and that should be it.
Q. And that is the civil, the court----
A. Correct.
Q. But the court did, in fact, grant you a final dissolution
of marriage?
A. Correct.
Q. And what year and what month were you granted the
dissolution of your marriage?
A. That was in October last year.
676
Q. When did you and your wife physically separate?
A. March 2006.
Q. Is that the date that the two of you, in fact, used in your
divorce filings as the date you physically separated from each other?
A. Correct.
Q. Since the time of March 2006 have you ever gotten back
together with your wife and lived with her as husband and wife?
A. No.
Q. The two of you have been physically separated continuously
since that date?
A. Yes.
Q. Lieutenant Wiggan, do you know Lieutenant Commander
Penland?
A. Yes.
Q. How do you know Lieutenant Commander Penland?
A. She was the Supply Officer on STOUT, USS STOUT.
Q. And when did you meet her?
A. Sometime in 2004.
Q. What was your billet on board the STOUT while she was the
Supply Officer?
A. I was the Engineering Department LCPO.
Q. And approximately how many officers are there on board
the--or were there on board the STOUT at that time?
A. Probably 18, 20. I might be wrong by about four or five or
three.
677
Q. Did you get to know Lieutenant Commander Penland fairly
well during that time?
A. Basically she was just the Supply Officer.
Q. Did you--did you have an affair with Lieutenant Commander
Penland at any time?
A. No.
Q. Have you ever had sexual intercourse with Lieutenant
Commander Penland?
A. No.
Q. How would you characterize your relationship through the
STOUT and even through to this day with Lieutenant Commander Penland?
A. I got commissioned on USS STOUT and basically she was more
like a transition officer, so to speak, work as the LDOs under. When
I got to PRINCETON, it was almost like--still more like a
mentor/mentee relations type because we were having some chief issues
and parts issues on board PRINCETON.
Q. And is she somebody that you would go to and talk to for
professional advice?
A. Correct.
Q. Was your relationship any different than it would be, say,
with a--potentially a male Sailor, a male officer of the same rank in
similar position?
A. No. It would be different.
678
Q. After you and your wife separated in March 2006, was there
a time when she wanted to get back together and she wanted to stay
married?
A. There's several times she tried.
Q. So several times she tried for the two of you to reconcile,
but you never went back and lived with her as husband and wife?
A. No.
Q. Has she accused you of committing adultery with other
women, as well?
A. Yes.
Q. How long were you married to your wife for?
A. Approximately five years.
Q. And safe to say during that time frame that you spent a
fair amount of time with your wife?
A. No. It was always underway. It was back and forth where I
was deployed, she was in port, she was deployed, I was in port.
Q. Did you get to know her--or have you gotten to know her
over the course of the time you've known her well enough to form an
opinion as to her character for truthfulness?
A. No.
Q. And what is your opinion of her character for truthfulness?
A. She likes--how can I put it. She likes status quo, so to
speak. Makes sense to you?
679
Q. It does. Are you saying, though, as far as her character
for being truthful and honest, would you say her character is that she
generally is truthful and honest, or is not truthful and honest?
TC: Objection. Leading.
MJ: Captain Callahan?
IMC: I'll rephrase it.
Q. What is your opinion of her character for truthfulness?
A. It depends on what it is. If she's trying to get
something, she's going to say anything she wants to say.
Q. Are you aware of your wife ever using your e-mail account?
A. A couple times I know for a fact.
Q. I'd like to call your attention to some photographs that
your wife said she found. Have you seen these photographs before?
Are you aware of what I'm talking about?
A. I think so.
Q. Explain how you ended up in possession of those
photographs.
A. The photographs in question, there's like two different
sets. The ones of Commander Penland, those--what happened was my
wife--my wife and I, we had a couple altercations, so to speak. She
scratched me up pretty bad and I borrowed Commander Penland's camera
and in the process of taking--took some pictures of my scars. In the
process of downloading, I guess I downloaded everything on the camera
and so it's like on my laptop. And I remember one night we had an
altercation; she claimed she was using my computer and she showed me
680
on her laptop some pictures and then we had another altercation and
that's pretty much it.
Q. And during that altercation, did you strangle her and throw
her to the ground?
A. No. What I did was I stopped her from trying to scratch me
up some more.
Q. Did you threaten to kill her?
A. No, I don't--didn't.
Q. Immediately following that altercation, did you call
Lieutenant Commander Penland and then give the phone to your wife?
A. No, no.
Q. Are you aware of a pair of photographs that your wife has
said has depicted you that she claims that she was sent from
Lieutenant Commander Penland?
A. Those photographs were taken sometime in Virginia.
Q. Did Lieutenant Commander Penland take those photographs of
you?
A. No.
Q. Who took those photographs of you?
A. My wife did.
Q. And approximately what month, what year approximately were
these photographs taken?
A. These were sometime probably in '04 or '03.
681
Q. Did you give these photographs to your--to Lieutenant
Commander Penland at any time?
A. No.
Q. Did you ever forward any e-mails from Commander Penland to
your wife?
A. No.
TC: Thank you very much. I have no further questions for you.
The prosecution may have questions for you.
MJ: Lieutenant Commander Messer?
TC: Yes, sir. Could I have just a minute?
MJ: You may.
TC: Request permission to approach, sir?
MJ: You may.
TC: I'm retrieving Prosecution Exhibits 10 and 21 from the
court reporter.
MJ: Very well.
CROSS-EXAMINATION
Questions by the trial counsel:
Q. Lieutenant Wiggan, I'd like to start with I guess the last
thing you ended with or one of the last things which was you just
stated that you never forwarded any e-mails to your wife from
Lieutenant Commander Penland; is that correct?
A. No.
TC: Okay. I'm going to show--I am now handing to the witness
what has been marked as prosecution--or, yes, that's Prosecution
682
Exhibit 10 and Prosecution Exhibit 21 [handing PE 10 and 21 to the
witness].
Q. Go ahead and take a look first at Prosecution Exhibit 10;
that's marked on the bottom there.
A. [Reviewing PE 10.]
Q. Have you had a chance to see that?
A. Right.
TC: I'm retrieving Prosecution Exhibit 10 from the witness.
And 21, I handing you 21 [handing PE 21 to the witness].
I'm going to publish this to the members, sir.
MJ: Very well. Which one?
TC: I'm publishing Prosecution Exhibit 10 [sic].
[PE 21 was electronically published to the members and witness.]
Q. Now, you testified that you never forwarded any e-mails to
your wife. This is an e-mail dated 2 December from Syneeda Penland at
her [email protected] account to Wiggan, Mark Lieutenant JG. Is
that you in the address line there, Lieutenant Mark--Wiggan, Mark
Lieutenant JG?
A. Correct.
Q. And that's to your NMCI account on board--or your military
account on board the USS PRINCETON?
A. No, that's from. I'm looking at the one on top, the one----
Q. All right. If you'd just look down at the bottom, that's
an e-mail chain. Do you understand how e-mail chains work?
A. Correct.
683
Q. Okay. So the bottom e-mail was an e-mail sent on December
2nd to you from the accused in this case, Syneeda Penland.
Then if you look at the next group of numbers or letters
above there, it says from Wiggan, Mark Lieutenant JG and then in
parentheses it says [email protected] to Mark and Kim Wiggan at
Verizon.net. Do you see that?
A. Correct. I see that.
Q. Okay. How do you explain that? You just testified that
you didn't--you don't forward any e-mails--forwarded any mails to your
wife from Commander Penland. How do you explain this?
A. I don't know. Somebody probably doctored the e-mail. I
know I didn't do it.
Q. So someone got on board USS PRINCETON, accessed your NMCI
account and sent this to your wife?
A. I don't know.
Q. Do you often leave your CAC card in your computer on the
ship?
A. There's no CAC card. You just login and logon.
Q. So someone had--do people on the ship have your login name?
A. I don't know. I doubt it, but I didn't send anything.
Q. So you have no explanation as to how this could have
occurred?
A. Well, you said it was sent to someone and I don't know.
TC: Okay. I'm now going to show you Prosecution Exhibit 21.
I'm publishing that to the members, sir.
684
MJ: Very well.
TC: Well, actually, sir, I put up the wrong exhibit. Well, it
was the same--it's the same issue I was addressing, but we'll address
it with this one, too.
So on this e-mail here, on--let me go back and correct the
record, sir.
[PE 10 was electronically published to the members and witness.]
Q. So when you were talking about Prosecution Exhibit 10 and
the date of the e-mail is 29 September and that was to Mark Wiggan--
Ensign Mark Wiggan from Lieutenant Commander Syneeda Penland. Do you
agree with that?
A. Correct.
Q. Okay. And then it was forwarded on from Mark Wiggan,
Ensign, at your CG59 address to Kim Lewis and that was on September
29th, and again you have no--you can't explain how that e-mail was
received by your wife from your account?
A. I'm pretty sure if you go into my account on the ship it's
not here.
Q. Say that again.
A. I'm pretty sure that that didn't come off of the account I
have on the ship.
Q. So that from line has somehow been doctored?
A. It could be. I don't know.
685
Q. Okay. I'm now going to show you Prosecution Exhibit 21.
[PE 21 was electronically published to the members and witness.]
Okay. This was an e-mail that was sent from Lieutenant--or from
Syneeda Penland from her [email protected] address on the 2nd of
December to a Lieutenant JG Mark Wiggan, subject, Hey. Then if you
look above that, the message is forwarded from Mark Wiggan, Lieutenant
JG at your CG 59 address to Mark and Kim Wiggan at Verizon.net. Can
you explain how that message got forwarded on?
A. The same thing again.
Q. So your testimony here today is that you did not forward
that message on to your home account----
A. Correct.
Q. ----to your wife's account?
A. Correct.
Q. You do understand you're under oath?
A. Correct.
Q. Now, you testified also--well, let's start with some
preliminary stuff. You said that you were divorced in October '07.
So that would mean that you were married on September of '06 to Chief
Kimberly Lewis-Wiggan?
A. September of '06, correct.
Q. And you were married to her on January of 2007?
A. Correct. We were separated, legally separated.
Q. But you were still legally married?
A. Correct, but legally separated.
686
Q. And so that period from September 2006 to January 2007 you
were married to your wife that entire time?
A. Correct.
Q. Now, you testified that you had physically separated from
your wife in March 2006, but that wasn't a legal separation, correct,
there was no court order determining that you have been legally
separated, that was just----
A. Yes, it was.
Q. The court did not give you a final decree that your
relationship was legally separated, correct?
A. Said it was we're legally separated, meaning we're not
married--we're not maintaining a husband and wife relationship; it's a
legal separation.
Q. You understand in the State of California you're not
officially legally separated till a court orders so, correct?
A. I'd have to talk to my lawyer about it.
Q. So what you're referring to is that on your petition for
divorce you put a separation date on that petition and on that
petition you put March of 2006, correct?
A. Okay.
Q. So to your knowledge you never had a court order ordering
that you were legally separated?
A. I will double check with my lawyer.
687
Q. Now, you testified that after March 2006 you never lived
with your wife?
A. No. I visited a couple times, but that's it.
Q. So when your wife returned from deployment in August of
2006, you were not living in the home that you shared?
A. No.
Q. And when you reconciled in mid September 2006, you did not
move back into the house with your wife?
A. We didn't reconcile.
Q. So you----
A. I stayed a couple nights in the other bedroom, but that's
it.
Q. So you did move back into the house?
A. We didn't resume our marital status.
Q. When you talked about an altercation with your wife in
January of 2007 in which your wife found photos and then she came at
you and scratched you and stuff, where did that altercation occur?
A. In the house.
Q. So you were staying at the house then?
A. That night, yes.
Q. Just that night?
A. Correct.
Q. Were there any other nights between mid September when you
said you spent a couple nights there and the incident in January of
2007 that you spent a couple nights at the house?
688
A. Correct, in the other bedroom.
Q. So you would move in and out of the house using that
bedroom?
A. Just visited a couple times. That's it.
Q. When you say "visited," you came to the house to talk with
your wife?
A. We had an agreement where I could come by and just stay
there a couple nights. That's it.
Q. Where were all your belongings, clothes, things of that
nature kept during that time?
A. Most of my stuff was at the house and I stayed on and off
the ship.
Q. Did you stay anywhere else during that period other than
your house or on the ship?
A. With a couple friends.
Q. Did you ever stay at Lieutenant Commander Syneeda Penland's
home?
A. When I house-sit--house-sat for her, that's it.
Q. When did you house-sit for her?
A. A couple times when out of town.
Q. When was that?
A. I can't recall for sure.
Q. Can you give us a rough--can you give the members a rough
estimate.
689
A. It was, I know, two trips she went on for a fact. It was
like probably a week--a week long. I'm not too sure when they were.
Q. Was it before your wife went on deployment or after your
wife went on deployment?
A. This was like after she came back.
Q. So it was after your wife and you had separated?
A. Correct.
Q. And how long did you house--was it before Christmas or
after Christmas?
A. Like I said, I'm not too sure. It might have been before
Christmas.
Q. Do you remember how long you spent in her house?
A. Probably like a week.
Q. And were you given a key to her house?
A. Yes, I was.
Q. And did you give those keys back as soon as you were done
housesitting?
A. I'm not too sure. I think I did.
Q. So if we heard testimony here in this court that there was
an incident in which Commander Penland demanded her house keys back
from you, that would not be accurate?
A. There was one time--I think there's one time she came on
board PRINCETON and was--she misplaced some stuff that she thought I
took. That's it.
690
Q. Well, all right. Let's talk a little bit about that
incident since you brought it up. The PRINCETON incident, when did
she come on board the ship, or do you recall the rough date of when
that happened?
A. I kind of recall March, it was March of '07 or February
'07.
Q. February or March of '07?
A. I think so. Something close to that.
Q. If I told you the date of February 22nd, would that be
about--would that be accurate?
A. Sounds about right.
Q. Now, on that day isn't it true that she came on board
earlier and confronted you about $30,000 worth of jewelry missing?
She came on board the ship?
A. Correct.
Q. And you spoke with her?
A. Yes, I did.
Q. She then left the ship and then returned sometime later to
speak to the Chief Engineer, is that right?
A. Correct.
Q. And the Chief Engineer of the ship was Lieutenant Commander
Murphy?
A. Correct.
691
Q. And Lieutenant Commander Murphy spoke with Lieutenant
Commander Penland and then she was not happy with what he had to say
with her, is that right?
A. Probably. I wasn't too sure----
Q. Did you meet with Lieutenant Commander Penland again at
that point?
A. No, I didn't the second time.
Q. Do you remember what time of day she came on the ship the
first time to talk to you?
A. I'm not too sure. It might have been before lunchtime.
Q. Before lunch. And then do you remember when she came back
on again to speak to the Lieutenant Commander, the CHENG?
A. It was sometime after lunchtime. I'm not too sure.
Q. Did you talk to the CHENG after the CHENG spoke to
Lieutenant Commander Penland?
A. I think so.
Q. And what did you tell him?
IMC: Objection. Relevance.
MJ: Lieutenant Commander Messer?
TC: It goes to the state of mind of declarant as to why
Lieutenant Commander Penland was on board and what he was telling the
CHENG as in reference to her visit and why she was there, whether it
was necessary enough, whether it was appropriate.
MJ: How is that relevant to the charged offenses?
692
TC: Well, she's been charged with disrupting the ship and the
ship's schedule on that day, sir. I'm just trying to get more facts
as to what effect her visit and the time of her visits and how much
time the personnel on the ship spent meeting with her and what
discussions or what the state of mind was of Lieutenant Wiggan and the
others at that time in response to her visits.
MJ: The Government hasn't charged as improper conduct the
meetings with the Chief Engineer. Sustained.
TC: Aye, sir.
Q. Let me ask you this, Lieutenant Wiggan. How long did the
Chief Engineer--do you know how long the Chief Engineer discussed the
issue with Lieutenant Commander Penland?
IMC: Objection. Again relevance, sir.
MJ: Sustained.
Q. Do you know how long the XO discussed the situation with
Lieutenant Commander Penland?
A. No, I don't, but I don't think it was that long.
Q. Well, you just said you don't know.
A. Meaning if it was long, I’m pretty sure he would have said
something to me.
Q. Were you present at the meeting?
A. No, I wasn't.
Q. Were you watching the situation, meaning that you're
keeping tabs on where people were and what was going on?
693
A. No. But the time they spoke to me it sounded as if it was
brief when they spoke to me about it.
Q. Were you still on board the ship while Lieutenant Commander
Penland was on board?
A. Yes, I was.
Q. And as far as you know, what was the--what was the outcome
of that? Did you have, in fact, have her jewelry?
A. No, I didn't.
Q. And did you ever receive an apology from Lieutenant
Commander Penland for that?
A. Yes, I did.
Q. When did you receive that apology?
A. I'm not too sure if it was the next day in the form of an
e-mail.
Q. Now, the question I have is why would Lieutenant Commander
Penland accuse you of stealing her jewelry?
A. Well, I think there was another time that I did house-sat
for her before that happened. I think it was a week before. I'm not
too sure.
Q. Well, you didn't tell me that when I asked you earlier.
A. But that what I told you was that I house-sat for her a
couple times and you asked me if one of those times was before or
after Christmas and I told you that----
Q. And you said before.
A. ----it was before. It was a couple times.
694
Q. So your testimony here----
A. There were a couple times before and after Christmas that I
did it.
Q. Let's get it straight. So your testimony here today is
that you house-sat for her before Christmas?
A. Before and after Christmas.
Q. Oh, now after Christmas, as well.
A. Before and after Christmas.
Q. So what were the exact times you house-sat for her?
A. I'm not too sure. I'm not too sure about what dates and----
Q. So was it near the time that you were accused of this
stealing of the jewelry?
A. Correct.
Q. So you house-sat for her, but you testified that you had
returned the keys to the house back in the fall, correct?
A. Right. I told you--the question you asked me was when I
house-sat for her, did I return the keys immediately and I answered
you and I said I think I did.
Q. Okay. So you actually didn't; you kept the keys?
A. I said I think I did. I'm pretty sure I did.
Q. So did you have the keys to her house on February--at the
end of February, when you were accused of stealing her jewelry, did
you still have keys to her house?
A. At that time, no, I didn't.
695
Q. So why would she think you had stole her jewelry?
A. She had just came back from a trip. Her explanation was
she came back from a trip and she left her jewelry in one bag and she
thought I had kept her jewelry or something.
Q. So did you often go to Lieutenant Commander Penland's house
when she wasn't there?
A. Only when I house-sat for her, just stayed there at night.
That's it.
Q. But you hadn't house-sat for her for--you said--can you
give me--you can't tell me exactly how close in proximity you had
house-sat?
A. The time of that incident I know for a fact it was like
within less than a week she had just came back from another trip.
Q. So you're all of a sudden remembering that it's within a
week of this incident.
A. Been over a year ago. I can't remember everything.
Q. And you--so your testimony here today is that you didn't
often go to her house unless you were housesitting?
A. Most of the time it was housesitting, correct.
Q. And what would you do when you would house-sit for her?
Would you actually live in her house?
A. I just stayed there. That's it.
Q. So you lived there? Sleep there?
A. Correct.
696
Q. Eat your meals there?
A. Housesitting is basically----
Q. It's a simple question. Can--I'll ask it again. Did you
eat your meals there?
A. Yes, I did.
Q. So you were living there?
A. No, that's not living.
Q. You would use the bathroom there?
A. Correct.
Q. You'd use the shower there?
A. If I sleep there that night, I'm going to take a shower
before I go to work the next morning.
Q. But your testimony here is that you weren't living there?
A. I'm kind of confused, sir.
TC: Apparently. I'm going to show you some photos.
Sir, may I approach?
MJ: You may.
TC: I'm returning Prosecution Exhibits 21 and 10 to the court
reporter and I'm retrieving Prosecution Exhibit--the photos--is that
1 and 2?
REPORTER: Yes, sir.
TC: Prosecution Exhibits 1 and 2.
Sir, I'm not sure if I've requested to publish all of the
photos in Prosecution Exhibit 2 and 1 to the members, but if I hadn't
already done so, at this time I'd request that.
697
MJ: According to my notes, they were published. I'm not sure
if you showed them all, but you did request to publish them and that I
have a note that you did so.
TC: Yes, sir. I am publishing to the members at this time
Prosecution Exhibit 2, Exhibit P-1.
[Photo P-1 of PE 2 was electronically published to the members and
witness.]
Q. Do you recognize that photo? Do you not recognize that
location?
A. [Reviewing Photo P-1 of PE 2.] Not really.
Q. You don't? You've never seen it before?
A. I'm not too sure, no.
TC: I'm showing the member P-2.
[Photo P-2 of PE 2 was electronically published to the members and
witness.]
Q. Do you recognize that at all?
A. [Reviewing Photo P-2 of PE 2.] No.
Q. So this is not Lieutenant Commander Penland's home, the
home you house-sat in?
A. I'm not too sure.
Q. Well, you're not too sure. You just testified you
house-sat for her on multiple occasions for multiple weeks. You don't
know what the house looks like?
A. Right. I go there late and I leave early. That's pretty
much it.
698
Q. So you've never really been to Lieutenant Commander
Penland's house, have you?
A. Just house-sat for her. That's it.
Q. Well, I'm showing you photos right now and you can't even
tell us whether or not it's her house.
A. I'm not too sure. I can't recall.
Q. Okay. I'm going to show you Prosecution Exhibit 2, P-5.
[Photo P-5 of PE 2 was electronically published to the members and
witness.] Do you recognize that photo?
A. Not really.
Q. This wasn't one of the photos that your wife confronted you
with when you were sleeping over or spending the night in January that
she had found on your laptop?
A. It could be. She had a bunch of photos on her laptop.
Q. So you've never seen this photo before?
A. I'm not too sure. I don't think so.
Q. And I know this is a sensitive question, but it has to be
asked. There's a mole on the shaft of that penis there. Do you have
a mole similar to the mole in that photo on your penis?
A. Probably.
Q. So that is your penis there?
A. My wife and I, we took some pictures together, I mean.
Q. So this is a photo of you having sex with your wife?
A. I'm not too sure.
699
Q. So you didn't take this photo?
A. I didn't take it.
Q. This is P-8. This is a more--another close up in the same
group of photos. [Photo P-8 of PE 2 was electronically published to
the members and witness.] You see that mole there. Is that your
penis?
A. I don't know.
Q. You have a mole like that mole on your penis, though,
correct?
A. Several. I don't sit there and examine myself like that.
Q. Well, it's your body. You certainly--and I understand it's
an awkward question. But you certainly would recognize whether or
not--and that's a very large size mole or birthmark or something on
the penis there. You can tell the members whether or not that's your
penis. I've asked you that question. You just testified in the
previous picture that, yeah, that was probably you and you were having
sex with your wife. Is this or is this not your penis?
A. Could be. I'm not too sure. We took some pictures
together. I'm not too sure what it looked like.
Q. And who were you having sex with there?
A. If that was me, that's my wife.
Q. But you don't really know who that is in the photo, do you?
A. No.
TC: I'm now showing the witness 38, P-38.
700
[Photo P-38 of PE 2 was electronically published to the members and
witness.]
Q. Another photo that was found on your laptop by your wife.
Who is that person, do you know?
A. It looks like--it looks like Commander Penland.
Q. Do you recognize the tattoo on the left arm?
A. No, I don't.
Q. So you've never seen her have--you've never seen her left
arm before?
A. No, I don't think so.
Q. But you recognize that person to be Lieutenant Commander
Penland?
A. It could.
Q. And can you identify whose penis is in that photo?
A. No, I can't.
Q. Can you say with any certainty whether or not it's your
penis?
A. It's not mine.
Q. So if your wife were to have testified here in court under
oath that that was your penis and she recognized it, she would be
lying?
A. Yes.
Q. Are you circumcised or uncircumcised?
A. I am.
701
Q. You're circumcised. And isn't it true you were circumcised
as an adult?
A. Correct.
Q. But it's your testimony here today that that's not your
penis?
A. Correct.
Q. Just a couple more. This is P-17. [Photo P-17 of PE 2 was
electronically published to the members and witness.] That's your
penis there?
A. I don't think so.
Q. Well, that's a similar picture to the other ones. We have
the mole there again. You just testified earlier that you do have a
mole on your penis there. Now you're saying that's not you?
A. I said it could have been me. I didn't say it was me.
Q. You can't tell the court with any certainty whether one way
or the other that's your penis or not?
A. No, I can't.
Q. And how about the person in that--the other person in that
photo; is that your wife?
A. If that's me, that's my wife.
Q. And your wife wears red nails?
A. Sometimes. It depends on where she's going.
Q. And that skin color is consistent with your wife's skin
color?
A. Yes. I'm not too sure who they are.
702
Q. Well, you spent over six years--five years married to your
wife and you dated her before. You can't tell the court with any
certainty what--if that's her, your wife or not?
A. I mean I can tell, but, I mean----
Q. Isn't the truth that that's actually you having sex with
Lieutenant Commander Penland?
A. No.
Q. And there's P-32. [Photo P-32 of PE 2 was electronically
published to the members and witness.] Is that the mole that's on
your penis?
A. I don't know.
TC: I'm publishing to the members what has been entered into
evidence as Prosecution Exhibit 1.
[PE 1 was electronically published to the members and witness.]
Q. This was entered into evidence as the thumbnails that were
recovered off of your computer. Do these photos look familiar to you?
A. You showed me a couple photos.
Q. Right. Now, your testimony was that you had borrowed
Lieutenant Commander Penland's camera and took some pictures of some
bruises or scarring on your body; is that right?
A. Correct.
Q. Okay. I want you to briefly look through these photos
here. Tell me which of those photos were the ones you took of your
body.
A. None.
703
Q. Okay. Second page of this exhibit, which of the photos
were the ones you took of your body?
A. None of those.
Q. So your testimony was that you borrowed Lieutenant
Commander Penland's camera and you took photos of yourself and then
you downloaded those photos to your laptop. Is that your explanation
as how these photos got on your laptop also?
A. I mean, some of them. I'm not sitting here analyzing all
of them.
Q. So you admit that some of these photos were on your laptop?
A. What she showed me was her laptop with photos----
Q. Right.
A. ----and she was screaming, making noise, trying to scratch
me up some more and so forth.
Q. Well, now her testimony here in open court under oath was
that she had found these photos on your computer. She then
transferred those photos over to her computer and went and confronted
you. After confronting you, you then went and deleted the photos off
your computer. Is that true?
A. Correct.
Q. And isn't it true that when we had a pretrial interview, I
asked you about this and you told me, "Oh, those photos must have got
on my computer because I borrowed Lieutenant Commander Penland's
camera and, when I downloaded the photos I have taken, these photos
downloaded also." Isn't that right?
704
A. Correct. I said what was downloaded. That's it.
Q. Well, if that's the story, how come there's no photos on
these thumbnails of the injuries that you were taking--you borrowed
Lieutenant Commander Penland's camera to photograph in the first
place?
A. I don't know what happened to the pictures after--after
she, you know, transferred them over to her computer. I don't know
what she did.
Q. Well, so is it your testimony that when you went to your
computer to delete these photos, you also deleted the pictures that
you had taken of the injuries on your body?
A. Correct.
Q. How many photos did you take?
A. I took like about three.
Q. What were they photos of?
A. Photos of my ears being scratched up.
Q. And when you downloaded--I want you to explain to the
members the process of how you downloaded those photos off Lieutenant
Commander Penland's camera. Can you do that for us.
A. Sure. You hook up the cable to the computer and you just
download them. It's not like you get a choice of what you want to
download. You just download them. That's it.
Q. Well, don't you have to install software on your computer
for a specific camera?
A. No. Windows automatically does the photos.
705
Q. And it doesn't ask you which photos you want to download
and which ones you don't?
A. Like give you a quick download where you just download the
pictures. That's it.
Q. So you had no idea of what the content was of the photos
you were downloading on the computer?
A. No.
Q. You didn't look at the photos that you had taken of your
ears, the three photos, after you had downloaded them?
A. I looked at them on the camera and then downloaded them.
That's it, and then I was done.
Q. So you never bothered to open the file up and look in there
and say, okay, that's what the photos look like? You just left it on
your computer like that?
A. Correct.
Q. And when did that happen?
A. This happened like sometime about December time frame.
Q. Why is it that you borrowed Lieutenant Commander Penland's
camera in December?
A. Because before we had some altercations, we were having a
lot of altercations. I got scratched up and I just wanted to get some
pictures of it.
Q. So out of all of your friends, out of all the people who
own digital cameras in the world, you went to Lieutenant Commander
Penland?
706
A. Probably one of the times when I was housesitting for her I
just borrowed her camera and just took pictures.
A. Oh, okay. So we're back to housesitting again. So you
house-sat for her sometime in December, too?
A. I'm pretty sure I did.
Q. So now I'm trying to count all the incidents of
housesitting. We have a housesitting incident now after Christmas but
before the incident on PRINCETON, correct?
A. Correct.
Q. So now you house-sat for her sometime in December, too.
That's why you borrowed her camera?
A. Even housesitting, I asked her if I could just borrow her
camera and take some pictures and that's it.
Q. So you maybe didn't get the camera when you were
housesitting; you just went to her house and asked her to borrow the
camera?
A. I'm not too sure.
Q. You can't recall that at all?
A. It's foggy, so----
Q. Well, wouldn't it have been kind of a traumatic situation;
I mean, you've just been scratched on your ear and you want to
document it; I mean you don't remember that event at all?
A. Most of what happened to me and my wife I try to forget.
707
Q. So you just selectively forgot how you--who you got the
camera--well, you can remember you got the camera from Commander
Penland, right?
A. Correct.
Q. But you can't remember under the circumstances in which you
got it?
A. [No audible response.]
Q. Let me ask you this. Did you take the camera from her
house or did she give it to you?
A. No. I took the pictures and then I hooked up the cable to
the computer.
Q. That was not my question. How did you get the camera? Did
you go to her house and take it? Did you take the cable. Or did she
give it to you?
A. I went to her house and that's it.
Q. And did what?
A. Went to her house, took the pictures, downloaded them to my
computer and that's it.
Q. Was she--oh, okay. So you took the photos in her house and
downloaded them there and just so the camera never left the house?
A. No.
Q. Was she home at the time?
A. No, I don't think so.
708
Q. How did you know where her digital camera was?
A. Well, before she left, she told me like--I asked her about
it. She said okay, and that's pretty much it.
Q. But you weren't living at her house at the time because you
were living with your wife at the time, right?
A. I wasn't living with my wife.
Q. Well, you were staying at your house that you were paying
the mortgage on with your wife; you were staying there, right?
A. Correct.
Q. But so you drove to Commander Penland's house. She wasn't
home. You took photos at the house. The camera never left the house.
And then you downloaded your laptop. That's the story?
A. Correct.
Q. How did you get into Lieutenant Commander Penland's house?
A. I was housesitting for her.
Q. Oh, you were housesitting at that time. But you just
testified earlier that when you house-sit, you stay at the house. You
eat your meals there, you take showers there, you sleep there. So you
weren't house sitting at the time, were you?
A. Like I said, I can't really recall.
Q. How did you know where she kept her camera? You just had
used it in the past?
A. No, I didn't say that.
Q. Did she give you permission to use her camera?
A. [No audible response.]
709
Q. So had you had--so you had--had you used her camera in the
past?
A. No.
Q. Never?
A. Never.
Q. So she gave you her permission to--how did she give you
permission? Did you call her up and say "I want to use your--you
know, I need to take some pictures of my ears"?
A. Probably something to that effect. I'm not too sure.
Q. But you don't--you can't recall?
A. A lot of what happened between my wife and myself I try to
forget.
Q. This isn't about you and your wife. This is about your
relationship with Lieutenant Commander Penland and how you just come
and go from her house and just go over and use her camera and use her
other stuff. I mean, that's what I'm trying to get at here. And
you're telling the members here that this camera had very sensitive
photos on it which you can kind of identify your penis and then you
kind of can't. We'll get to that--that's my next question is you said
you took photos in the house. Well, let's go to that question. You
said you took photos of your ears in the house, the camera never left
the house. Well, how did photos of you and your wife having sex get
on the camera?
A. They weren't on the camera.
710
Q. Oh. So the photos that are in these--in--the photos that
are here, these thumbnails, some of those photos were just extra
photos that have been put into that thumbnail group. They're not--
these are not all the photos that were downloaded off that camera?
A. I don't know. I don't know what she did with the
downloading.
Q. Well, you certainly know--you've admitted to the members
that these photos were on your computer. Is it your testimony here
today that the photos that are represented in these thumbnails were
not the photos that are on your computer?
A. I'm pretty sure some of them are not.
Q. Pretty sure. I mean is that an affirmative yes, some of
these are different or is that just you just can't remember because
you blocked all this out?
A. Like I said, the day she confronted me, you know, she
claimed she got them off my laptop and she had all these pictures,
didn't really pay attention to them, and she was still screaming at
me. That's pretty much it.
Q. Well, let me ask you this. If she didn't get them off your
laptop, how would your wife had gotten such sensitive photos of
Lieutenant Commander Penland?
A. Like I said, it must have been a time when I extracted them
from the camera to my laptop.
711
Q. So now we're--okay. So now we're back to the story that
all these photos came off of the camera when you downloaded it. So
you would agree that these thumbnails had to have come off the
camera----
IMC: Objection, sir. He's misstating his testimony repeating it
back to him. The witness has repeatedly testified some of them came
from the camera, some of them did not come from the camera and were
mixed in by the wife. He keeps restating his testimony back to him
that your testimony is either all of these came from the camera or all
of them came from the wife. He's misstating it.
MJ: Overruled. You'll have an opportunity to resolve that
issue on redirect.
Commander Messer.
Q. I'm just trying to get to the bottom of this, Lieutenant,
as far as how this makes sense. So you told us that you borrowed the
camera and you downloaded photos and that your wife must have inputted
some other photos. But my question is how would your wife had gotten
ahold of sensitive photos such as these of Lieutenant Commander
Penland? I mean, what's the only explanation--what is the--how do you
explain that?
A. And I told you before, when I downloaded those pictures, I
don't know what I downloaded.
TC: May I approach, Your Honor?
MJ: You may.
712
TC: I am returning--I'm returning Prosecution Exhibit 1 and 2
and I'm retrieving Prosecution Exhibit 8 from the court reporter. I'm
publishing Prosecution Exhibit 8 to the members.
[PE 8 was electronically published to the members and witness.]
Q. You testified on direct that this photo was taken in
Virginia; is that correct?
A. Correct.
Q. It was taken by your wife?
A. Correct.
Q. Where was it taken?
A. That was probably at a friend's house.
Q. At a friend's house?
A. When they were away, correct.
Q. So you and your wife were alone at the time this photo was
taken?
A. Correct.
Q. And the time frame was 2003, 2004?
A. Correct.
Q. Did--were you aware of this photo's existence?
A. She took--she took the photos. She kept them. I'm not too
sure.
Q. So you didn't--after this photo was taken, you didn't--you
never kept a copy of it?
A. No, I don't.
713
Q. Did you--did you ever know--do you know that your wife had
distributed copies of this to anyone?
A. I'm not too sure.
Q. Why would you wife have kept a copy of this photo?
IMC: Objection. Speculation.
MJ: Commander Messer?
TC: I think the witness can answer the question. I mean, he's
familiar with his wife. I think I've laid an adequate foundation he
knows his wife.
MJ: Overruled.
Q. Answer the question.
A. Repeat, please.
Q. Why would your wife keep a photo like this around?
A. I mean, it's me, we're married; I don't know.
Q. Now, that we heard testimony here that this photo was
e-mailed to your wife at work from a hot mail account entitled "the
other woman." Do you know who would own a hotmail account entitled
"the other woman"?
A. No, I don't.
Q. And you have no knowledge of anyone that would have
e-mailed this photo to your wife?
A. No.
Q. Do you believe your wife e-mailed it to herself?
A. Possible, yeah. I don't know.
714
Q. But you don't know for sure one way or the other?
A. No.
Q. Now, you testified on direct examination that--let me ask
you this. e-mail addresses, are you the owner of an e-mail address
entitled [email protected]? Is that you?
A. It was.
Q. It was. So you did have a Yahoo account in that name?
A. Correct.
Q. Now, Prosecution Exhibit 19 that's been entered into
evidence, we have evidence of an e-mail sent from the
[email protected] account to Syneeda Penland at
[email protected] account, and in that e-mail you state this
e-mail is in reference to our child and it's dated 3 January 2007.
Isn't it true at that time you believed that Lieutenant Commander
Penland was pregnant with your child?
A. No, because there's no way she could have been pregnant
with my child.
Q. So why would you send her an e-mail stating that if you
didn't believe that to be true?
A. I didn't send her an e-mail like that.
Q. So it's your testimony here today that this was an e-mail
created by someone else?
A. Yes, sir.
715
Q. Now, on January 1st there's an e-mail, and this is
Prosecution Exhibit 15, from the other woman to your wife and in that
e-mail the writer of the e-mail states "Mark is perfectly aware of my
pregnancy and he and I have spoke about it last week and I provided
him proof." Were you ever provided proof by Lieutenant Commander
Penland that she was pregnant with your child?
A. That's impossible.
Q. So it's a yes or no question. Is the answer to that no?
A. No.
Q. So you were never told by Lieutenant Commander Penland at
any time that she was pregnant with your child?
IMC: Objection. Asked and answered.
MJ: Overruled.
Q. Answer the question.
A. No.
Q. Did you go out to lunch with your wife after the PRINCETON
change of command sometime in October 2006?
A. Yes, I did.
Q. The name of the restaurant was Island Spice, is that right?
A. Correct.
Q. And isn't it true you also invited Lieutenant Commander
Penland to be present at that luncheon?
A. No, I didn't.
Q. I'm sorry?
A. No, I didn't.
716
Q. So when your wife testified here at trial that she went to
eat lunch with you at Island Spice restaurant and Lieutenant Commander
Penland was present, she is lying?
A. She was there. That's pretty much it.
Q. Oh. So Lieutenant Commander Penland was in the restaurant?
A. Probably passed by. That's it.
Q. Well, explain that to the members. I'm not quite sure.
A. Meaning she was sitting down in the restaurant, said hello
and that's pretty much it.
Q. So you didn't intend to have your wife and Lieutenant
Commander Penland meet at that restaurant?
A. No.
Q. And it's your testimony here today that Lieutenant
Commander Penland didn't sit down at the table with you and have a
discussion with you and your wife?
A. No, she didn't.
Q. And is it true that after that meal you and your wife went
back to USS PRINCETON?
A. Yes, that's true.
Q. And isn't it true that Lieutenant Commander Penland
followed you and your wife back to the PRINCETON and confronted the
two of you on the pier by the quarterdeck to the ship?
A. No, that's not what happened.
717
Q. Well, what happened?
A. That day we went back to the ship. I had to grab some
stuff. And she came up on the ship. I think she was talking to the
CDO or SUPO----
Q. I'm sorry to interrupt you. When you say "she," who are
you referring to?
A. Ms. Penland.
Q. Okay. So you went back to the ship and then she was on the
ship for some other reason?
A. Correct.
Q. Explain.
A. I don't know what she was on the ship for.
Q. So there was never an altercation between you, Lieutenant
Commander Penland and your wife on the pier by USS PRINCETON on the
day of the PRINCETON's change of command?
A. No.
Q. So any witnesses that are called in here into court and
testify that they saw the three of you out there, they would be lying?
A. Yeah. That's impossible because, you know, there wasn't
any altercation between the three of us.
Q. So Lieutenant Commander Penland never threatened you and
said I'm going to go to your chain of command and let them know about
our relationship?
A. No. There was no relationship.
718
Q. So there was never a phone call made by you on that day to
Lieutenant Commander Moninger where you said, "Sir, I've got some
personal business. This person's going to come to the quarterdeck and
make these allegations" and then in response Lieutenant Commander
Moninger told you "Hey, don't bring your personal business to my
ship"? That never happened?
A. I called him that day because I was having problems with my
wife.
Q. Oh, so you do--you do agree now that you did call
Lieutenant Commander Moninger on that day?
A. I think I did.
Q. You think. Do you remember or don't you?
A. I'm not too sure.
Q. So why would you call Lieutenant Commander Moninger and
tell him that this--I mean, so your testimony here today is that you
didn't tell him anything about Lieutenant Commander Penland coming to
inform the ship about your affair; you just told him you called him to
tell him you were having problems with your wife?
A. I mean, I called him on several occasions telling him I had
some problems with my wife. We spoke about that.
Q. So if Commander Moninger is to come into this courtroom and
testify that you called him on that day and warned him about Commander
Penland coming to the ship to make these accusations, he'd be lying?
A. Yeah.
719
Q. That's yes. And isn't it true, though, that Lieutenant
Commander Penland had threatened you and said she was going to go to
the ship. That's why you called. And then she actually did go to the
quarterdeck of the ship that day.
A. She didn't threaten me.
Q. That's not true?
A. No.
Q. Now, we had--in our pretrial interview I asked you a
question if you were aware that Lieutenant Commander Penland was
contacting your wife and you told me yes, isn't that right?
A. Correct.
Q. What time frame were you aware of Lieutenant Commander
Penland contacting your wife? Do you remember the rough dates?
A. I'm not too sure.
Q. Was it after your wife came back from deployment?
A. I mean, it's obviously after that because she was underway.
Q. What type of contact were you aware of that Lieutenant
Commander Penland had with your wife?
A. I'm not too sure.
Q. Do you know why Lieutenant Commander Penland was contacting
your wife?
A. Huh-uh.
Q. You don't have any idea?
A. No. I think they contacted each other. I'm not too sure
when.
720
Q. Were they friends?
A. No.
Q. To your knowledge was Lieutenant Commander Penland aware
that you were married to NC1 Lewis-Wiggan or NCC Lewis-Wiggan?
A. She knew I was married on the STOUT.
Q. So she knew as far as back as USS STOUT that you were
married to then--well, now Chief Lewis-Wiggan, then Petty Officer
Lewis Wiggan, correct?
A. Should have.
Q. Did she--did she know that you were still married to Chief
Lewis-Wiggan in the fall of 2006 into the spring of 2007 when you were
housesitting for Lieutenant Commander Penland; did she still know that
you were married?
A. I mean, there's--correct. I mean, there's no reason why----
Q. Well, you had never--you hadn't told her at any time that
you were divorced, had you?
A. I hadn't told her. I had a couple discussions about, you
know, my personal life, but that's about it. I'm not too sure.
Q. And you never showed her any kind of paperwork saying,
"Hey, I'm divorced, this is the divorce decree here," nothing like
that?
A. No. We had some discussions because I know she went
through--she shared with me before that she went through a divorce
herself.
721
Q. Did you often have many personal conversations with
Lieutenant Commander Penland?
A. There was a lot of mentoring conversations because I had a
couple questions.
Q. Well, what did--you talk about you had a mentor/mentee
relationship with her. We've presented evidence to the court that
hundreds of phone calls between Lieutenant Commander Penland's cell
phone, your cell phone, her government cell phone, the quarterdeck of
the USS PRINCETON, back and forth. What was discussed in all these
conversations?
A. Like I told you before, we had some--I had some--when I
just got to PRINCETON, there were some problems with some chief
because he was just crazy and we had some DLR issues.
Q. So it took over hundreds of phone calls for you to sort out
this one issue with the chief or did you discuss other stuff?
A. I mean, she didn't just call me at the ship.
Q. Well, isn't it true that you had more than a professional
relationship, you had a personal relationship with Lieutenant
Commander Penland?
A. We're friends basically, but that's it.
MEMBER [CDR TUCKER]: Your Honor?
MJ: Commander, time out? Very well.
Commander Messer, how much more?
TC: If we could have a brief recess. I'm almost finished up,
sir, but I'd like just a brief recess to make sure I've covered
722
everything I want to ask this witness.
MJ: Very well. It sounds like a good time to take a break
then. Members, if you would please cover your notes. Subject to my
standard instructions, you may depart on a brief recess. Please
reassemble at five minutes after the hour.
BAILIFF: All rise.
[All persons did as directed.]
MJ: The members may depart.
[The members withdrew from the courtroom.]
MJ: Court stands in recess. Carry on.
[The court-martial recessed at 1255 hours, 23 May 2008.]
[The court-martial was called to order at 1310 hours, 23 May 2008.]
MJ: Bailiff, please ask the members to rejoin us.
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: Court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time.
All others, please be seated.
[All persons did as directed.]
MJ: And, Lieutenant Commander Messer, you may continue your
examination of this witness.
TC: Thank you, sir.
723
Q. Lieutenant JG Wiggan, just a couple more questions on the
phone calls. To your knowledge was Commander Penland friendly with
anyone else on board USS PRINCETON?
A. When you say friendly, what do you mean?
A. Well, we have in evidence an extremely large number of
phone calls made from phones that Lieutenant Commander Penland had
access to to the quarterdeck of USS PRINCETON. I mean obviously
through your testimony and through the testimony of others we know
that that two of you had a relationship, but what about anyone else on
the ship; did she have any other reason to talk to anyone else on the
ship?
A. She did. She was NNOA. There were other, one, two, three,
three officers on board the ship that she spoke to.
Q. Was it a mentor/mentee relationship with them, too, or----
A. I'm pretty sure.
Q. Well, are you sure or not sure?
A. Pretty sure meaning yes.
Q. Who are the three other officers?
A. Lieutenant Singh, Lieutenant----
Q. How do you spell that?
A. Singh, S-I-N-G-H.
Q Okay.
A. ODCA, I can't remember his name. The old AWOL [ph].
That's three right there.
724
Q. What's the name of the old AWOL?
A. I can't remember his name, sir.
Q. Isn't it true that you were present at Lieutenant Commander
Penland's promotion ceremony and pinned on the device onto her collar?
A. That's true.
Q. And when was that ceremony?
A. That was sometime--I think sometime in 2006, summer.
Q. Any idea why she chose you out of all the other people she
could choose?
A. Again it was--it was a mentor/mentee type deal. That's
pretty much it.
Q. San Francisco Fleet Week, we heard testimony from
Lieutenant Commander Moninger that when the USS PRINCETON was in port
in San Francisco, that he met Lieutenant Commander Penland in the
wardroom of the ship. Is that true?
A. That's true.
Q. What was Lieutenant Commander Penland doing on board
USS PRINCETON?
A. She came on board, you know, and NNOA they always, you
know, come on board talking to junior officers.
Q. So when you say NNOA, what are you referring to?
A. National Naval Officer Association.
Q. So she was there in an official capacity representing that
organization?
725
A. I'm not too sure. I know she stopped by and said hello
because she was in the area.
Q. Was she there to see you?
A. I mean, there were a couple of us on the ship, but she said
hello to me and that was it. She left.
Q. You didn't have any other interactions with her in
San Francisco that week?
A. Probably did saw her one or two times, yes.
Q. Where did you see her that week in San Francisco?
A. Out in town.
Q. Say that again.
A. Out in town.
Q. And what involvement did you have with her out in town?
A. I want to say we probably went out together one night and
that's pretty much it or one evening. That's it.
Q. Oh, so you went out to dinner while in San Francisco with
her?
A. Not went out to dinner. It was like a--we were just going
to grab a bite and that's it.
Q. Did you go out afterwards and have drinks or go dancing or
anything like that?
A. No.
Q. Did you stay in the same hotel with her on that visit?
A. No.
726
Q. Are you certain about that?
A. I mean, I'm not sure which one she stayed in. I know which
one I stayed in.
Q. But you didn't--you didn't share a room with her on that
trip?
A. No, I didn't.
Q. To your knowledge has anyone referred to you as Lieutenant
Commander Penland's boyfriend?
A. They shouldn't.
Q. Well, the question wasn't whether they should or shouldn't
have. The question is to your knowledge has anyone ever done that?
A. No, not to my knowledge.
Q. So if we were to hear testimony here at this court that
Lieutenant Commander Penland had referred to you as her boyfriend on
several occasions, those people would be lying or are you just not
aware of it?
A. I'm not aware.
Q. Why would--why would Lieutenant Commander Penland believe
that you were her boyfriend?
A. She shouldn't believe that and I don't think she believed
that.
Q. So if she were to represent that, that would not be
accurate?
A. Correct.
727
Q. I want to finish up with just a couple more photos that we
talked about. These are from the same group of photos and I neglected
to show these before. I'm showing what is marked P-11 [Photo P-11 of
PE 2 was electronically published to the members and witness] and you
were fairly adamant before that you--well, with respect to your penis,
you weren't really sure if it was yours or not. This photo here, do
you recognize that person to be you in that photo?
A. No, not really. It's hard to tell.
Q. So that is it your testimony here today whether--what is
your testimony here today; is that or is that not you in that
photograph?
A. I don't know. I took some pictures of my wife. I'm not
too sure. I don't know.
Q. So you don't recall anyone ever taking a photo of you? It
looks like you're kissing or doing something to someone's breasts.
You just can't recall that incident at all?
A. I said me and my wife took some pictures. That's it.
Q. How often did you and your wife take pictures of each other
while having sex?
A. Not often. It was just one night I was intoxicated and
don't remember much of the incident.
Q. Was it the same time you took the photo of you naked on the
couch?
A. About the same time.
728
Q. So on one occasion of your entire marriage you took nude
photos of each other, but you can't recall this specific photo?
A. I said I can't recognize it. That's what I said.
Q. And you're certainly familiar with your wife's breasts I
would assume. Are those your wife's breasts in that picture?
A. It looks like it, but I'm not too sure. It's hard to tell;
you know, that's all you're looking at.
Q. So your wife breasts have scars on them?
A. Where's the scars at?
Q. Well, let me show you P-10 [Photo P-10 of PE 2 was
electronically published to the members and witness]. That's another
photo. We get a little better view of your face there. You would
admit that that's you in that photograph, would you not?
A. No, that's still----
Q. So you're just still not sure whether or not that's you?
A. I don't think it's me.
Q. And if it were you, would that be your wife's breasts?
A. Yes, if it were me.
Q. So you can see there part of a face and you can see the
full breasts and you can see the scar below, and that's pretty easy
from there to make a definitive identification of who that person is
if you're familiar with their body. Is that or is that not your wife
in that photo?
A. I'm not too sure. I don't know. Maybe somebody doctored
it. I don't know.
729
Q. So your allegation now is that these photos have been
doctored?
A. I don't know. I don't know where they came from. I'm not
too sure.
Q. Well, let's look at the final photo here. This is P-12.
[Photo P-12 of PE 2 was electronically published to the members and
witness.] And what I find significant about this photo is on the
upper left arm you can see----
IMC: Objection. He's not asking a question, he's testifying.
TC: I'll get to my question, sir.
MJ: Please do.
Q. On the upper left arm above the bicep there's a mark there
and maybe it would help you if I show you the actual original [handing
exhibit to witness]. Does that help or can you see adequately on the
video screen there?
A. Yeah, I remember the other day when we spoke----
Q. Is that your arm?
A. I remember saying that to you that it could have been my
arm that day. I'm not too sure.
Q. Well, do you remember in the interview I showed you this
photo. I asked you about it. You weren't sure. Then I asked you to
roll up your left sleeve----
A. Correct.
Q. ----and then we saw that mark there and you agreed, yes,
that is me in the photo?
730
A. Actually after I rolled up my sleeve and I'm looking at it
now, that mark is not there.
TC: Sir, at this time I'd ask that the witness be instructed to
step down from the stand, roll up his left sleeve and show the members
his upper left arm for purposes of identification.
MJ: Very well. If you would please describe for the record the
activities that are being depicted here in court.
TC: Yes, sir. Lieutenant JG Wiggan, if you could please step
down, walk over to the members here, folding up your left sleeve so
they can clearly see your arm and I will describe what you're doing.
[The witness approached the members's box.]
TC: Let the record reflect that the witness is lifting up his
shirt and he's now--lift it up so they can see the mark there. He is
now showing his left arm to the members.
[The witness displayed his left upper arm to the members.]
TC: Thank you. You can return to your seat.
IMC: Sir, actually if I may.
MJ: Can you show it to defense counsel, as well.
IMC: Defense counsel----
TC: Oh, I'm sorry.
IMC: ----hasn't seen the left arm.
TC: Lieutenant JG Wiggan, could you please come over and show
the defense counsel.
[The witness approached defense table and displayed his left upper
arm.]
731
MJ: And that was done. You may resume your seat, Lieutenant.
[The witness resumed the witness stand.]
TC: Thank you, sir.
Q. So, Lieutenant Wiggan, is it still your testimony here
today that you're unsure whether or not that's you in that photograph?
A. Correct.
Q. And who's that person--the other person in the photograph,
do you have any idea?
A. No.
TC: Thank you. I have no further questions.
MJ: Redirect?
IMC: Please, Your Honor.
MJ: Very well.
IMC: Thank you.
REDIRECT EXAMINATION
Questions by the individual military counsel:
Q. Lieutenant Wiggan, you testified that when you and your
wife took photographs of the two of you engaging in sexual relations
together that there was alcohol involved.
A. Yes.
Q. How much alcohol had you had to drink?
A. It was a lot. I'm not too sure.
Q. Were you drunk?
A. Yes.
732
Q. Did you go back and view those pictures at some other date
after you took them when you were sober?
A. It really was just a one time thing.
Q. And if I can also clarify on the pictures, your testimony
is that some of those pictures that you were shown may have come from
Lieutenant Commander Penland's camera, correct?
A. Could have.
Q. And that some of those pictures, if they--if any of those
pictures are, in fact, of you and your wife, those pictures did not
come from Lieutenant Commander Penland's camera?
A. Yes.
Q. And your testimony is that you were shown those pictures on
your wife's computer and your wife would have put them on her
computer?
A. Correct.
Q. Does Lieutenant Commander Penland, from the times you've
passed at her house, does she have a lot of furniture and knick knacks
and such in her house?
A. I think so. I'm not sure.
Q. And those two photographs of those houses you were shown--
or the rooms you were shown by Commander Messer, did you recognize
that furniture as furniture that had been in her house?
A. No.
733
Q. Now, you testified that your wife had made numerous
allegations you've had affairs before. Did some of those allegations
occur while you were on the PRINCETON?
A. Yes.
Q. Do you know of any specific instances of your wife using
your e-mail account pretending to be you and e-mailing other women?
A. Yes. Sent e-mail to my lawyer. What she did was she used
our home account and she e-mailed this lady named Trish. I'm not too
sure what she was trying to do, and tried to arrange for like a
meeting or something.
Q. And in that e-mail she pretended to be you?
A. Yes.
Q. And she, from having been married to you, did she know your
e-mail accounts?
A. Of course, because with passwords we share a lot of
passwords. She knew of--I'm pretty sure she knew of the--you know,
what my passwords would be.
Q. Now, if I can draw your attention to the NNOA. That stands
for the--what does that stand for?
A. National Naval Officers Association.
Q. And what is--what exactly is the NNOA?
A. It's minority officers that try to mentor, you know, junior
officers like myself.
734
Q. And would it be unusual for a more senior officer in the
NNOA to have multiple junior officers on board a ship that that more
senior officer would be involved with professional and mentor?
A. Correct.
Q. And your testimony is that there were several officers on
board the PRINCETON that Commander Penland was involved with through
the NNOA?
A. Correct.
Q. How often was the PRINCETON out to sea in the summer/fall
of 2006?
A. I would say a lot.
Q. If I could turn your attention to the restaurant, I believe
it's Island Spice----
A. Correct.
Q. ----where you and your wife went. Where is that restaurant
located?
A. Market Street over by Navy Fed.
Q. Is that a common restaurant for Sailors to eat at?
A. Correct.
Q. Did you invite Commander Penland to that restaurant?
A. No, I didn't.
Q. Was she with anybody else at that restaurant when you saw
her?
A. I'm not too sure because I saw her quick.
735
Q. But you--and you--did you go there to meet her at that
restaurant?
A. No.
Q. During the time that you have known Commander Penland, have
you seen her out dating other men?
A. [No audible response.]
Q. Are you aware of her having any romantic interests in other
men?
A. I'm not too sure. I'm pretty sure she has her own private
life.
IMC: Thank you. I have no further questions.
Thank you, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Just real quickly.
RECROSS-EXAMINATION
Questions by the trial counsel:
Q. On the [email protected] account did your wife have the
password to that account?
A. Probably did.
Q. Probably. So you don't know for certain one way or the
other?
A. I'm assuming she did. There's a lot of stuff she hacked
into from----
736
Q. Well, how would she hack into the account? Is she a
computer expert?
A. No. It's real simple if you know someone's thought process
and you know what kind of passwords they use, it's pretty much easy to
like figure them out.
Q. So it's your testimony here today that you actually never
told her the password to the account, you just presume that she
guessed your password?
A. Well, she guessed a lot of stuff, so.
Q. What was the password to that Baja account? It's now
expired, correct? What was the password to that account?
A. It's been a while.
Q. So you don't even remember?
A. It was simple, something simple like her first name and
my--and her last four. I don't think I need to repeat somebody's last
four inside here.
Q. Well, that's fine. But it was your wife's name and her
last four digits of her Social Security number?
A. Correct.
TC: Thank you. No further questions, sir.
MJ: Captain Callahan?
IMC: Briefly, sir.
[END OF PAGE]
737
REDIRECT EXAMINATION
Questions by the individual military counsel:
Q. Lieutenant JG Wiggan, you haven't been charged with
adultery, have you?
A. No.
Q. You've been----
TC: Sir, this is outside the scope of recross.
MJ: Captain Callahan?
IMC: That's all I had, sir. Thank you.
MJ: Very well. Lieutenant Commander Messer, anything further?
TC: Nothing, sir.
MJ: Questions from our witness--for our witness from our
members? Commander Good and Commander Galvez. Negative response from
the other members.
And, Bailiff, if you provide the questions to our court
reporter, she will mark them and then if you would take those to our
trial counsel and defense counsel for their review.
BAILIFF: Yes, sir.
[Questions from CDR Galvez and CDR Good were marked as AE XLIV through
XLVI and handed to trial counsel.]
MJ: And let the record reflect that the questions are being
provided to counsel for their review.
[The members' questions were inspected by counsel for both sides, and
handed to the military judge for questioning.]
738
EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q. A question from Appellate Exhibit XLIV: Lieutenant JG
Wiggan, have you received a copy of your final divorce decree from the
appropriate court, San Diego County?
A. My--my lawyer has that, sir.
Q. Questions from Appellate Exhibit XLV: Lieutenant JG
Wiggan, you testified that Lieutenant Commander Penland's visit aboard
PRINCETON while in port San Francisco was related to the NNOA
discussions with junior officers. Was there an NNOA conference or
convention ongoing in San Francisco at the time?
A. Not to my knowledge; I can't recall.
Q. Do you know what business brought Lieutenant Commander
Penland to San Francisco?
A. It could have been the ship was in the area and she just
stopped by and said hello to us; I don't know.
Q. Questions from Appellate Exhibit XLVI: Lieutenant JG
Wiggan, in your testimony you indicated that during the period in
question you had several altercations with your wife in which "she
scratched me up," to include visible wounds on your head.
Question: Did you ever register a complaint about this
with police or military authorities?
A. I told my XO about it that we had a couple altercations.
When I spoke to my lawyer about it, he said "Basically you need to
stay away from the house because if she had called the police, they
739
would have came in and they would have locked you up." So that was
his advice.
Q. I think you may have answered the second part of the
question, but I'll ask it anyway. You may want to expand your answer.
Did you discuss these visible wounds with your chain of command aboard
PRINCETON, for instance, to your Chief Engineer, Lieutenant Commander
Murphy, or the XO, Lieutenant Commander Moninger?
A. To the XO, I mainly stay in contact with the XO because it
was embarrassing as it was.
MJ: Follow-on questions in light of these? Commander Messer?
TC: Yes, sir.
RECROSS-EXAMINATION
Questions by the trial counsel:
Q. Just exactly--when exactly did you address that with the
XO?
A. I addressed that with the XO, I think it was in early 2007
or late 2006, and it was ongoing complaints to the XO saying I'm
having problems.
Q. Well, was your conversation that you were just having
problems with your wife or was it specifically that you had been
scratched by your wife?
A. Problems in general meaning everything.
Q. So did you ever discuss the injuries that you had talked
about earlier with the XO?
A. Pretty sure I did.
740
Q. So on multiple occasions?
A. Multiple occasions I was talking to him for guidance and
counsel for stuff she was doing to me, trying to get more money out of
me and so forth.
Q. So if we call Lieutenant Commander Moninger back as a
witness, he'll be able to confirm that on several occasions you
discussed the scratches and injuries caused by the wife?
A. If he can recall. There was some time he told me just keep
your stuff off the ship and just listen to my lawyer, and that's what
I did.
TC: Okay. Thank you.
MJ: Captain Callahan?
IMC: No. Thank you, Your Honor.
MJ: Follow-on questions from our members? Affirmative response
from Captain Booker.
And I will return Appellate Exhibits XLIV, XLV and XLVI for
our court--to our court reporter for inclusion in the record.
And again, if you would please have the next question
marked by our court reporter.
[The question from CAPT Booker was marked as AE XLVII, inspected by
counsel for both sides, and handed to the military judge for
questioning.]
MJ: Let the record reflect that counsel for both sides have had
an opportunity to review the question, which has been marked Appellate
Exhibit XLVII.
741
EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q. Lieutenant JG Wiggan, did you provide photos to your
attorney or XO, before deleting from your laptop, showing your
injuries?
A. I think I may have shown my attorney, Steve, the photos.
And based on the conversation with--what he said was "Hey, you're kind
of lucky. If the cops had gotten called, you'd have been the one
going to jail." I think I kind of like dropped the issue right then.
Because between--the story was pretty much consistent between my XO
and my lawyer. They said "You being the bigger person, they're not
going to believe your story. So just stay away from the house," and
that's pretty much it.
MJ: Follow-on questions in light of those, Captain Callahan?
IMC: May I have a moment, sir?
MJ: Certainly.
REDIRECT EXAMINATION
Questions by the individual military counsel:
Q. Lieutenant Wiggan, is it--from your experience in the Navy
is it standard practice, when there are issues going on between a
husband and a wife, that the individuals would be told to basically
handle it on their own and just don't let it come onto the ship and
interfere with them at work?
TC: Sir, I object to that question. It's outside the scope of
the previous question.
742
MJ: Overruled. If you have an answer, Lieutenant, you can
provide it.
WIT: I'm not too sure how to answer that, but I would tell
anyone that if you're having marital issues, try to keep it off the
ship. Basically that's what I was told. When I went over to NLSO
back in the summer of '06, that's the advice they gave me. They said
hurry up and get the proceedings going and so forth and try to keep it
off--keep it from work.
IMC: Thank you.
Thank you, Your Honor.
MJ: Lieutenant Commander Messer?
RECROSS-EXAMINATION
Questions by the trial counsel:
Q. Lieutenant, I don't think you were clear in your response.
Did you ever show photos to the XO?
A. I know I told him about the photos.
Q. Did you show him the photos, yes or no?
A. I'm not too sure. I don't think so.
TC: Nothing further, sir.
MJ: Captain Callahan?
IMC: No. Thank you, Your Honor.
MJ: Follow-on questions from our members? Negative response
from all panel members.
[The witness was duly warned, temporarily excused, and withdrew from
the courtroom.]
743
MJ: Members, this would be an appropriate time for a lunch
recess, as I promised you it would come late today. I also anticipate
that we may have a rather late session this evening, so please plan
accordingly. If you need to bring in extra food, you are welcome to
do that, although I do also anticipate there will be a dinner recess
at some point so I can discuss issues with the counsel outside your
presence, so there probably will be an additional opportunity to go
procure some food.
Subject to my standard instructions, members, if you would
please cover your notes, you may depart on a lunch recess. I would
ask that you return at 1430 hours.
BAILIFF: All rise.
[All persons did as directed.]
MJ: Court stands in lunch recess. The members may depart.
[The members withdrew from the courtroom.]
MJ: Carry on. Court stands in lunch recess.
[The court-martial recessed at 1338 hours, 23 May 2008.]
[The court-martial was called to order at 1437 hours, 23 May 2008.]
MJ: Bailiff, please ask the members to join the court.
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: The court is called back to order.
Let the record reflect that all parties present prior to
744
the lunch recess are again present before the Court at this time, to
include all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Captain Callahan, does the Defense have additional evidence
it would like to offer the members at this time?
IMC: Yes, sir. Sir, the Defense calls Commander Milner to the
stand.
MJ: Very well. Bailiff, if you would please call Commander
Milner.
[The bailiff retrieved the witness.]
COMMANDER LARRY D. MILNER, U.S. Navy, was called as a witness for the
defense, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. For the record, Commander, can you please state your full
name, spelling your last.
A. Larry Donald Milner. The spelling of the last name is
M-I-L-N-E-R.
Q. And, sir, what is your current duty station?
A. Right now I'm the current operations officer at JUSMAGTHAI;
that's Joint U.S. Military Affairs Group Thailand.
TC: Thank you, sir.
MJ: Captain Callahan, questions for the witness.
IMC: Thank you, Your Honor.
745
Questions by the individual military counsel:
Q. Good afternoon, sir.
A. Good afternoon.
Q. Sir, how long have you been in the Navy?
A. I've been in the Navy roughly about 31 years.
Q. And can you please give the members a brief overview of
your time in the Navy.
A. I enlisted in the Navy on May the 8th, 1973. I was
commissioned in '76, did a combination of reserve time and active duty
time accumulating to 31 years.
Q. And what are some of the more recent billets you've had
over your last couple duty stations?
A. I was the--well, right now I'm at JUSMAGTHAI, the current
Operations Officer there. Before that, I was at the Defense Language
Institution up in Monterey. Before that, I was at the Navy War
College. Before that, I was in CNFK in Korea. Before that, I was XO
at FTCPAC.
Q. And over the course of your career, approximately how many
Sailors have worked for you?
A. Approximately 500, 600.
Q. And approximately how many officers have you had work for
you over the course of your career?
A. Probably be about 25, 30.
Q. And do you know Lieutenant Commander Penland?
A. Yes, I do.
746
Q. When did you first meet her?
A. I met Commander Penland in 2002, August of 2002, I believe.
Q. And what was your billet at the time?
A. At that particular time I was the current Operations
Officer at CNFK.
Q. And how did you meet Commander Penland?
A. She reported on board the command the same time I did.
Q. What was her billet at the time, sir?
A. My billet there was----
Q. Whoa. I'm sorry. What was her billet at the time, sir,
when she checked in and worked with you?
A. Well, she--she worked in the Supply Department there.
Q. And approximately how much interaction would you have with
her on a weekly basis?
A. I interacted with her probably on a daily basis actually.
Q. And during the course of your interaction with her, did you
have an opportunity to observe her work?
A. Yes.
Q. And did you have an opportunity to observe her character?
A. Yes. She actually--she--in my job as current Operations
Officer, she worked for me directly when she stood watch in watch
center.
Q. Have you had an opportunity to observe her leadership?
A. Yes.
747
Q. What type of things do you consider when you evaluate the
military character of an officer in the Navy?
A. A lot of things. Honesty, truthfulness, professionalism,
adherence to the Navy core values and I don't know if I can say this,
but, you know, in her belief in a higher being, God. That's those
things that I use.
Q. Based on your observations of Lieutenant Commander Penland,
were you able to form an opinion as to her military character?
A. Yes.
Q. And what is your opinion of her military character?
A. I think that Commander Penland's military character is
outstanding; I truly do.
IMC: Thank you, sir.
No further questions, Your Honor.
MJ: Lieutenant Commander Messer.
TC: Yes, sir.
CROSS-EXAMINATION
Questions by the trial counsel:
Q. Commander, you just testified that Commander Penland has
outstanding military character. You're basing that opinion off your
observations of--from when you worked with her; is that correct?
A. Yes.
Q. And when was the--when did--when was the last time you
worked together?
A. 2003.
748
Q. So have you based any of your opinion off of your
observations of her since 2003?
A. Yes, because Commander Penland and I, we were friends and
I've talked with her many, many occasions over the years on a
professional level concerning professional matters. So my opinion of
Commander Penland--and we attended--she mentioned--someone mentioned
the NNOA conference; we attended those conferences a couple of times
together. And so my opinion is not based solely on, you know, her
conduct five years ago. Yes, I believe she left CNFK 2003, maybe
early 2004; I don't remember exactly when. But we worked together.
So it's not based solely on that.
Q. Well, let's explore that a little bit, sir. So since you
left the command you were both at, what type of interaction have you
had with her, like once a month, a couple times a year; how many times
did you talk to her since then?
A. Well, I'll tell you here over the last year and a half
probably on a weekly basis and----
Q. So--I'm sorry. Continue, sir.
A. Okay. And then before that, maybe on a monthly basis. And
before that, maybe every three months or something like that.
Q. So it's safe to say when these allegations that have formed
into this court-martial here today, those allegations surfaced about a
year and a half ago, two years ago, that's when you started talking
more with her?
749
A. I think it was pretty much about the same, but, you know,
yeah, pretty much about the same, but--no. I'll agree with you. It
was more since these allegations occurred.
Q. And do you often discuss these allegations, the issues
surrounding this trial with her?
A. Well, I know about her issues. I'm not an attorney and so
I don't--I tell her, "You need to talk to your attorney. You know,
that's the guy that's trained, and I'm a Surface Warfare Officer." So
I never talk to her about that. She just told me things in general.
I know about some of--of a lot of her issues with the
command there because I got a phone call from her one day and she asks
me, she says, "You know, I filed an EEO complaint." And I said,
"Okay," and I said, "What's that all about?" And she told me
basically what it was about and she said, "But I have--I want you to
do something for me" and I asked her what, and she told me would I be
her advocate and I said, "Well, I don't know what an advocate does."
I said "If you've got an instruction that I can read and that tells me
what I'm supposed to do, and I'm more than willing to help you with
that."
Q. That was kind of what I was trying to get to. So over the
course of the last couple years you've moved on from just being, you
know, a person that worked with her to almost a confidant, you've
acted as her advocate?
A. I've acted as her advocate and as a mentor, you know, both.
750
Q. So it's fair to say that your--what was once a professional
relationship has grown into also a personal relationship?
A. No. It goes--you know, well, let me tell you something. I
think one of the things that--you know, every conversation that I've
had with her, okay, it has been 100 percent professional. She has
never in the time that I've known her called me by my first name,
never have been nothing but 100 percent totally professional, 100
percent. Never been out of line, never said anything out of line to
me.
Q. Do you get together with Lieutenant Commander Penland
outside of the work environment? Have you had dinner with her on
occasion?
A. No.
Q. Have you ever invited her over to your house to have
dinner?
A. No.
Q. So, in your opinion, it is just a strictly professional
relationship?
A. Yeah, I would say it's a professional mentoring type
relationship. And like you said, you know, I was her advocate,
confidant. You know, I would like to look at it as a little bit more
than a professional relationship, you know, junior to senior. I look
at it more like--it was more like, hey, I can call Commander Milner
and ask for his best advice on a particular professional issue, and
she has done that and I did my best to help her.
751
Q. And as her advocate for the equal opportunity complaint,
you're aware that that complaint was looked into by a Captain Riley,
is that right?
A. Actually I sat with Commander Penland and Captain Riley
during the interview.
Q. Have you had a chance to review the report Captain Riley
wrote on that complaint?
A. Actually, to be perfectly honest with you, I did; and when
I read Captain Riley's complaint--I mean her opinion, yeah, her
report, at first I was very, very disturbed. I called Commander
Penland up and I said "I don't believe this. What's going on here?"
She came down and she went line item by line item with me. But, see,
the thing----
Q. When you say--I'm sorry to interrupt you, sir. When you
say "she," are you referring to Commander Penland or Captain Riley?
A. I'm saying Commander Penland. But, see, the thing of it is
is that, you know, is since you--I don't think when I sat there--I
don't think that Captain Riley--first of all, Captain Riley called me
on the phone and she said "Commander Milner, can you help me out." I
said "Who am I speaking with?" And she said "Captain Riley." I said,
"Well, who are you?" And she says "I'm somebody they sent from the
East Coast"----
Q. I'm sorry, sir. Continue.
A. She said she was someone that they sent from the East Coast
to investigate a complaint that Commander Penland had filed and
752
Commander Penland was refusing to talk with her because she felt that
there was some procedural type error, and so she asked--she explained
to me and I can't remember exactly what it was, but I agreed with
Captain Riley and I said, "Okay, I'll talk with Commander Penland,"
and I talked with her and I recommended to her that she participate in
that interview----
Q. Uh-huh.
A. ----and she did that. But during the interview, you know,
I hear this thing from Commander Penland, you know, about this. Like
I said, I'm not an attorney. I don't know what undue command
influence is, what the legal definition of those things are. But I
know that--and excuse--well, but I know that there's a couple things
that happen during the interview and after the interview that
disturbed me, you know, and, you know, Captain Riley----
Q. Sir, I'm just going to stop you there because my
questioning is not so much----
A. Well----
Q. My question was were you aware of the outcome of the report
which is that all the people named in it were--it was unsubstantiated.
You're aware of that?
A. I see. No, I'm not aware of the----
Q. Well, you said you had reviewed the report.
A. No. I--no. I seen her--no. I seen her report.
Q. Did you read Captain Riley's report?
A. Yeah, I read Captain Riley's report.
753
Q. And Captain Riley's report goes into great detail and I
believe there's over 10 different people that were named in Commander
Penland's report and she--isn't it true that she finds that all those
claims are unsubstantiated? Not one equal opportunity claim was
substantiated, is that correct?
A. Well, see, I don't remember that. I remember reading her
report. Okay.
Q. Well, what was it about the report you didn't like, the
fact that none of it was substantiated?
A. Well, first, I thought that Commander--the reason why I
called her was, you know, I--is because I thought that she had not
been truthful with me and I said, well--and so she came over and we
went through it and it was totally, in my opinion, biased and, like I
said, I sat in the interview and I don't think that Captain Riley gave
her a fair shake.
You know, Commander Penland's attorney, one of the
attorneys that she had in this case was--she named him in her
complaint and based on the fact--my understanding is that based on the
fact that he was named in the complaint he was kicked off the case.
She couldn't--you know, they were having problems already, but she
could not go back to him and say will you help me. He told me, he
said, because he was named in this complaint, he could not deal with
her anymore.
There was a lot of individuals that were named in that
complaint, okay, tons of them, and all those people that were named in
754
that complaint could not deal with----
Q. Do you remember off the top of your head how many people
she had filed equal opportunity----
A. Probably about eight or nine. But the strangest thing is
is that Captain Riley--I asked Captain Riley about that particular
issue, about this attorney not being able to even talk with her and
she explained that to me. And I said, "Well, thank you, Captain."
And then she turned around and said, "Well, what about this Commander
Marshall?" I said, "Why is she allowed to remain in a position that
directly influences the outcome of this case?" And Commander Penland
had named her in her complaint. And that was kind of disturbing to me
because----
Q. Well, you understand that Commander Marshall is the lawyer
to the command and the defense counsel is the lawyer to Lieutenant
Commander Penland; do you see a difference there?
A. Yeah. But you don't have to explain that to me.
Q. Let me ask you the ultimate question. Did you feel that
Captain Riley's report was biased?
A. Yes, I did. I sat there during the interview, the entire
interview, all four hours of it.
Q. Now, you're also aware that the equal opportunity
allegations by Commander Penland were filed after she was given NJP
charges, are you aware of that?
A. I don't know when she filed, but I know that she had talked
with me before about her issues there before this thing, this NJP
755
stuff came up. I know that factually, yes.
Q. Now, sir, you testified that the things that you find
important in a Naval officer are honesty, trustworthiness or
truthfulness, the Navy core values. Do you believe somehow who--and
this is a hypothetical. If someone, an officer, were to send nude
photos to an enlisted person, albeit nude photos of their husband, do
you think that's proper conduct for an officer?
A. Did she do that?
Q. Sir, that's the allegation that is before this court. I've
asked you a hypothetical question.
A. Well, see, that hadn't been proven. You know, I--there was
nothing there that convinced me that----
Q. It's a hypothetical question, sir. Can you answer the
question.
A. If she--if anybody did that, that wouldn't be a good thing
to do, no.
Q. And what about calling the spouse of another person and
trying to influence them to divorce their spouse through sending them
photos or telling them that their spouse was being unfaithful, is that
conduct that would becoming of an officer in your opinion?
A. If that's what the phone calls were made for, I agree.
TC: Thank you, sir. I have no further questions.
MJ: Captain Callahan, redirect?
IMC: May I have a moment, Your Honor?
MJ: Certainly.
756
IMC: No. Thank you, Your Honor.
MJ: Questions from our members? Negative response from all
panel members.
Does either side desire the witness subject to recall for
purposes of this trial?
IMC: May I have a moment again, please, Your Honor?
MJ: You certainly may.
IMC: If I may be permitted to briefly----
MJ: Certainly.
IMC: Thank you, sir.
REDIRECT EXAMINATION
Questions by the individual military counsel:
Q. Commander Milner, to your knowledge have the equal
opportunity complaints been fully resolved or are they still pending
appeal?
A. I believe that they're still pending appeal. That's what I
believe.
IMC: Thank you, sir.
Nothing further, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Nothing from the Government, sir.
MJ: Questions from the members? Negative response from all
panel members.
[The witness was duly warned, temporarily excused and remained in the
courtroom.]
757
MJ: Further evidence from the Defense on the merits of this
case?
IMC: Sir, Defense calls Captain Johnson.
MJ: Very good. Bailiff, if you would please call the witness
on behalf of the court.
[The bailiff retrieved the witness.]
CAPTAIN MICHAEL H. JOHNSON, U.S. Navy, was called as a witness for the
defense, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Captain, for the record, could you please state your full
name, spelling your last.
A. Michael H. Johnson, J-O-H-N-S-O-N.
Q. And, Captain, what is your current duty station?
A. Deputy Commander, CTF-53 in Bahrain.
TC: Thank you, sir.
Your witness.
MJ: Captain Callahan.
IMC: Thank you, Your Honor.
Questions by the individual military counsel:
Q. Good afternoon, sir.
A. Good afternoon.
Q. Sir, how long have you been in the Navy for?
A. This June 26 it will be 34 years.
758
Q. And can you please give a brief description of your time in
the Navy to the members.
A. I spent the first 11 years enlisted. I started out on
submarines, went through the LDO program, got commissioned in 1985,
April 1st, and served different commands from that point on.
Q. Have you ever been in command before, sir?
A. Yes.
Q. When and where?
A. Integrated Logistics Overhaul Activity in Portsmouth,
Virginia from 2000 to 2003.
Q. Sir, approximately how many Sailors have you supervised
over the course of your career?
A. Thousands. I couldn't even give you a number.
Q. And approximately how many officers have you supervised
over the course of your career, sir?
A. A couple hundred.
Q. Do you know Lieutenant Commander Penland?
A. Yes.
Q. How do you know her, sir?
A. I met Lieutenant Commander Penland when I was the CO of ILO
around 2001-2002 time frame. We were going through a merger with RMC
in--well, excuse me. At that time it was FTCLANT in Norfolk and they
was absorbing my command. So I started interfacing with the command a
couple years before that actually took place. It happened after--of
course, after I left. And I met Lieutenant Commander Penland--at that
759
time it was Lieutenant Penland. She was serving as Legal Officer
there at FTCLANT.
Q. And approximately how much interaction would you have with
her during that time?
A. Probably weekly, because at the time the XO asked me to see
if I could mentor her because they did not have any other Supply
Officers at FTCLANT and they wanted me to be as a mentor to her, so I
would have weekly interaction with her.
Q. Did you have an opportunity to observe her work while she
was there, sir?
A. Yes.
Q. Did you have an opportunity to observe her character while
she was there?
A. Yes.
Q. Did you have an opportunity to observe her leadership while
she was there?
A. Yes.
Q. What type of things do you consider when you evaluate the
military character of an officer in the Navy, sir?
A. Honesty, to do the right thing regardless of the
circumstances or, you know, when it comes to be--to having to make the
hard call, to make the hard choice. That to me kind of exemplifies
where an officer is going to stand for me and my character reference
to them.
760
Q. Based on your observations of Lieutenant Commander Penland,
were you able to form an opinion as to her military character?
A. Yes.
Q. And what is your opinion of her military character, sir?
A. Thus far I feel it's very strong. She would make the hard
call and some days it was not a popular call, but she would make the
hard call in trying to be the right one.
Q. Sir, are you aware if you were named as a witness to an IG
complaint that she filed?
A. Yes.
Q. Were you ever contacted and thoroughly interviewed as a
result of being a witness on that?
A. I was contacted. Thoroughly interviewed, I would question
that. I was asked in what direct contact I had in regards to the IG
and I did not have anything directly because most of my--actually all
of my contact regarding the IG, the complaint and so forth, was
through Lieutenant Commander Penland. When I explained that to the
investigating officer, she says "Thank you very much. That's hearsay.
No further questions."
IMC: Thank you, sir. I have no further questions.
Thank you, Your Honor.
MJ: Lieutenant Commander Messer.
[END OF PAGE]
761
CROSS-EXAMINATION
Questions by the trial counsel:
Q. Captain, when did--when did you stop acting as a mentor to
Lieutenant Commander Penland, or are you still a mentor to this day?
A. I'm still to this day.
Q. Has your interaction continued to be weekly with her or was
that only when you were--when she was working with you?
A. Only when I was working with her at FTCLANT.
Q. When did that relationship or that arrangement end? When
did she stop working for you or with you?
A. Like I said, around 2003 when I left FTCLANT, went to
Bahrain the first time.
Q. So, sir, you were--you observed her performance from 2001
to 2003 roughly?
A. Roughly there.
Q. And since that time, have you had the opportunity to view
her performance as a Naval officer?
A. Yes, when she was on board I believe the STOUT and I was at
SURFLANT.
Q. And what was your interaction with her during that time?
A. Usually have to deal with her regarding supply related
matters. I was the 412 which took care of all the stock control
issues, anything related to the supply side of the house, not the
services, but supply side of the house I would interface with
Lieutenant Commander Penland.
762
Q. And what was the time frame on that, sir?
A. 2000--oh, boy, when did I get to SURFLANT, 2004 to 2007.
Q. And since the time that you were interacting with her at
SURFLANT, have you had a chance to work with her professionally since
then?
A. Not professionally.
Q. How would you--you obviously have a professional
relationship with her. Would you also say you have a personal
relationship with Lieutenant Commander Penland?
A. Actually mostly that was professional. We don't really
have a personal relationship. Most of our stuff dealt around the job.
Q. Have you ever had Lieutenant Commander Penland over to your
house for dinner or introduced her to your family or anything like
that, sir?
A. I've not had her to dinner, but we have gone out to dinner
at various locations when I was out in San Diego the last time I was
here a year and a half or so ago. About a year ago we went to dinner,
we talked, but----
Q. Yes, sir. And are you aware of the allegations that have
been made against Commander Penland?
A. Yeah, she's made me aware of those.
Q. Would your opinion of her in any way change if she were to
be found guilty of those accusations or those allegations?
A. I'd be very surprised. No, I don't think so.
763
Q. You'd still maintain the same opinion of her?
A. I think so.
TC: Thank you, sir. I have no further questions.
WIT: Yes, sir.
MJ: Redirect?
IMC: No. Thank you, Your Honor.
MJ: Questions from our members? Negative response from all
panel members.
[The witness was duly warned, temporarily excused and withdrew from
the courtroom.]
MJ: Further evidence from the Defense on the merits of this
case? Captain Callahan?
IMC: Yes, sir. Sir, at this time I'd request a five-minute
recess to----
MJ: Very well.
IMC: ----check the availability of the other witnesses that are
lined up, sir.
MJ: Members, if you would please cover your notes. Subject to
my standard instructions, we'll take a recess here. Please reassemble
at quarter after the hour. The members may depart on recess.
BAILIFF: All rise.
[All persons did as directed, and the members withdrew from the
courtroom.]
MJ: Carry on, please. Court is in recess.
[The court-martial recessed at 1506 hours, 23 May 2008.]
764
[The court-martial was called to order at 1521 hours, 23 May 2008.]
MJ: Bailiff, please ask the members to join us.
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: Court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Captain Callahan, additional evidence from the Defense on
the merits of this case?
IMC: Sir, at this time the Defense calls Captain Noel
telephonically.
MJ: Very well.
[Two unsuccessful attempts to reach witness via phone transpired.]
MJ: Captain Callahan, do you have another witness you'd like to
call or would you like to take a recess at this point?
IMC: Can we take a recess because the other witnesses--the other
two witnesses, one is telephonic trying to be reached and the other
one is--that's the one attorney that hasn't showed up yet.
MJ: Very well.
765
TC: Sir, let me try just one more time. I mean we literally
just talked to him two minutes ago. I'm not sure----
MJ: Okay. A (703) number, what, northern Virginia?
TC: (410), sir.
MJ: Oh, (410).
CAPTAIN JACK S. NOEL, II, U.S. Navy, was telephonically called as a
witness for the defense, was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. For the record, could you please state your full name,
spelling your last.
A. Jack Sherm Noel, II, N-O-E-L.
Q. Thank you, sir. And what is your current duty station?
A. Project manager at the Missile Defense Agency.
TC: Thank you, sir. I'm now going to turn you over to Captain
Callahan who has some questions for you.
WIT: Okay.
Questions by the individual military counsel:
Q. Good afternoon, sir. Captain Callahan speaking. Can you
hear me?
A. I sure can.
Q. Sir, how long have you been in the Navy for?
A. Let's see, 20--23 years commissioned service, one year
enlisted, four years at the Naval Academy, so July 17, 1980 I
enlisted.
766
Q. And can you please give a brief biographical description of
your time in the Navy.
A. I have a year of enlisted service at--well, I was in Naval
Academy Prep School, four years at the Naval Academy and now my first
duty station was USS JUNO out of San Diego. I'm a Surface Warfare
Officer. My second duty station was USS VINCENNES, and went to Naval
Postgraduate School after that. On to department head tours, the
first department head tour on JOHN HANCOCK, a destroyer out of
Mayport, Florida; second at Destroyer Squadron SIX in Pascagoula,
Mississippi; and then to XO tour, USS MOOSBRUGGER out of Mayport,
Florida; and then Navy staff on N86 Surface Warfare Division; and then
to command DDG CREW SIERRA out of Norfolk; Industrial College of the
Armed Forces after that; and to my present duty station, Missile
Defense Agency.
Q. Sir, approximately how many Sailors have you supervised in
your career?
A. Oh, I'd say between a thousand and 1500.
Q. Approximately how many officers have you supervised, sir?
A. Between a hundred and a hundred and fifty.
Q. Sir, do you know Lieutenant Commander Penland?
A. I do.
Q. How do you know her, sir?
A. She was my Supply Officer in DDG CREW SIERRA.
Q. And how long was she your Supply Officer for, sir?
A. Just about two years, a month shy of two years.
767
Q. And when was that, sir?
A. That was--I reported in February of 2004 and that she left
in January of 2006.
Q. And approximately how much interaction would you have with
her on a daily basis, sir?
A. Once, twice daily minimum.
Q. Did you have an opportunity to observe her work, sir?
A. I did.
Q. Did you have an opportunity to observe her character?
A. I did.
Q. Did you have an opportunity to observe her leadership?
A. I did.
Q. And what type of things do you consider when you evaluate
the military character of an officer in the Navy, sir?
A. Well, professional competence, leadership ability,
leadership by example, whether or not they take care of their troops,
their Sailors.
Q. Sir, based on your observations of Lieutenant Commander
Penland were you able to form an opinion as to her military character?
A. I was.
Q. And what is your opinion of her military character?
A. Oh, I think she's a fine officer, outstanding Supply
Officer.
Q. Sir, do you also know a Lieutenant JG Mark Wiggan?
A. I do. He was a Chief when he worked for me.
768
Q. And when was that, sir, that he worked for you?
A. I don't remember exactly when we commissioned him, but he
left the day we commissioned him. He worked for me, well, at least
two cycles. I know he was my number one chief two cycles in a row,
two years in a row.
TC: Sir, sorry. Captain, I'm sorry to interrupt you.
Sir, I'm going to object here in that this is irrelevant as
to Lieutenant JG's--I believe this is going down to what his
performance is as an officer or as a Chief Petty Officer.
MJ: Captain Callahan?
IMC: Sir, I'm laying a foundation to him to testify that in his
opinion Lieutenant JG Wiggan is an honest individual. I believe his
credibility has been attacked here in this court, so this would be an
appropriate line of questioning.
MJ: Very well. You may lay the foundation for that pertinent
character trait.
IMC: Thank you, Your Honor.
MJ: Objection overruled.
Q. Sir, it's Captain Callahan again. Can you hear me?
A. I can.
Q. Sir, approximately how much interaction would you have with
then Chief Wiggan on a daily basis?
A. I saw him at least daily. I spent a lot of time in
Engineering, so at least daily.
769
Q. Did you get to know him well enough to form an opinion as
to whether or not he's an honest Sailor?
A. I did.
Q. And what is your opinion of his character trait for
honesty, sir?
A. I think he was very honest. As I stated, he was my number
one Chief of, I don't know, between 30 and 35 Chiefs on board two
years in a row. So specifically to honesty, I wouldn't have made him
number one if I thought he was a dishonest person.
Q. Yes, sir. Sir, when you were Lieutenant Commander
Penland's Commanding Officer, did she ever raise any issues with you
dealing with things such as harassment or discrimination?
A. No.
Q. Are you aware of her filing any formal complaints or
harassment or discrimination from the time she served with you?
A. I'm not.
Q. Sir, are you familiar with the NNOA, the National Naval
Officer Association?
A. Yeah. You know, I know of it, not really any details.
Q. Are you familiar with any interaction Lieutenant Commander
Penland had with that organization?
A. No, I'm not.
IMC: Thank you, sir. I have no further questions for you. The
trial counsel, Commander Messer, may have some questions for you.
WIT: Okay.
770
MJ: Lieutenant Commander Messer, questions for the witness?
TC: Yes, sir. Thank you.
CROSS-EXAMINATION
Questions by the trial counsel:
Q. Captain, you testified that you knew Lieutenant Commander
Penland from 2004 to 2006. What interactions have you had with her
since January of 2006?
A. I've spoken to her on the phone maybe once a quarter; you
know, we've kept in touch in that way, as I have with I think all but
maybe--well, my Chief Engineers haven't really been good at keeping in
touch, but I've kept in touch with all my other department heads.
Q. And, sir, have you had an opportunity to discuss the
charges pending against Lieutenant Commander Penland at this court-
martial with Lieutenant Commander Penland?
A. Yeah, I have. I wouldn't say with any great detail, but
we--she brought to my attention--well, she was concerned about it and
called me, you know, as a mentor, at least a year ago when I guess
things first started to bubble to the surface on that.
Q. What did she tell you the nature of the charges were?
A. She told me that she was being charged with adultery and
she told me that there were some pictures on the camera that she had
loaned to Lieutenant Wiggan and she also told me about some--about
some issues at the command that had to do with improper contracting
practices or things of that nature and that she frankly had made us--
when I say "us," my command--aware of almost immediately after
771
reporting to that command I have to say. I remember a month after she
left the ship we were getting ready to actually leave the Gulf and she
had called my Master Chief while I was sitting next to him in the car
and was concerned about those issues.
Q. Did she tell you about any of the other charges that are
pending against her at the court-martial, sir?
A. The adultery is the only one I'm really aware of, although
I have read--well, I have read the Navy Times article on line, so I
know that----
MJ: Let's stop that, please.
WIT: ----there's inappropriate conduct and----
MJ: Let's stop there.
WIT: ----conduct unbecoming.
TC: Sir, please stop that issue. That is not to be discussed.
Sir, do you want to, at this----
WIT: She has not----
TC: Sir, could you please hold on one moment. I'm sorry to
interrupt.
WIT: All right.
TC: The Government would ask to give a limiting instruction at
this time to the members.
MJ: Very well. Members, please disregard any reference to any
articles or reports concerning this case in the media.
Will the members be able to follow this instruction?
Affirmative response from all members. Thank you.
772
And if you would please instruct the witness not to go back
in that area, please.
Q. Sir, did you hear the judge's comments?
A. I've got it.
Q. Sir, you obviously have a long and successful career and
you have a lot of experience dealing with both junior officers and
junior enlisted. If you had one of your subordinates lie to you,
would that change your opinion of their character?
A. It would.
Q. And if you were to learn that one--an officer that worked
for you was inappropriately communicating or talking to an enlisted
Sailor about personal type matters, would you find that conduct
unbecoming of an officer?
A. In the same command?
Q. Well, I guess I was very vague there, sir. I guess if one
of your members were to be found to be making inappropriate
communications to an enlisted Sailor of another command, is that
something that would concern you?
A. I think I'd have to ask you at this point what you mean by
inappropriate, because, you know, I don't think that communications
between an officer in one command and an enlisted person in another
command in and of itself is inappropriate.
Q. Yes, sir. I probably wasn't specific enough. In this
case, Lieutenant Commander Penland is alleged to have sent two nude
photos of Lieutenant JG Mark Wiggan, naked with an erection, to his
773
wife, NC1 Lewis-Wiggan. If that were to be found to be true, would
that change your opinion of Lieutenant Commander Penland?
A. Yeah. I think if that were true and I had knowledge that I
guess, you know, that those photographs or whatever, the e-mail or
whatever it was true, I think that, you know, I'd have to reassess my
evaluation of Lieutenant Commander Penland. I don't know how you
prove that this day and age.
Q. We're working on it.
A. And I personally have seen photographs of Osama bin Laden
riding a Tomahawk.
Q. Yes, sir. Well, that's why we're having this court-
martial, to determine that and, no, Osama bin Laden is not here.
And if Lieutenant Commander Penland were found to have lied
to a senior officer, telling him that she did not call someone when,
in fact, she actually did, would that change your opinion of her
character?
A. Well, I think if I were lied to, then I would certainly,
you know, trust that person less. I would probably evaluate the
circumstances involved, but, you know, I'd look twice before I
believed anything that person said again.
TC: Thank you, sir. I have no further questions.
MJ: Captain Callahan, redirect?
IMC: Yes, sir.
MJ: Very well.
774
REDIRECT EXAMINATION
Questions by the individual military counsel:
Q. Sir, during that time that you knew and worked with
Commander Penland, were you able to form an opinion as to her
character for honesty?
A. I thought she was very honest. I thought--I'd say with
regard to supply, in particular, I was--you know, that's an area that
can get a Commanding Officer in trouble and that was one area I was
never concerned with.
IMC: Thank you, sir.
Nothing further, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Nothing further, sir.
MJ: Questions from our members? Negative response from all
panel members.
[The witness was duly warned and temporarily excused telephonically.]
MJ: Counsel, desire a brief recess in place?
IMC: Yes. May we have a brief recess to check on the other
witnesses, sir?
MJ: Very well. Members, please cover your notes. Subject to
my standard instructions, you may depart on a recess. Please
reassemble at quarter to the hour.
BAILIFF: All rise.
[All persons did as directed.]
775
MJ: The members may depart on a recess.
[The members withdrew from the courtroom.]
MJ: Carry on, please.
[The court-martial recessed at 1539 hours, 23 May 2008.]
[The court-martial was called to order at 1552 hours, 23 May 2008.]
MJ: Bailiff, please ask the members to join us then.
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: Court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Captain Callahan, call your next witness, please.
IMC: Sir, the Defense calls Steven Arnold.
MJ: Very well. Bailiff, if you would please call the witness
on behalf of the court.
[The bailiff retrieved the witness.]
[END OF PAGE]
776
STEVEN H. ARNOLD, civilian, was called as a witness for the defense,
was sworn, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Mr. Arnold, if you could, once you're settled in there, for
the record just state your full name, spelling your last.
A. My name is Steven Hernandez Arnold, A-R-N-O-L-D.
Q. And, Mr. Arnold, do you have a business address?
A. I do. It is 1850 Fifth Avenue, Suite A, San Diego,
California 92101.
TC: Thank you, sir.
Your witness.
MJ: Captain Callahan.
IMC: Thank you, Your Honor.
Questions by the individual military counsel:
Q. Good afternoon, sir.
A. Thank you.
Q. Sir, do you know a Lieutenant Junior Grade Mark Wiggan?
A. Yes, I do.
Q. How do you know him?
A. He's been a dissolution client of mine for quite some time.
Q. And what is the status of his marriage?
A. As of today he is divorced legally. He's a single person.
So is Kim Wiggan. The property division is set for a settlement
conference in two weeks. There's good faith efforts to settle what's
777
left of property. I'm anticipating helping with her counsel that we
actually settle outside of court before we even get to the conference
in June.
Q. And, sir, when was the marriage, in fact, bifurcated, the
dissolution proceedings?
A. The bifurcation was entered with the court on December the
6th, 2007.
Q. And can you just briefly explain for the members what
exactly a bifurcation proceeding is in a divorce.
A. Well, the bifurcation is a request by one or both of the
parties, in this case they stipulated to it, to ask the court to
separate the legal status of marriage from the rest of the dissolution
proceeding which would be the property issues. And then when that's
granted, that entitles the parties then to enter into a final judgment
of dissolution as to marital status. Often, before our housing
crunch, it was done usually because one of the two parties would want
to actually remarry and didn't want to wait till they finished all of
their divorce. But now it's often done because the one asset that's
hanging on, preventing a final distribution of assets and debts, is
the community property home. And since they're not selling too
quickly, that can drag and drag on, the whole case sits. The parties
say, "Well, let's get ourselves single and legally divorced and we'll
deal with the house, as we can, until we can finish that up somehow."
778
Q. So once a bifurcation is entered with the court, the
parties are then eligible to be divorced even though the property
issues are still pending with the court?
A. That's correct. And, in fact, the general wording of the
bifurcation is "The parties hereto enter into this agreement and make
it effective as of the date of filing," which in this case was
December 6th, 2007.
A general paragraph later on says that "The motion to
bifurcate the status of the marriage from the remaining issues in the
dissolution of marriage proceeding is granted and the petitioner and
respondent shall be entitled to proceed to obtain a judgment of
dissolution of marriage as to status only." That's the way we say it.
Q. Sir, has your client showed you any photographs dealing
with allegations of spousal abuse from his wife to him?
A. When I first took Mr. Wiggan's case, which was early in
'07, very, very, very early in the year last year, I did see some
photos one day of--he said they were scratches. I didn't get a copy
of them. I don't have them. I never had possession of them. He
showed me some photos.
Q. And, sir, what has his wife's reaction and treatment of
this divorce been, in your opinion?
TC: Objection. Speculation.
MJ: Overruled.
WIT: Well, in terms of--if I stick to the proceedings from a
legal standpoint, we've had a--my client and I have had a time of
779
fighting what I think is a delay in the proceedings by the respondent.
I don't know why some people delay, because they don't want to deal
with the reality of being in a divorce, others delay for financial
reasons, others just maybe want to be, you know, whatever,
uncooperative. But there's been a constant delay from--in my legal
opinion, for my client.
In other words, we've put procedures forward that are
normal. Mr. Wiggan has signed and cooperated, as would be expected,
and it's taken two or three times as long for the simple stipulation
or to have a hearing that's continued. Although I've continued many
hearings in my career, I'm saying that I think it's taken longer then
it should or could, definitely could, and I think it's more from the
respondent's side than Mr. Wiggan's. I haven't delayed it all. Of
course, he filed the petition to go forward.
Q. And how has she handled issues with personal property in
this case?
A. Pardon me?
Q. How has she handled issues with personal property of the
individuals?
A. I can show in my file--I didn't make copies--but there's a
number of letters from Mr. Staley [ph], the attorney for Ms. Wiggan,
and myself. When the parties separated, which was, according to the
bifurcation--that's also in the bifurcation statement--the parties
separated March 1st, 2006. Since then Mr. Wiggan took some
possessions with him, has not returned or intended to cohabit, of
780
course, with Mrs. Wiggan. She's not returned anything. She moved and
emptied the house, and I have a series of letters asking Mr. Staley to
have his client return some items that are actually very personal and
irreplaceable, some sentimental stuff from his family, and the
attitude unfortunately that I received from Mr. Staley is, uh, you
know, it's not a big deal.
He wanted a briefcase back that belonged to him and
Mr. Staley's office delivered a briefcase to my office and I showed it
to Mr. Wiggan and it was Kim Wiggan's briefcase, not his. So I took
it back with a letter saying this is not the right briefcase; in fact,
he had some papers in his briefcase that he wanted back. He's not
received his briefcase or the papers back.
And about two weeks ago I ran into Paul Staley in court on
another matter and he said, "Well, let's get on"--I said, "About
Wiggans"--he said, "Oh, are they"--he said, "Is he ever going to get
over that briefcase?" You know, I said, "Well, Paul, it's his. You
know, we're not done."
So personally I don't think there's been much consideration
shown by Mrs. Wiggans as to any property that Mark still owns and has
a right to, and that would be separate property, things that he owned
full and clear before they were married.
IMC: Thank you, sir.
No further questions, Your Honor.
MJ: Lieutenant Commander Messer.
781
CROSS-EXAMINATION
Questions by the trial counsel:
Q. Mr. Arnold, you're Mark Wiggan's lawyer?
A. Yes.
Q. So you're paid to represent him?
A. Yes.
Q. He's paying you large sums of money to represent him in his
divorce?
A. There's never enough money, sir.
Q. You're his advocate, though?
A. I am, in civil court, in dissolution, Family Law Court,
Superior Court of California.
Q. And you would agree that--you'd agree that Chief Lewis-
Wiggan is also represented by counsel. I think you mentioned his
name, Mr. Staley?
A. Yes.
Q. So any decision----
A. Well, I'm sorry, sir. Chief Lewis-Wiggan is?
Q. Kimberly Wiggan.
A. Kimberly. Okay. I'm not familiar with--I don't refer to
her that way, but that's fine.
Q. Her lawyer is Mr. Staley.
A. Is Paul Staley.
Q. Paul Staley.
A. Correct, yes.
782
Q. And so, you know, you testified that your opinion is that
they're delaying. Obviously that may be a tactic by Mr. Staley, it
may be a strategy, but that's normally decided by the attorneys, not
the individuals that are involved, correct?
A. It's not for me to know between anyone on the other side
who makes those decisions.
Q. But it's very possible that that could be Mr. Staley
saying, "Hey, this is in our best interest to not quickly dissolve
assets or agree to a divorce, it could be better for you to delay or
for us to delay." Correct?
A. That's possible.
Q. So she could be relying on the advice of her counsel there?
A. Yeah, I suppose, if that's what he's telling her.
Q. Now, you talked a little bit about legal separation. Isn't
it true that the Wiggans have never been legally separated under
California law?
A. Well, if you use the words "legal separation" equal to the
flip side of the coin of dissolution, yes, that's true. Parties can
file either an action for--a petition for dissolution or a petition
for legal separation. They both lead to a document that's called a
final judgment. People used to want to be legally separated, as
opposed to divorce, for mostly religious reasons.
Q. So, in this case, was there ever a petition filed for a
legal separation?
A. No.
783
Q. And there was never a final judgment for legal separation
either?
A. Well, there was no petition filed to ask for such a
judgment.
Q. And the final judgment for divorce was just issued today,
correct?
A. The final judgment for the dissolution of marital status
was filed and entered today.
Q. So when Chief Lewis-Wiggan took the stand yesterday and
said I am still married to Lieutenant JG Mark Wiggan, she was
absolutely correct?
A. I do not know; I wasn't here to say what she said.
Q. All right. Let me give it to you as a hypothetical. If
she were to have represented to this court yesterday that she was
still married to Lieutenant JG Mark Wiggan, that would have been, in
fact, a true statement?
A. I don't know what she based it on. I mean, I really can't
say.
Q. Well, sir, you're the divorce lawyer, you're the expert.
In the State of California, were the Wiggans married yesterday?
A. They were legally married yesterday.
Q. Thank you, sir.
A. However, they have had since December of '07 the right to
finalize their stipulated wish to bifurcate.
784
Q. Right. Yes, sir.
And with respect to the allegations of Lieutenant JG Wiggan
about scratches or whatnot, to your knowledge was any legal action
ever taken by law enforcement or any other agency with respect to him
being allegedly attacked by his wife?
A. Not that I'm aware of.
Q. And did you ever file any complaints on his behalf with law
enforcement or request that law enforcement take action?
A. No.
Q. And have you ever filed a civil lawsuit or any other civil
matter against Lieutenant JG Wiggan [sic] outside of the divorce
proceedings seeking damages for those scratches or anything of that
nature?
A. Have I ever filed anything on behalf of Mr. Wiggan for
any----
Q. Yes, against his wife in reference to----
A. In a civil setting?
Q. Yes.
A. No, I have not.
TC: Thank you, sir. I have no further questions.
MJ: Captain Callahan?
IMC: Briefly, if I may, sir.
[END OF PAGE]
785
REDIRECT EXAMINATION
Questions by the individual military counsel:
Q. Sir, you said that the bifurcation is stipulated between
the parties. When something is stipulated before the court, is it
agreed and sworn by the parties that that is, in fact, true?
A. Yes, and they both signed it, myself and Mr. Staley signed
it, and it is under oath, under penalty of perjury. Yes.
Q. And what is the date it says the two of them were
separated?
A. It says in that document, which I presented a copy to you,
Paragraph 1(c), under Statistical Information, the parties were
separated March 1, 2006.
Q. And in common vernacular, is that separation also sometimes
referred to as a "legal separation"?
A. In common vernacular, it is, but that's not an accurate
term to use.
IMC: Thank you, sir.
Thank you, Your Honor.
MJ: Lieutenant Commander Messer?
TC: No follow up, sir.
MJ: Questions from our members? Affirmative responses from
Commander Grundy and Commander Kelsch. Negative response from the
other panel members.
And let the record reflect that the questions are being
provided to the court reporter for marking as the next appellate
786
exhibits in order.
[Questions from CDR Grundy and CDR Kelsch were marked as AE XLVIII and
XLIX, respectively.]
MJ: And let the record next reflect that the questions are
being provided to counsel for their review.
[The members' questions were inspected by counsel for both sides, and
handed to the military judge for questioning.
MJ: Thank you.
EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q. Question from Appellate Exhibit XLVIII: Mr. Arnold, when
Lieutenant JG Wiggan showed you the pictures of his scratches, did you
tell Lieutenant JG Wiggan or give him advice to not pursue the issue
because if the police were to get involved, they would likely arrest
him?
A. No, sir.
Q. Question from Appellate Exhibit XLIX: Mr. Arnold, once
Lieutenant JG Wiggan showed you the pictures of scratches, why did you
not keep this for future reference in case they were needed in future
of divorce case?
A. I'm presented with a lot of documentary, photographic,
whatever type of evidence from clients. This was early on in the
case. The dynamics of the case had not become apparently what they
are at this point, although from my end it's the same case that I've
had, we're just finishing up with the property distribution. And he
787
did not have copies. I did not make a copy because my copy machine
makes poor copies. Basically I wasn't interested. I saw them, I
heard what he said and I--he kept them and I just knew to myself that
should I need them or should he need them, apparently he would have
them. I just didn't--I don't always keep copies of things like that,
especially early on. In a dissolution action, I deal often with
people initially who are pretty emotional about what's going on. It
seems to get better and calm down as the procedure goes closer towards
the finish. So I listened, I looked. I didn't not make a copy for
any particular reason or to make one. It just--you know, I just
looked and listened and gave him back the picture.
MJ: Follow-on questions, counselors? Captain Callahan?
IMC: No. Thank you, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Just briefly, sir.
RECROSS-EXAMINATION
Questions by the trial counsel:
Q. What format were those pictures in? Were they digital
photos? Were they photo prints, four by sixes, do you remember?
A. No. They were printout.
Q. Printout from off like a computer?
A. I guess. I'm not sure where they came from.
TC: Thank you, sir. No other questions.
MJ: Captain Callahan, anything further?
IMC: No. Thank you, Your Honor.
788
MJ: Additional questions from our members? Negative response
from the members.
[The witness was permanently excused and withdrew from the courtroom.]
MJ: Further evidence from the Defense on the merits of this
case?
IMC: Yes, sir. Sir, at this time the Defense would call Petty
Officer Lee. He is telephonically also.
MJ: Very well.
IMC: Recall Petty Officer Lee. It's the same Petty Officer Lee
that was called earlier.
MJ: Very well.
PERSONNEL SPECIALIST FIRST CLASS CHESTON A. LEE, U.S. Navy, was
telephonically recalled as a witness for the defense, was reminded of
his oath, and testified as follows:
MJ: Captain Callahan, your witness.
IMC: Thank you, Your Honor.
DIRECT EXAMINATION
Questions by the individual military counsel:
Q. PS1 Lee, it's Captain Callahan. Can you hear me?
A. Yes, sir, I can.
Q. PS1 Lee, did Chief--then NC1 Lewis-Wiggan ever show you any
photographs dealing with either her husband or her husband and
somebody else?
A. Yes. She might have shown me maybe two photos, if I'm not
mistaken.
789
IMC: Thank you. Nothing further, Your Honor.
MJ: Lieutenant Commander Messer?
CROSS-EXAMINATION
Questions by the trial counsel:
Q. PS1, what photos were you shown? What did those photos
look like?
A. If I'm not mistaken, sir, I think one photo might have been
of I think just maybe her husband and if there was a second photo, I
think it might be her husband and another woman, but I don't remember
ever seeing her face or anything like that.
Q. And why did she show you those photos?
A. I don't even know exactly when I saw them. Again they were
already--the photos had already been known about. I had heard about
the photos and, like I said, I think she did show me two. If she did,
it was in her office. It was just us two. We were talking about the
situation and she just might have shown them to me to show me what
type of photos were being seen or taken.
Q. And what was the context of why she showed them to you?
Was she trying to explain what was going on or did you ask her?
A. Right. Yes, sir. She was kind of updating me on what the
status was, what else was coming up and what she might expect to see.
Q. What was her demeanor like at the time when she showed them
to you? Was she----
A. I'd have to say, sir, maybe--again, maybe trying to
understand why, not a hundred percent sure, you know, why this was
790
happening or what was going on or what caused the situation to come
about.
Q. Okay.
A. I guess she was kind of----
Q. Go ahead, PS1.
A. I guess she was kind of upset. I don't think--angry is not
the word, but just upset, disappointed I guess.
TC: Thank you, PS1. I have no further questions.
WIT: Yes, sir.
MJ: Captain Callahan?
IMC: Briefly, Your Honor.
REDIRECT EXAMINATION
Questions by the individual military counsel:
Q. PS1 Lee, it's Captain Callahan again.
A. Yes, sir.
Q. What medium was the photographs on when she showed them to
you, that is, were they on a computer, were they printed out, were
they Polaroid pictures?
A. Oh. I believe they were on a computer. I'm not sure if it
was a laptop or whatnot.
IMC: Thank you.
Nothing further, Your Honor.
MJ: Lieutenant Commander Messer?
TC: No, sir.
791
MJ: Questions from our members? Negative response from all
panel members.
[The witness was reminded of his warning and temporarily excused
telephonically.]
MJ: Further evidence from the Defense on the merits of this
case?
IMC: Sir, if we may have about a 15-minute recess to discuss
whether we'll present any further evidence.
MJ: Very well. Members, subject to my standard instructions,
please cover your notes. You may depart the courtroom on a recess.
Please reassemble at 1630 hours.
BAILIFF: All rise.
[All persons did as directed.]
MJ: The members may depart on recess.
[The members withdrew from the courtroom.]
MJ: And this would be a good time to contemplate any rebuttal
evidence, as well, from the Government. Court stands in recess.
Please reassemble at 1630.
[The court-martial recessed at 1615 hours, 23 May 2008.]
[END OF PAGE]
792
[The Article 39(a) session was called to order at 1635 hours, 23 May
2008.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the court at this time, except
we've had a substitution in court reporters. LN2 Redding has been
detailed court reporter for this session and she has been previously
sworn.
During the recess, defense counsel informed the Court that
it anticipated resting at this time.
Is that, in fact, your position, Captain Callahan?
IMC: Yes, sir. Sir, the Defense rests.
MJ: Very well. Lieutenant Commander Penland, I just want to
discuss briefly with you your right to testify at these proceedings.
That is your own personal right and decision.
Have you discussed this matter with your defense counsel?
ACC: Yes, sir, I have.
MJ: You also have the right to remain silent and that is an
absolute right, as well.
Have you discussed that right with your counsel?
ACC: Yes, sir, I have.
MJ: Is it your own personal decision to exercise your right to
remain silent and not testify at these proceedings?
ACC: Yes, sir, it is.
793
MJ: Very well. I will instruct the members as to that right
and they will be instructed not to draw any inference adverse to you
because of your exercise of that right.
ACC: Yes, sir.
MJ: Very well. Since the Defense has rested, and I will again
have you do so in front of the members, does the Government anticipate
rebuttal evidence?
TC: Yes, sir.
MJ: If you would please briefly outline that rebuttal evidence.
TC: Sir, we'll be calling three witnesses. Commander Masi and
SKC Zogaib will be rebutting the good military character defense that
was raised by the Defense in their case-in-chief, and----
MJ: Who's the second witness, please?
TC: SKC Zogaib. She was on our initial witness list.
MJ: Very well.
TC: And I need to make--one minute, sir. No, sir. That will
be it for the--sorry, sir--for the--to the military character. And
then we'll have one additional witness and that will be Lieutenant
Commander Moninger that will be speaking to rebut--will be testifying
in rebuttal to the testimony given by Lieutenant JG Wiggan in the
Defense's case-in-chief.
MJ: In what aspect?
TC: He will be telling us there was a counseling session in
which Lieutenant JG Wiggan admitted to the adulterous relationship
with Lieutenant Commander Penland.
794
MJ: Any further rebuttal anticipated?
TC: No, sir.
MJ: Do you have your rebuttal witnesses standing by?
TC: No, sir. They have been called and they were instructed to
be here at 1700. I think they should be here within the next 15
minutes. I'd ask that the recess just be allowed to continue and I'll
report to the Court when my first witness is here.
MJ: Captain Callahan, given the outlined proffer of rebuttal
testimony, do you anticipate any objections to those areas of
rebuttal?
IMC: Not at this time, sir, but certainly if it----
MJ: If it goes beyond those areas?
IMC: ----goes beyond any area that I feel is improper or if I
think of any objection to those areas even, I will certainly raise it,
sir.
MJ: I am fully confident you will.
Anticipated time frame for the total rebuttal case?
TC: Forty-five minutes, sir.
MJ: I don't really want to release the members on a dinner
recess quite yet since I want to put them in a recess for findings
instructions discussions.
TC: We did have a late lunch, too, sir, so.
MJ: Very well. Anything else we need to discuss at this 39(a)
session?
TC: Nothing from the Government, sir.
795
MJ: Captain Callahan?
IMC: No. Thank you, Your Honor.
MJ: Very well. This 39(a) session is concluded.
Bailiff, if you would please advise the members they can go
stretch their legs, grab a snack or whatever. If they would please
reassemble at 1700 hours.
Carry on. Court's in recess. Carry on, please.
[The Article 39(a) session recessed at 1639 hours, 23 May 2008.]
[END OF PAGE]
796
[The court-martial was called to order at 1710 hours, 23 May 2008.]
MJ: Bailiff, please ask the members to join us.
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Captain Callahan, does the Defense have any additional
evidence to offer on the merits of this case?
IMC: No, sir. Defense rests.
MJ: Very well. Lieutenant Commander Messer, does the
Government have any evidence in rebuttal?
TC: Yes, sir, it does.
MJ: You may proceed.
TC: The Government calls Chief Zogaib to the stand.
MJ: Very well. Please call Chief Zogaib.
[The bailiff retrieved the witness.]
[END OF PAGE]
797
STOREKEEPER CHIEF STACY L. ZOGAIB, U.S. Navy, was recalled as a
witness for the prosecution, was reminded of her oath, and testified
as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Chief, you testified earlier in this case and I know you
may have already mentioned this to the members, but I'd just ask to
quickly go over it again. Can you test--could you state how long
you've been in the Navy.
A. Almost 17 years.
Q. And during that time, where have you served, just a quick
overview.
A. I have served at two SIMAs [ph] reserve center, a MEW [ph],
a squadron, and now I'm with MESG Group ONE.
Q. Okay. And what is your current duty station?
A. MESG Group ONE.
Q. And how long have you been there?
A. I've been there for a year and a half, a year. I was TAD
for a bit and then now I'm permanently assigned there.
Q. Now, do you know the accused in this case, Lieutenant
Commander Penland?
A. Yes, sir.
Q. How is it that you know her?
A. She was my SUPO.
798
Q. During what periods was she your Supply Officer?
A. I reported there in August of '06, and she was there until
February or March of '07.
Q. And did you work for her that entire time?
A. Yes, sir.
Q. And during that time what was your interaction with her;
was it daily interaction?
A. It was. For the first--I was--there was another Chief in
the office for the first month and then after about a month I was her
LCPO for the department, so I had direct interaction all the time.
Q. What types of duties did you have under Lieutenant
Commander Penland?
A. I oversaw the daily runnings of Supply Department. I did
financials. I was the AO for the purchase card program, oversaw the
Sailors' training, general--you know, I was her Leading Chief for the
department.
Q. Did you also know Lieutenant Commander Penland socially?
A. No. It was professional only, in the office.
Q. And based on your interaction with the accused, do you have
an opinion concerning her military character?
A. Yes, sir.
Q. And what is your opinion of her character?
A. It was low.
Q. And why is that?
A. She made it very----
799
IMC: Objection.
MJ: Basis?
IMC: Sir, it's outside the scope of what is proper opinion
testimony as to military character----
MJ: Commander Messer?
IMC: ----giving specific acts of conduct.
TC: Well, sir, I believe I have laid the proper foundation.
I've now asked her what her opinion is.
MJ: And we've heard the opinion. Are you permitted to go into
specific acts or instances on direct exam?
TC: No, sir.
MJ: Objection sustained.
Q. Chief, I would ask that you avoid referring to specific
instances. Could you please elaborate on your opinion as to the
military character of the accused.
A. Her orders were----
IMC: Object again. At this point it's getting into other
specific character traits. She's already testified as to the good
military character, her opinion of good military character to rebut
what was entered in by the Captains and the Commander. Now, at this
point, that's all that's permissible under the rules, both through the
600 series and the 400 series.
MJ: Lieutenant Commander Messer, can you ask a more focused
question to avoid specific instances?
TC: I can, sir.
800
MJ: Please do so, if you can.
Q. Chief, how many Supply Officers have you worked for during
your career?
A. Eight, seven or eight.
Q. And of those seven or eight Supply Officers, where would
you rank Lieutenant Commander Penland as far as effectiveness?
IMC: Objection, sir. Again he's getting into other specific
areas that were not presented in defense. He's permitted to bring in
the testimony as to her opinion for her military character which she
has done, not to her opinion at to other things such as her
effectiveness or her work habits or her abilities.
TC: Sir, I'm asking her to just qualify where her--as to her
opinion. I'm not asking her to refer to specific instances. I'm
asking her to rank Commander Penland against other--the others she's
worked with in her experience.
MJ: Based on the same character trait or another character
trait?
TC: Character trait of her--based on military character, sir.
MJ: Please rephrase your question then.
Q. Okay. Chief, based on your opinion of military character,
how would Lieutenant Commander Penland rank against all the other
Supply Officers you've ever worked with?
A. Low.
Q. When you say "low," what do you mean?
A. The bottom.
801
TC: Thank you. I have no further questions.
MJ: Captain Callahan?
IMC: May I have a moment, Your Honor?
MJ: Certainly.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Good afternoon, Chief.
A. Good afternoon, sir.
Q. Chief, isn't it true that you and Lieutenant Commander
Penland had--she officially reprimanded you after discovering an
unauthorized commitment dealing with the purchase of dry suits for
Squadron FIVE?
A. No.
Q. So there was never a time where Commander Penland sat down
and had a discussion with you about whether or not dry suits you
purchased were on a proper table of allowance, TOA, for Squadron FIVE?
A. We had many discussions as my Supply Officer and her Chief,
but there was not a formal reprimand, no. There was not--it was not--
Q. Did she--did she informally counsel you or reprimand you on
it or say anything, even informally, that you had done it incorrectly
or wrong?
A. Not that I would consider a counseling, no.
Q. Did she challenge the purchase and say it was done
incorrectly?
A. She--maybe, possibly. But that was her job.
802
Q. Did she also speak with you about tasking a civilian
contractor to perform inherently government responsibilities?
A. There were discussions about that and they were corrected.
Q. To your knowledge, is Naval Coastal Warfare Group ONE
currently under investigation for supply violations?
A. We sat through an IG, we've sat through a FISC inspection,
we've sat through a TICOM [ph] validation, and we came through
wonderfully. We did excellent on our NAVSUP inspection. We set the
standard for the TICOM validation. And when I spoke personally with
the IG about our contracting, I was able to substantiate and provide
the paperwork that he needed.
Q. Are you aware whether those IG complaints are still open at
this time?
A. I do not know, sir.
IMC: Thank you, sir. Nothing further.
MJ: Lieutenant Commander Messer?
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. Chief, are any of those matters that counsel inquired into
as far as you being counseled by the accused or talked to by the
accused, have any of those matters in any way biased your opinion as
to her military character?
A. No, sir.
TC: Thank you. I have no further questions.
MJ: Captain Callahan, anything further?
803
IMC: No. Thank you, Your Honor.
MJ: Questions from our members? Negative response from all
panel members.
[The witness was reminded of her previous warning, temporarily
excused, and withdrew from the courtroom.]
MJ: Further evidence in rebuttal from the prosecution?
TC: The Government would now call Commander Masi to the stand,
sir.
MJ: Very well. Please recall Commander Masi.
[The bailiff retrieved the witness.]
COMMANDER MATHEW J. MASI, U.S. Navy, was recalled as a witness for the
prosecution, was reminded of his oath, and testified as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Commander, as a previous witness, I know you provided the
members some background information on yourself. But just briefly how
long have you served at MESG ONE, formerly Coastal Warfare Group ONE?
A. Since October of '06.
Q. And do you know the accused in this case?
A. Yes, I do.
Q. How is that you know the accused?
A. She worked for me at NCWG, now MESG ONE.
Q. And for what time frame did she work for you?
A. She worked for me when I got there in October '06 to
February of '07.
804
Q. And during that time, how many other people did you
supervise besides Commander Penland?
A. Directly in my shop I supervised a staff of roughly five
military and roughly eight or so contractors, plus I was also
responsible for all the supply operations of the force.
Q. And throughout your career have you ever supervised other
officers or Sailors?
A. Yes, throughout my career.
Q. Approximately how many other officers and Sailors have you
supervised throughout your career?
A. Numerous. I've been the Supply Officer of an air station
and I had, you know, six JOs working for me and over 300 civilians
and, you know, 50, 60 enlisted. When I was doing my department head
tour on board a destroyer, I had a department of about 50, 60 Sailors.
So a lot of people.
Q. What's your professional relationship with the accused?
A. I was her boss for the period of those, what, about five
months or so.
Q. And how often would you interact with her during that
period?
A. On a daily basis.
Q. Multiple times a day or----
A. Yes.
805
Q. And what types of assignments would you give the accused
during that time?
A. I'd give her assignments that are, you know, commensurate
with being Assistant Supply Officer, you know, doing presentations,
tracking contracts, you know, developing things for the department.
Q. How often would you supervise her work?
A. Daily.
Q. And did you often review her work product?
A. Yes.
Q. How so?
A. Well, when a product would be brought, whether it be the
command budget, a presentation that we have to give up to higher
authorities, I'd review her work and take a look and see how she did
for that. You know, when I--when it's my turn to present it, it's a
product that I'm proud of.
Q. Do you know the accused socially, as well?
A. No.
Q. Now, based upon your interaction with the accused, do you
have an opinion concerning her military character?
A. My opinion isn't very high of her military character. She
was abusive----
IMC: Objection. That's getting into specific instances of
conduct, sir.
MJ: Sustained.
806
Q. You'll have to limit it just to your opinion, sir.
Based on all of the--all the officers that you've had work
for you in the past, where would you rank Commander Penland against
all of those other supply personnel?
A. I'd rank her right at the bottom.
TC: Thank you, sir. I have no further questions.
MJ: Captain Callahan, questions for the witness?
IMC: Yes, sir.
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Sir, you checked in in the beginning of October of 2006?
A. Yes.
Q. And Lieutenant Commander Penland was your Supply Officer,
correct?
A. At the time I checked in, she was acting as the Supply
Officer, yes.
Q. And who had the primary authority for--to approve
procurement requests?
A. At the time, the way that it was set before I got there,
she did.
Q. And did she continue to maintain that?
A. For a short period of time.
Q. Isn't it true that you were frequently counseled, for want
of a better word, by her for approving procurement requests while she
was still acting as the Supply Officer?
807
A. There has been many times where she told me we could not do
something because of the regs. I asked her, "Show me in the regs."
She never produced it. I produced regs that said that we could do it,
and we did it.
Q. Are you aware of specifically dealing with the purchase of
gym equipment----
A. Well, the gym equipment I'm not--the only gym equipment I
purchased while I was there were mats, actual soft mats. Everything
else in that gym was procured before I got there.
Q. And wasn't that one of the issues that was dealt with as to
whether or not that was a proper procurement in your role, say, as
Logistics Officer or whether you were the Supply Officer?
A. Yes. She said we could not purchase mats due to
regulations. I asked her many times "Show me in writing where I
cannot do it." She could not do it. I actually got a NAV--a SECNAV
instruction that says it's very appropriate to use appropriated funds
to purchase PT equipment.
Q. Isn't it true that you were named in multiple IG complaints
that she filed?
A. Yes, I--yes.
Q. Isn't it true that you're also named in an equal
opportunity complaint that she filed?
A. Yes.
808
Q. You checked in in early October of '06. Are you aware of
the fitness report that she was given at the end of October of '06?
A. I'm aware of it, yes. I had no input into it.
Q. Are you aware that the average member traits of 4.3, 4.3 on
that?
A. I mean--okay.
IMC: [Conferring with accused.] Nothing further, Your Honor.
MJ: Lieutenant Commander Messer, anything further from the
witness?
TC: Briefly, sir.
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. Commander, the defense counsel inquired into several
complaints that had been lodged against the command and you were named
in those complaints. To your knowledge, was the--were those
complaints filed before or after the accused was issued a letter of
instruction?
A. After.
Q. And to your knowledge, were those complaints issued before
or after the command opened an investigation into the allegations that
are before this court today?
A. After.
TC: Thank you. I have no further questions.
MJ: Captain Callahan?
IMC: No. Thank you, Your Honor.
809
MJ: Questions from our members? Negative response from all
panel members. Oh, affirmative response from Captain Booker.
Negative response from the other panel members.
[The question from CAPT Booker was marked as AE LI.]
MJ: And let the record reflect that the bailiff is providing to
counsel Appellate Exhibit LI for their review.
[The member's question was inspected by counsel for both sides and
then handed to the military judge for questioning.]
MJ: Thank you.
Let the record reflect that counsel for both sides have had
an opportunity to review Appellate Exhibit LI.
EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q. Question from Appellate Exhibit LI: Commander Masi, who
did CO, Captain Sturges, issue letter to giving procurement authority
to?
A. Which time? I mean there's been two letters of procurement
authority. Lieutenant Commander Penland received one before I got
there, and after I got there, shortly--like I said, I'm not exactly
sure of the date after that--I did.
MJ: Very well. Bailiff, if you would return Appellate Exhibit
LI to Captain Booker for his signature.
[The bailiff handed AE LI to CAPT Booker; CAPT Booker placed his
signature on AE LI.]
810
MJ: Thank you. And you may return Appellate Exhibit LI to our
court reporter.
[The bailiff handed AE LI to the court reporter.]
MJ: Follow-on questions in light of that question, Lieutenant
Commander Messer?
TC: No, sir.
MJ: Captain Callahan?
RECROSS-EXAMINATION
Questions by the individual military counsel:
Q. Sir, you had been there several months by the time you
received that letter, hadn't you?
A. Shortly after. I mean, two to three months, yeah. I'm not
exactly sure of the exact date.
IMC: Thank you, Your Honor.
MJ: Lieutenant Commander Messer, anything further for the
witness?
TC: No, sir.
MJ: Follow-on questions from our members? Negative response
from all panel members.
[The witness was reminded of his previous warning, temporarily excused
and withdrew from the courtroom.]
MJ: Further evidence from the prosecution in rebuttal?
TC: Yes, sir. The Government would call Lieutenant Commander
Moninger to the stand.
MJ: Very well. Please recall Lieutenant Commander Moninger.
811
[The bailiff retrieved the witness.]
LIEUTENANT COMMANDER THOMAS P. MONINGER, U.S. Navy, was recalled as a
witness for the prosecution, was reminded of his oath, and testified
as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Commander, you've already had the opportunity to address
the members with your background. These questions are in relation to
your time when you were the XO of the USS PRINCETON.
During that time, did you have a Sailor, Lieutenant JG Mark
Wiggan that worked for you?
A. I did.
Q. And he was your Main Propulsion Assistant?
A. That's correct.
Q. Did you ever discuss his relationship with the accused in
this case during that time that he worked with you?
A. Yes, I did.
Q. And what was discussed?
A. What was discussed was that he had had relations with
that--with Lieutenant Commander Penland.
Q. And when you say "relations," what exactly do you mean?
A. Relations of a sexual nature.
Q. And he reported this to you?
A. He did. He reported it to me in a conversation that I had
with him after I had received a phone call from the Executive Officer
812
of the MOBILE BAY, and the XO of MOBILE BAY told me that there was a
Sailor on board MOBILE BAY, it was--it turns out that that was
Lieutenant JG Wiggan's wife. I believe she's a Chief now, NCC Wiggan,
and that Chief Wiggan, NC1 at the time, was receiving harassing--was
being harassed by Lieutenant Commander Penland. The--and that the
harassment included some sort of e-mails that had explicit pictures of
Lieutenant JG Wiggan and Lieutenant Commander Penland and that had
been sent to--that had been sent to NC1 on MOBILE BAY.
The XO of MOBILE BAY's reason for contacting me was to
determine--was to make me aware of this problem and to determine--to
try to find out what I knew about the circumstances and to also try to
find out if Lieutenant JG Wiggan was involved in the harassment. In
the--so in my conversation with the XO of MOBILE BAY, I explained my
understanding from conversations that I had had previously with
Lieutenant JG Wiggan was that he was having marital problems, that he
was trying to be--that he was--that they were trying to get separated,
that he was involved, in general terms, with someone else. I didn't
know specifically who that was until this phone call from the XO of
MOBILE BAY. And so I took that information from the XO.
I spoke with the Commanding Officer and I also spoke with a
lawyer on the admiral's staff, the NIMITZ Strike Group staff, just to
discuss in general terms should get a legal recommendation on what
actions are expected and required of PRINCETON. My understanding was
confirmed that we should investigate it and so I spoke with the
Captain and we investigated the issue. The investigation included me
813
sitting down with Lieutenant JG Wiggan and ask--and explaining that--
explaining that I--exactly what I had just--what I've just told you
was that I was aware that there was harassment of his wife, that and
at this point I knew they were separated or trying to obtain a
divorce.
So I--and I told him--I told him directly, you know, your--
"Explicit pictures of you and Lieutenant Commander Penland were being
sent to your wife. Are you involved with this? Are you harassing
your wife?"
"No, I'm not."
"Are you having--or, you know, are those pictures--or they
depict something that's accurate?"
"Yes, they do."
And so because I--the course of our discussion focused,
after having discussed--read the specific article about that that
would be pertinent in this case, adultery, I'm not sure of the exact
number, but, you know, I looked at it. I looked--I read, and what the
article specified and this was--and this was at the recommendation of
Lieutenant Commander Hancock, the lawyer on the NIMITZ Strike Group
staff, explained to me, and I read it closely. And I had explained to
the Captain before I interviewed Lieutenant JG Wiggan that there is
the actual act of having relations with someone who isn't your wife
when you're--or your spouse when you're married, and then there's the
other aspect of it that it's--the actions are prejudicial to good
order and discipline or are such to bring discredit upon the military.
814
So there were two parts to it. There was an A and a B basically.
And the focus of my discussion with Lieutenant JG Wiggan
was it was the A was assumed. He admitted that A was done. He had
met that part of it. And it was a question of whether we felt--we, as
the command, felt that it was prejudicial to good order and discipline
or that it brought discredit upon the Navy. And I--in my discussion
with Lieutenant JG Wiggan, who up to this point and even after this
event had been very forthright with me, had explained that--had
explained to me as soon as--shortly after I reported as Executive
Officer in the summer, in July of 2006, was explaining that he had
marital problems with his wife, that over the course of the next
couple months that he was getting separated and that--and he would
tell me these things because I think he anticipated that at some point
I would learn about it, and ultimately that was true; I learned about
it from the XO of MOBILE BAY. But prior to that, over the course of
several months, he explained to me he was having problems with his
wife. He--you know, he said he was seeing other people and I said,
you know, that though he's trying to--trying to--though he's--you
know, he explained he was seeing other people.
And my discussions with him up to this--prior to this
conversation with the XO of MOBILE BAY, my discussions with him were,
"Listen, you know, if you're telling--you know, I have to investigate
things that break the Uniform Code of Military Justice, but--and I
appreciate you telling me all this stuff to--you know, to let me know
if there's going to be problems, but your private life is your private
815
life and, as long as it doesn't cross my desk, then it stays your
private life. But you lose control of your private life when it
crosses my desk. So thank you for giving me a heads up on all these
things, but, you know, solve your problems and--solve your problems
and let me know if you're going to be in trouble." And we've had
several--we had several of those conversations prior to--prior to this
into the investigation.
The--so our--so I concluded my inquiry with him but also
told him the scope of the article that was--that he could be charged
with and then also the possible ramifications what the Commanding
Officer could do.
Q. So there's no question in your mind that through your
conversations that he confirmed there was a sexual relationship?
A. There was absolutely no doubt in my mind. And I
subsequently took the results of that investigation and provided it to
the Commanding Officer with that Part A was met of the article, but
Part B was not, that I didn't think it was prejudicial to good order
and discipline on PRINCETON because of the fact none of it occurred on
PRINCETON and I didn't think, since it wasn't out in the papers, it
wasn't such to bring discredit on the Navy, at least from Lieutenant
JG Wiggan's performance. So I made that recommendation to the
Commanding Officer and that's--and I--have I adequately addressed your
question?
816
Q. Yes, you have more than. Thank you.
Direct your attention to the change of command on
USS PRINCETON. I don't know the exact day. Maybe you do. Do you
recall the date?
A. I want to say that this is the--well, I can tell you
chronologic. I think--I'm sort of guessing here. I think it's the
20th of October. It is the 20th of October 2006. It occurs after--it
occurs after Fleet Week in San Francisco. The new Commanding Officer
walked on board the--Captain Moline [ph] walked on board PRINCETON
while we were in San Francisco. We sailed down to San Diego and then
I think that following Friday the change of command occurred.
Q. Did you receive a call from Lieutenant JG Wiggan sometime
after the change of command that day?
A. Yes, I did.
Q. And what was that call about?
A. The call was about--the call was from Lieutenant JG Wiggan
and he was telling me that he was having problems with--he was having
problems with his wife and that--and that somebody--and I--I don't
remember who it was that was going to go--that was going to--that he
was warning me about, but he wanted to let me know that in case I
heard of anything, that somebody was going to be on the quarterdeck
wanting to talk to the XO about his personal problems.
And he did call me and I said--and this was--I remember
distinctly I received the call on my cell phone as I'm walking down
the pier. I had just crossed the quarterdeck. I had--I was one of
817
the last ones leaving the ship that day. No one told me anything
about--no issues with Lieutenant JG Wiggan had come up.
I thought that phone call was somewhat odd that he would
call me and tell me that. This is, you know, three months into my
tour as XO, so I don't know him very well, I don't know his personal
situation very well.
But I was walking down the pier and I didn't see anybody
and I got into my car at the head of the pier and I didn't see anyone,
you know, running down the pier to make any kind of ruckus. So I
thanked him for the call. I told him that, you know, "I appreciate
what you're telling me." I vaguely remember, and this is--I'm not
certain about this, but I vaguely remember discussing that--you know,
I think the problem involved his wife and another woman and I think
that was the scope of the conversation. I told him, you know,
"Adultery is against the Uniform Code of Military Justice, but, you
know, unless I find out about this officially, I don't really have
anything to act on," and so again I appreciated his call.
TC: Thank you, Commander. I don't have any other questions.
Thank you very much.
MJ: Captain Callahan?
[END OF PAGE]
818
CROSS-EXAMINATION
Questions by the individual military counsel:
Q. Sir, did Lieutenant Wiggan ever make allegations of
physical abuse from his wife?
A. He told me that he had had an altercation with his wife, or
rather she had had an altercation with him. I think the circumstances
were he was trying to obtain his possessions from their house and--or
something to that effect and that she had--that she had struck him or
had attacked him somehow. And my concerns were--my immediate
questions were, "Well, did you provoke it? Did you hit her?"
"No, I didn't" was his response.
Then my next question, "Were the police called? Did
someone--you know, did someone--well, were the police called?"
"No, they weren't." And I think he told me that he left.
You know, he tried to get out of the situation.
And I said "That's the right course of action." And then I
think I asked, and I'm not entirely sure about this, but I think I
asked if he was--you know, if he wanted to take any kind of official
action or call the police himself and I--and he said no, to my
recollection. But, yes, that is the circumstance by which I learned
of--that there had been an altercation between--a physical altercation
between his wife and himself.
Q. I mean, just for clarity, your testimony is that Lieutenant
Wiggan was never charged with adultery?
A. I don't understand your question.
819
Q. The command never charged him with adultery, he was never
given mast for the----
A. Lieutenant JG Wiggan never went to mast on PRINCETON for
adultery, that is correct.
Q. He was never sent to a court-martial for adultery?
A. He was never--he was not sent to a court-martial for
adultery.
Q. Not sent to a board of inquiry for adultery?
A. I'm not--I'm not familiar with the term court of inquiry,
but----
Q. Board of inquiry. They didn't--an ADSEP for an officer.
A. No.
Q. The PRINCETON did----
A. That is correct.
Q. ----not ADSEP him?
A. That is correct.
IMC: Thank you, sir.
Nothing further, Your Honor.
MJ: Lieutenant Commander Messer, anything further for the
witness?
TC: Just briefly.
[END OF PAGE]
820
REDIRECT EXAMINATION
Questions by the trial counsel:
Q. What action, if any, did the PRINCETON take with Lieutenant
JG Wiggan?
A. The Commanding Officer took the results of the
investigation and conducted and counseled Lieutenant JG Wiggan on his
performance and what he should do to prevent any further problems and
to make sure that he didn't get in any trouble.
TC: No further questions, sir.
MJ: Captain Callahan?
IMC: Can I have a second, Your Honor?
MJ: You may.
[Defense counsel and the accused conferred.]
RECROSS-EXAMINATION
Questions by the individual military counsel:
Q. Sir, what was his final fitness report evaluation upon
leaving the PRINCETON?
TC: Sir, objection. Relevance.
MJ: Overruled.
WIT: Well, what I can tell you, I--I mean I review all fitness
reports for submission for the Commanding Officer. I do not see the
final product. So----
Q. Yes, sir.
A. So I can't say what his final evaluation was. I don't know
the final.
821
Q. But what was the evaluation from you to the Commanding
Officer?
A. My evaluation of Lieutenant JG Wiggan's performance was
that he was a good officer and that he performed his duties well.
IMC: Thank you, sir.
Nothing further, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Nothing further, sir.
IMC: If I may briefly reopen, sir?
MJ: Very well.
Q. Was he given an end of tour award upon leaving the ship?
A. Yes, he was.
Q. And what award was that?
A. It was--I believe it was a Navy Commendation.
IMC: Thank you, sir.
Nothing further, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Nothing further, sir.
MJ: Questions from our members? Negative response from all
panel members.
[The witness was reminded of his previous warning, temporarily excused
and withdrew from the courtroom.]
MJ: Further evidence from the prosecution in rebuttal?
TC: No, sir.
822
MJ: Captain Callahan, do you anticipate evidence in
surrebuttal?
IMC: May I have about a 15-minute recess to discuss that with my
client, Your Honor?
MJ: Very well. Members, subject to my standard instructions,
please cover your notes. You may depart from the courtroom in a
recess. Please reassemble at 1800 hours.
BAILIFF: All rise.
[All persons did as directed.]
MJ: Court stands in recess. The members may depart the
courtroom.
[The members withdrew from the courtroom.]
MJ: Carry on. Court stands in recess.
[The court-martial recessed at 1745 hours, 23 May 2008.]
[The court-martial was called to order at 1808 hours, 23 May 2008.]
MJ: Bailiff, please ask the members to rejoin the court.
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time.
All others may be seated.
[All persons did as directed.]
823
MJ: Captain Callahan, does the Defense have any evidence in
surrebuttal?
IMC: No, Your Honor.
MJ: Very well. Members, the evidence in this case has been
exhausted. At this time I am going to send you into a dinner recess.
During that recess period, I will discuss with counsel the
instructions that I will give you later this evening.
For planning purposes I will ask that your dinner recess,
please return at 1930 hours. At that time I hope to have the
instructions ready so that counsel can provide you closing arguments.
I don't typically limit the closing arguments, although usually
they're between 30 and 45 minutes per side. My instructions I
anticipate will take between 25 and 35 minutes to give you, and then I
plan to put you into your first closed session deliberations this
evening. I don't know how long those deliberations will take and I
suspect neither do you at this point since you haven't had the
opportunity to begin them. There is substantial evidence, including
records, I know you'll want to review thoroughly. If your need for
deliberations continue past, say, 2200 hours or so, I will give you
the option of pressing forward this evening and reassembling tomorrow
morning. So essentially that is the game plan for tonight.
Members, subject to my standard instructions, please cover
your notes. You may depart on a dinner recess. Please reassemble at
1930 hours.
BAILIFF: All rise.
824
[All persons did as directed.]
MJ: The members may depart on a dinner recess. Counsel, please
stand by.
[The members withdrew from the courtroom.]
[The court-martial recessed at 1810 hours, 23 May 2008.]
[END OF PAGE]
825
[The Article 39(a) session was called to order at 1810 hours, 23 May
2008.]
MJ: Please be seated.
[All persons did as directed.]
MJ: This 39(a) session is called to order.
Let the record reflect the members have departed from the
courtroom on a dinner recess.
Counsel for both sides, please approach.
[Trial counsel and defense counsel approached the bench.]
MJ: I'm providing the counsel for both sides Appellate
Exhibit L, a very tentative draft of my findings instructions. I did
note a change in reviewing the findings worksheet that I will make
after this session. I did not notice it at first, but the Government
has in the charge sheet a Charge IV and a Charge V both under Article
134. They should have been properly brought under a single charge as
separate specifications. Nonetheless, the charges are as they are on
the charge sheet and I'll deal with them in the findings instructions.
I will make it clear on the record now, if I was not clear,
Charge IV and its sole Specification was dismissed pursuant to R.C.M.
917. There is no other specifications under Charge IV, therefore, we
will skip Charge IV on the findings worksheet, as well as my findings
instructions, and renumber the allegations of adultery as Charge V and
the sole Specification thereunder.
Counsel, I know you haven't had the full benefit of
reviewing Appellate Exhibit L, so I just want to at this point
826
highlight a number of issues for you to contemplate; and when we
return, we can have a more in-depth discussion as to the findings
instructions that I have drafted.
On Page 2 of Appellate Exhibit L I have defined the
regulation as a matter of law to be a lawful regulation. I don't
believe that was an issue as the parties have requested the Court take
judicial notice of the Joint Ethics Regulation.
I did, though, incorporate from the standard Bench Book
instructions, which is where all of these instructions come from, the
language that's reflected in the middle of the page after "divers
occasions" that talks about general regulation prohibiting certain
acts but also having certain exceptions. Here the exception would be
official purpose or an authorized purpose for the use of government
property. I think that is an appropriate definition and instruction
to provide the members.
On Page 5 again I have caught that error. It will be a
Charge V and a sole Specification on Page 5 to reflect the alleged
offense of adultery.
I do appreciate any input concerning the circumstances that
are outlined on Page 6, to determine whether the alleged adultery in
this case was prejudicial to good order and discipline or was of a
nature to bring discredit on the armed forces. These are the standard
factors that the members could or should consider. Please review
them. I believe I have tailored them appropriately to the
circumstances of this case, but your further inputs would be welcome
827
when we return from a recess.
I have also added on the very bottom of Page 6 a line that
talks about a marriage status being governed by competent state law or
foreign jurisdictional law. I believe that was also appropriate to
incorporate in the instructions.
Beginning on Page 7 there are further substantive
instructions not related to the offenses themselves. These are
standard instructions from the Judicial Judge's Bench Book concerning
reasonable doubt and credibility of the evidence.
With regard to credibility of witnesses on Page 8, I have
left it there for our future discussion several instructions that I am
contemplating. The first is an accomplice instruction concerning the
credibility of Lieutenant JG Wiggan. Please look at that in the Bench
Book and see if it is appropriate under the circumstances of this
case.
Also, I believe with regard to credibility of witnesses,
there may be an appropriately tailored instruction for witness
credibility bearing on character for truthfulness and untruthfulness,
and I will welcome any submissions of yours as to how to tailor that
particular line of instruction.
Also with regard to the character of the accused to show
probability of innocence, there has also been evidence to the contrary
offered in rebuttal from the Government, and I'll incorporate that
language from the standard instruction, as appropriate.
828
Page 9, please look at the judicial notice section
carefully to make sure I have incorporated the judicial notice that
has been requested of the Court, essentially the Joint Ethics
Regulation, as amended, as well as the date that was requested that
the Court take judicial notice of.
I've incorporated the standard instructions on
circumstantial evidence, as well as knowledge and intent, specifically
as it pertains to Charge II and its sole Specification, the false
official statement. Specific intent to deceive is, in fact, an
element of the offense, as well as knowledge of falsity which may be
proven by circumstantial evidence and, therefore, I have tailored that
particular instruction to apply to the Specification of Charge II.
On Page 10, concerning prior inconsistent statements,
having received evidence in rebuttal, I believe that there is evidence
that Lieutenant JG Wiggans may have made a prior inconsistent
statement concerning the facts of this case. I solicit your response
at our next session concerning that matter. Also as to whether there
were other inconsistent statements made by any of the other witnesses
to the trial, I don't have any specific notes to that effect; but if
you have specific testimony you feel that was inconsistent with
courtroom testimony, please let me know.
I intend to give the standard spill over instruction since
we have multiple offenses, that each must stand alone.
I will give the standard instruction concerning Lieutenant
Commander Penland's right to remain silent.
829
Moving to Page 11, I have incorporated the standard
procedural instructions on findings.
With regard to the numbers, two-thirds of our eight member
panel would require six members for any finding of guilty.
And I have also reviewed a draft of the findings worksheet
and encourage you to do so, as well. I have not marked it yet as an
appellate exhibit, but will do so and will incorporate the appellate
exhibit number, as appropriate, on Page 11 and 12.
Other issues I wanted to raise with you--are there any
questions at this point about the proposed instructions on findings or
requests for other instruction findings--instructions on findings that
I have not yet discussed with you?
TC: No, sir.
MJ: Captain Callahan? Or do you desire a recess to contemplate
that question?
IMC: Sir, I'd like to look through them and, as the Court
addressed----
MJ: Certainly.
IMC: ----I'll look through them. But one thing that does jump
out at me is I think the evidence did raise the possibility of a
mistake of fact offense based on the testimony of Chief Wiggan that
she believed her husband had deceived my client as to her marital
status.
MJ: As to which offense would the mistake of fact apply?
IMC: To the adultery offense.
830
MJ: The general intent crime, adultery?
IMC: I'd have to look, sir. That's just something that came to
me. I didn't anticipate that being a defense, but just as you were
looking----
MJ: Very well.
IMC: ----at instructions.
MJ: Why don't you look at that in more depth; and if you have
any precedent to offer the Court, I certainly would welcome it.
IMC: Yes, sir.
MJ: I know that would be an--I think an unusual application of
the mistake of fact defense since it is a general intent status crime.
IMC: Yes, sir.
MJ: But if there is case precedent, I'm certainly willing to
listen to reasonable requests.
Also, if there are other requests for specific tailoring
that I have not already provided, please share that with the Court and
with your adversary counsel.
Additionally, I did not provide lesser included offenses.
Frankly I did not see any as appropriate under the circumstances, but
I am open to that issue as well, if counsel want to raise it at the
next session.
And also I did not provide for exceptions and substitutions
or variance. Again, I'm open to that, but it did not strike me that
there was any substantial variance that would necessitate findings by
exceptions and substitutions. But again if counsel feel that is
831
appropriate, let's discuss that in more detail, as well.
Any additional comments concerning the proposed findings
instructions, Appellate Exhibit L?
TC: Not at this time, sir.
MJ: Captain Callahan?
IMC: Sir, also at this time, in regards to Page 6, I think one
of the appropriate things to consider is to whether or not the
marriage was prejudicial to good order and discipline, is whether or
not the two of them had physically separated, as per stated in her
divorce documents before the alleged affair occurred.
MJ: Well, it says that one line--and I should really line
these--but there is whether the accused or co-actor was legally
separated.
IMC: Yes, sir. But that's referring again to an actual legal
separation vice an actual physical separation, because you have two
things. It's the divorce attorney testified you can be legally
separated, actually filed with the State of California, slam bam,
you're now legally separated, which we do not have in this case.
But what we do have in this case is an actual physical
separation of the parties predating the alleged affair, as testified
to not only by the--by Lieutenant Wiggan but also as testified to--and
evidence in the divorce proceedings. And I think the fact that the
two of them had already physically separated, had broke up their
community and their community property for purposes of divorce
proceedings is certainly relevant as to whether or not any affair that
832
occurred during that time period would be adultery under the Uniform
Code of Military Justice.
MJ: Well, if you have some case precedent or authority, I'd
certainly be willing to listen to it. I'm not sure the general
proposition that people who live apart have the right to engage in an
adulterous relationship, but if there's some authority towards that
end----
IMC: No, sir. But it's simply one factor to consider. It's
not--and I'm not requesting the Court to instruct them that if they
find that, then they cannot find it. But it is something I think that
is appropriate for them to be allowed to consider in the totality of
the circumstances as to whether or not it's prejudicial to good order
and discipline.
TC: Sir, the Government would oppose that.
MJ: Very well. Well, you'll have an opportunity in this next
recess to conduct any research you desire; and if you have something
that you'd like to provide, I certainly will consider that, as well.
Okay. Anything further before we take a recess so you can
conduct your research and propose additional findings instructions?
TC: Nothing from the Government, sir.
IMC: No, sir.
MJ: Very well. If you would take this time to conduct that
research. If we could again meet on the record at 1900 hours. I
think that will give you some time to do the research and propose your
additional instructions, as well as hopefully to grab a little bit of
833
dinner. There being no other business, court stands in recess.
Please reassemble 1900 hours. Carry on, please.
[The session recessed at 1822 hours, 23 May 2008.]
[The session was called to order at 1912 hours, 23 May 2008.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the dinner recess are again present before the Court at this time,
except for the members who remain in the deliberation room.
During the recess, counsel, I revised my earlier draft
findings instructions and I have provided to you Appellate Exhibit
LIII. I'll highlight the significant modifications I made during the
recess based on your inputs from out last session and then I'll
receive your arguments as to any additional changes or objections to
the instructions I have proposed. I'll also note that I have numbered
each of the lines of this particular appellate exhibit to aid our
discussion.
First, changes on Page 6 to reflect Charge V and its sole
Specification.
Moving on to Page 7, you will note in Lines 19 through 22 I
have italicized two entries. One reflects the status of Lieutenant JG
Wiggan and NC1--then NC1 Lewis-Wiggan as physically separated and
living apart. Again these factors are factors which bear on a
determination as to whether the conduct was prejudicial to good order
and discipline or service discrediting, and I believe that this is a
factor that should be considered in such a determination.
834
Also, with regard to whether the accused reasonably
believed that Lieutenant JG Wiggan was legally separated--I'm sorry--
divorced or legally separated from his spouse, I believe that also is
a factor that could be and should be considered in making such a
determination.
At the very bottom of Page 7 there is the beginning of a
defense of mistake of fact, and I'll have to revise the--that
particular entry beginning on Page 8. In reviewing the standard Bench
Book instructions, there was, following adultery, the provision for an
instruction on mistake of fact. As this bears on general intent, I
have drafted the mistake, as reflected on Page 8 of Appellate Exhibit
LIII. The two part criteria for a mistake of defense, in terms of
general intent offenses, is that the mistake was held by the accused
and also that under the circumstances such a mistake was reasonable.
Moving into the instructions further on Page 10, you will
find I have expanded the instructions on credibility of witnesses to
include the standard accomplice instruction. If the members do find
that Lieutenant JG Wiggan was an accomplice to adultery, then that
instruction would be appropriate, as reflected on Page 10.
I have also included a statement--a prior inconsistent
statements instruction. In reviewing my notes, it was clear that
Lieutenant JG Wiggan may have made such an inconsistent statement
prior to trial. It was not clear that other witnesses have, so I'll
certainly receive your input as to any other witnesses that may have
made prior inconsistent statements.
835
Moving to the top of Page 11, I inserted the standard
instruction for character for untruthfulness as it applied to NC1
Lewis-Wiggan and Lieutenant JG Wiggan, and I'm not sure that there
were any other witnesses who had character for truthfulness or
untruthfulness elicited, but again I solicit your input.
I have also modified the character of accused to show
probability of innocence instruction to include the rebuttal evidence
the prosecution offered.
And I'll probably further tailor Line 10 on Page 11 to
incorporate low or poor military character. I believe that was the
opinions offered by the rebuttal witnesses.
IMC: Sir, in regards to that line, sir, it reads accused vice
accused's in the possessive.
MJ: Ah, thank you. Yes. Also, given the time frame I put this
together, there may be other typographical errors. Please bring those
to my attention before I actually give the instructions to the
members; I would appreciate that.
Okay. I think the remainder of the instructions has been
unchanged.
I did incorporate on Pages 14 and 15 the findings worksheet
as Appellate Exhibit XV [sic], which we need to discuss separate in a
moment.
With regard to the instructions as I have now discussed
them, do counsel have any objections to the instructions proposed or
requests for additional findings instructions not already discussed?
836
TC: Yes, sir.
MJ: Very well. Lieutenant Commander Messer?
TC: Yes, sir. Directing your attention to Page 7, Line 19--or
excuse me--yes, sir, Line 19. I object to that provision being in
there. I think it's--I think it's confusing to the members. It's
already covered with the legal separation issue which is in the M.C.M.
and especially in this case since there is--there is no solid evidence
that they were physically separated. You had Lieutenant JG Wiggan
talking about yeah, I never was never around and then he admitted,
well, I used to--I would sleep there some nights and then he would
house--you know, I think it's misleading to the members and I don't
think it's appropriate and there's a reason why something like that is
not in the M.C.M. It's covered under the--under the legally separated
provision and I think we've already fleshed out that they were not
legally separated during the time.
MJ: Captain Callahan, your position?
IMC: Sir, my position is that it definitely belongs in, and we
actually have very strong evidence they were separated. We've got the
sworn testimony of the defense attorney saying that they both signed
off on a document that is declared under penalty of perjury that they
were physically separate from a date that predated these alleged
charges. So there's actually very strong evidence that they were.
Either she committed perjury when she signed off on that or they were,
in fact, separated. So----
837
TC: Sir, I think that's--that in and of itself is misleading
and that's the problem right there. That date is for the division of
assets and that's what the judge [sic] testified to. The facts of the
case speak for themselves. The members can make that determination.
But to put a provision like that in there that's not in the Manual for
Court-Martial I think is prejudicial to the Government and it is--it's
misleading to the members.
MJ: Captain Callahan, what about the Government's argument that
this concept is already adequately addressed in the next instruction
on Lines 21 and 22?
IMC: Sir, it's a completely different situation. On one
circumstance you have in the State of California somebody is no longer
there, considered separated for purposes of the community property
when one parties leaves, they no longer live together and they no
longer--and they have an intent to never return and, in fact, live
together as a couple.
On the other hand you have legal separation which is an
official filing of status with the court, and it certainly makes a big
difference as to whether or not something's prejudicial to good order
and discipline if somebody's coming and committing adultery and
breaking up an active marriage or if somebody's coming in and
committing adultery and breaking up a marriage that was already broke
and the parties were already physically separated and no longer living
together as husband and wife.
838
Certainly if--for instance, if the outside is looking in on
that for the question as to whether or not it's service discrediting,
the outside world takes a very different view on adultery if somebody
comes in and breaks up an active marriage or if two people are no
longer living together as husband and wife and somebody comes in and
has an affair with one of those people.
So it certainly is something that is proper to consider and
it is not addressed by legal separation because it's the--the divorce
attorney testified that is an official separate status that you get by
filing paperwork with the court.
MJ: Lieutenant Commander Messer?
TC: Sir, just briefly. Legal separation is a more stringent
standard. You have actually taken the active step of petitioning the
court to be legally separated and a court has ordered that you be
legally separated. And the drafters under the M.C.M., when they put
that in there, obviously were considering that stronger requirement as
a factor to consider under the service discrediting elements that you
may consider.
By allowing Defense to get in this lesser one, which is
just a decision, whether or not it existed is debatable, for them to
just live apart or to be physically separated and living apart,
diminishes that element and it's--like I argued before, it's already
covered under M.C.M.. You're just basically giving them a lesser--a
lessor factor or a factor that's easier to establish or easier to
achieve and it's--it was never contemplated or meant under the M.C.M.
839
because it had already been covered under the notion of legal
separation.
MJ: Final argument, Captain Callahan?
IMC: Sir, just again it's obviously very clear it's a factor to
consider. It doesn't mean that just if that's found, then the Defense
is off the hook. But that's certainly something to consider within
the totality of the circumstances and to suggest that it somehow
doesn't matter because it's not a legal separation is I think somewhat
disingenuous. It obviously is going to matter a great deal to people
if you have somebody that's--you know, hasn't gone through the lengthy
time and process of getting an official divorce but has not been--you
know, they're no longer living together, you just push it out to a
further extreme so it's easier to tell the difference.
Let's say they hadn't been living together for 20 years as
husband and wife but had never gone through the bother of getting an
official divorce. Certainly that point people are going to take a
look at that and say 20 years have gone by, never gone through the
bother of getting officially divorced, but certainly this is something
very important to consider with regards to whether or not this is a
"bad thing" I guess for want of a different word.
So in this case maybe we don't have 20 years, but we've got
many months. So still maybe not as powerful an argument, but the
argument still exists there and it's something that's still
appropriate to instruct the members on, Your Honor.
MJ: Final argument, Commander Messer?
840
TC: No, sir. I'll rest.
MJ: Very well. Government's objection is noted and overruled.
With regard to the determination of the evidence, I leave that to the
members. Do not believe that with regard to the list contained in the
Manual for Courts-Martial, that is an exhaustive or exclusive list.
It specifically includes all circumstances and factors on the issue,
including but not limited to. I think that contemplates that there
may be other factors to be considered. Given the state of evidence in
this case, I have concluded that this is a factor that the members may
consider in making a determination as to whether the conduct was
prejudicial to good order and discipline or service discrediting.
Further objections, concerns?
TC: Sir, I'd also object to the italicized portion underneath
it in that you've already covered that under the defense of mistake of
fact. I don't see how it can be both a defense and a factor to
consider as to whether it's service discrediting or not. It's either
one or the other.
MJ: Captain Callahan?
IMC: Sir, I think it can go to both and should be left as the
military judge currently has it.
MJ: Well, I suppose is the concept adequately represented in
the defense mistake of fact, and I suppose the other question is to
turn it around. Could the members reject that the accused--or at
least that the mistake does not apply because all of its criteria was
not met, but still find that under the circumstances that the accused
841
believed Lieutenant JG Wiggans was divorced or legally separated as a
factor to consider.
Captain Callahan?
IMC: I have nothing to add, sir. Just I think it applies to
both and could potentially maybe, in the member's mind, apply to one
but not the other, so it should be left in both.
MJ: Lieutenant Commander Messer?
TC: Nothing further, sir. I made my argument.
MJ: I still believe it's an appropriate factor for the
community as well as service members to assess in determining if the
conduct brought discredit on the service or was prejudicial to good
order and discipline. Certainly the accused's own state of mind
concerning whether the co-actor was divorced or legally separated
would be such a factor, so I'm going to leave that in there.
Any further discussion as to the defense of mistake of fact
or the tailoring as I have drafted the instruction on Page 8?
Lieutenant Commander Messer?
TC: Stand by, sir. Sir, I'm satisfied with that.
MJ: Captain Callahan, also satisfied with the drafting of the
mistake of fact instruction?
IMC: Yes, Your Honor.
MJ: Very well. Let's skip forward to Page 10, unless counsel
wish to discuss the instructions preceding that. Prior inconsistent
statements, were there any other prior inconsistent statements
concerning the witnesses aside from Lieutenant JG Wiggan? Lieutenant
842
Commander Messer?
TC: The Government's aware of none, sir.
MJ: Captain Callahan?
IMC: May I have a moment, sir?
MJ: You may. There may be some contradiction, but it may not
rise to a prior inconsistent statement.
IMC: Yes, sir. I believe contradictions, but no other prior
inconsistent statements.
MJ: Very well. Character for truthfulness and untruthfulness,
character for--bad character for truthfulness as to NC1 and Lieutenant
JG Wiggan. Anyone else?
TC: Sir, I'd ask that you change NC1 to NCC.
MJ: Correct, as she's testified here. Thank you.
Okay. Aside from those two witnesses, any other witnesses?
IMC: Sir, I'm sorry. Did anybody testify to Wiggan's bad
character for truthfulness--to Lieutenant JG Wiggan's? I don't recall
that. I might have missed it, but I don't recall anybody addressing
his character for untruthfulness, just that Captain Noel addressing
his character for truthfulness. And certainly the Government put him
through a vigorous cross-examination, but I don't recall any other
witness coming in and testifying, in their opinion, his character is
untruthful.
MJ: Lieutenant Commander Messer, what testimony would support
such an instruction concerning Wiggan?
843
TC: Lieutenant Commander Moninger, in his prior inconsistent
statement said that--contradicted him on the--well, I guess that's a
contradiction as far as the adultery.
MJ: Yeah, that wasn't developed I don't think as bad character.
TC: On that note I'd like to know what's the evidence on Chief
Lewis-Wiggan's untruthfulness.
IMC: I actually did present that through her husband that, in
his opinion, she had character for----
MJ: And she could say anything--if she wanted to get something,
she would say anything to that effect.
IMC: Yes, sir.
MJ: Yeah, I recall that testimony. All right. I'll strike
Lieutenant JG Wiggans, unless you've got some specific testimony you'd
like to offer.
TC: Sir, I'd like to take a moment to think about that. I
think this is an important issue.
MJ: Very well. I'll give you that moment.
And my plan is not to finalize these instructions but to
give you a good feeling for what they will be so you can craft your
arguments appropriately. Then we'll take another recess and I will
actually prepare the final version of the instructions that I will
give to the members. But again any substance, I will ensure you have
the benefit of before you argue.
Line 10, Page 11, I think I'm going to again change that to
low or poor military character. I think that was the essence of the
844
prosecution's rebuttal evidence.
Did I get the judicial notice correct, counsel? I tried to
incorporate those from the appellate exhibits that were submitted to
the Court. Lieutenant Commander Messer?
TC: Yes, sir, I believe so.
MJ: Very well.
TC: Sir, that instruction goes back with the members?
MJ: Well, my practice is essentially I am required to give them
these instructions orally, but when I do that I provide them each a
copy as a read-along. They can make notes or comments as I go through
them.
TC: Sir, I'm referring to section----
MJ: Oh, will they actually receive that, no, they will not as
an appellate exhibit. They will receive what is reflected in this
instruction--in these findings instructions.
TC: Yes, sir.
MJ: Okay. Any further thoughts concerning lesser included
offenses, variance or exceptions and substitutions? Either side
desire to urge the Court adopt those sorts of instructions under the
circumstances of this case?
IMC: The Defense does not, sir. I don't think there was any
evidence raised that could really be argued for any variances or such,
sir.
MJ: Lieutenant Commander Messer, any LIOs that you felt were
developed that should be instructed upon?
845
TC: No, sir. The only variance would be the date of the false
official statement which is the 23rd vice the 21st. You know, the
Government's obviously comfortable that it's "on or about," but I
think the--there could be some confusion with the members.
MJ: Well, I believe the element is going to be on or about. It
could be fairly encompassed if we do add a variance; then I'd have to
add an instruction and also change the findings worksheet. I'm not
sure that would be more confusing or more helpful to the members. So
your call, counsel, if you want to----
TC: Sir, we'll leave it as is. I'll address it on close.
MJ: Very well. Aside from the requested instructions and all
the matters we've discussed at this point, do counsel have any further
requests for instructions or additional tailoring that we have not
already discussed?
IMC: Defense does not, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Sir, I didn't see here. Did you include the accomplice
testimony section?
MJ: I did. It's under credibility of witnesses on Page 10,
Lines 17 through 27.
TC: Yes, sir.
MJ: Actually through 32.
So aside from the one matter concerning prior inconsistent
statements, are there any other requests for instructions from the
Government or objections not already noted to the proposed
846
instructions?
TC: No, sir.
MJ: Very well. Then you can rest assured that I will instruct
the members as reflected in Appellate Exhibit LIII, and the only issue
I believe that's still open is prior inconsistent statements
concerning other witnesses, or is it----
TC: No, sir. Character for untruthfulness.
MJ: I'm sorry. Thank you. Character for untruthfulness as
to----
TC: Lieutenant JG Wiggan, sir.
MJ: ----Wiggans.
TC: Sir, the Government is not sure whether that was inquired
into on the direct examination of Chief Lewis-Wiggan but was touched
on sufficiently or not. I know that I asked several questions along--
around those lines, her relationship with her husband, but I don't
know if I specifically asked a question as to whether she believed he
was truthful or untruthful.
MJ: I'll give you a few minutes to review your notes, if you'd
like. I'll look at mine, as well, to see if that was developed. At
this point I do not believe it was, but I am certainly open to
reconsideration on that matter.
Let me next discuss closing arguments. As I indicated to
counsel and to the members in front of counsel, I do not limit your
time frame. Obviously the members' attention and interest is the
factors to determine how long your argument should be.
847
Does either side anticipate use of demonstrative aids for
closing argument?
IMC: No, Your Honor.
TC: No, sir.
MJ: Very well. Has each side had an opportunity to review the
findings worksheet, Appellate Exhibit LII? And it was redrafted since
the first draft came out to reflect minor edits.
TC: Yes, sir. The only question I had was whether you want to
leave Charge V, the original Charge V as Charge V or change it to
Charge IV.
MJ: Well, I think we'll just leave it as it is. The members'
charge sheets have it listed that way and so long as it's clear. I
did indicate to them to cross off Charge IV and its Specification when
that was dismissed under R.C.M. 917. So I think just it will track
better if we leave it the way it is.
IMC: Sir, I believe it has four specifications listed under
Charge III.
MJ: That would be a mistake. I thought we made that change.
IMC: At least the copy--I'm not sure this is the most recent
copy, but the copy I have----
MJ: Yeah, I thought we made that change, but perhaps not.
TC: Not according to the copy I have.
MJ: Yeah, there was a----
IMC: Okay. I believe I have an older copy, sir.
848
MJ: Let me just double check to make sure. Three
specifications under Charge III and then the charge. So I think we've
corrected that, but thank you for bringing that to our attention.
Okay. With that modification, are counsel satisfied with
the findings worksheet reflected in Appellate Exhibit LII?
IMC: Yes, Your Honor.
TC: Yes, sir.
MJ: Other matters we need to address on the record before
counsel prepare and set up for closing argument?
TC: You were going to give me a moment to go through my notes
as to the truthfulness, sir. That's it.
MJ: Very well. If you'd like to argue that matter, I will
allow you some time.
TC: I'd like just five minutes to look through my notes, sir.
MJ: All right. Why don't we just reassemble at quarter to the
hour. Court stands in recess. Carry on, please.
[The session recessed at 1935 hours, 23 May 2008.]
[The session was called to order at 1950 hours, 23 May 2008.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time; the
members remain in the deliberation room.
During the recess, I provided to counsel Appellate Exhibit
LIV which is the most recent version of the findings instructions to
incorporate the discussions we had earlier. Counsel, these are the
849
instructions I intend to give.
I did want to revisit with you briefly, Lieutenant
Commander Messer, the issue of character for truthfulness concerning
Lieutenant JG Wiggan. Were you able to find some testimony that would
support such a character?
TC: Yes, sir, thank you. No, not direct testimony elicited
from the witness. We don't seek that to be added.
MJ: Very well. So then on Page 11, Line 2, I will delete
Lieutenant JG Wiggan.
IMC: Sir, also I believe under that, evidence was admitted as to
Lieutenant JG Wiggan's character for truthfulness, but I don't recall
evidence for the character for truthfulness being testified for Chief
Wiggan.
MJ: Lieutenant Commander Messer?
TC: I don't agree with that. I don't believe that he inquired
into Lieutenant JG Wiggan's character for truthfulness.
IMC: I did with Captain Noel, sir. It's one of the things he
testified to. Specifically, sir, I believe when I first started going
into it, Commander Messer objected to it. You allowed it. He said,
in his character--in his opinion, he had great, outstanding, something
along those lines, character for truthfulness and I recall he finished
it with something along the lines of and that's why he was my number
one Chief.
MJ: Lieutenant Commander Messer?
850
TC: Well, sir, I don't believe that was adequate enough to
establish an instruction on truthfulness.
MJ: He offered an opinion concerning then Chief Wiggan as
honest and truthful and very honest, so I concur with defense counsel.
"Evidence of good character for truthfulness concerning Lieutenant JG
Wiggan was also introduced." And I'll change the caption, "Character
for Truthfulness and Untruthfulness."
All right. For planning purposes, Line 1 on Page 11 will
read "Character for Truthfulness and Untruthfulness." Line 2 will be
"Evidence has been received as to NCC Lewis-Wiggan's bad character for
truthfulness." On Line 4: "Evidence of good character for
truthfulness concerning Lieutenant JG Wiggan was also introduced."
Line 5: "You may consider this evidence in determining the
believability of NCC Lewis-Wiggan and Lieutenant JG Wiggan."
Counsel clear as to the instructions the Court will give on
this issue?
IMC: Yes, Your Honor.
TC: Yes, sir.
MJ: Very well. Aside from our earlier discussions, does either
side desire additional instructions on findings or specific tailoring?
IMC: No, Your Honor.
TC: No, sir.
MJ: And aside from the objections already noted, are there any
other additional objections counsel for either side would like to
lodge at this time concerning the anticipated findings instructions?
851
IMC: Not from Defense, Your Honor.
TC: Nothing from the Government, sir.
MJ: Are counsel ready to present closing argument to the
members?
IMC: Ready, Your Honor.
TC: Sir, I'd ask for about five minutes in place just to finish
up my argument.
MJ: Very well. In light of the Court's modifications of the
post findings instructions, I'll give you till 2000 hours. Court
stands in recess. Please remain seated. Carry on.
[The Article 39(a) session recessed at 1955 hours, 23 May 2008.]
[END OF PAGE]
852
[The court-martial was called to order at 2012 hours, 23 May 2008.]
MJ: Bailiff, please ask the members to join our court.
TC: Sir, should I ask the court reporter. Do they want us
mic'd up for this if we're in the well?
MJ: Will you be able to hear them if they're not on walking
mics?
REPORTER: It would possibly be better if they could wear them.
MJ: It won't hurt, especially if you want some latitude in
moving about the well.
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the dinner recess are again present before the Court at this time, to
include all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Let the record reflect that I provided to counsel--both
counsel Appellate Exhibit LV which are the instructions that I intend
to give on the findings of this case.
Members, my apologies for the delay this evening. The
findings instructions, which you will receive later on, encompass
about 15 pages single typed space, so it took some time to get through
853
those with counsel. I endeavor that once we have done that, and we
have, that the proceedings will continue more efficiently.
Members of the court, you're about to hear an exposition of
the facts by counsel for both sides as they view them. Bear in mind
that the arguments of counsel are not evidence. You are advised that
arguments are presented to you by counsel to assist you in
understanding and evaluating the evidence introduced. You must base
the determination of the issues in this case on the evidence as you
remember it.
Lieutenant Commander Messer, you bear the burden of
persuasion. You may present your initial closing argument.
TC: Thank you, sir.
Members, at the start of this case, I promised you sex,
lies and manipulation. I think I delivered. I told you that the
accused, Lieutenant Commander Syneeda Penland, used those three things
as tools to intimidate and coerce NC1 Kimberly Lewis-Wiggan into
giving up her marriage with her husband. I further told you that she
embarked on a premeditated and a deliberate plan to do this. This
evidence has supported this.
Now, throughout the course of this trial you've heard the
word "adultery" kicked around a lot. There's been a lot of focus on
the salacious aspects of that. But I want you to remember, as you go
back to deliberate, this case is about a lot more than just an accused
who decided to enter into a sexual relationship with a married man.
This case is about an accused who is a Naval officer, much like
854
yourselves, and made very bad decisions, decisions so bad that they
rose to the criminal level and are considered conduct unbecoming of an
officer.
I'd like to read you a quote, and this is qualifications of
the Naval officer. "It is by no means enough that an officer of the
Navy should be a capable mariner. He must be that, of course, but
also a great deal more. He should be as well a gentleman of liberal
education, refined manners, punctilious courtesy, and the nicest sense
of personal honor." Now, that was said by John Paul Jones in 1775
and, of course, we now amend that to include "gentlewoman." But it
highlights a point. Being an officer in the Navy is a special thing.
It's a special privilege. It's not like being the general manager of
Wal-Mart or a mid-level executive at IBM. It's something more.
So, as you go back to deliberate, I ask you don't just look
at this as a case of someone sleeping with someone else's husband.
It's a case of much more. It's a case of a Naval officer who failed
to uphold her responsibility to those that serve under her and to
those that she works with, and she failed to follow the regulations.
Now, the judge talked to you about the findings worksheet.
That's going to be your road map as you try to navigate through.
You've heard all the evidence. You now need to know the elements of
the crimes; you need to take that evidence, fit it into the elements.
Vessels, if you will, each element is a vessel; you need to pack it
with the evidence. And it's my job to convince you that each vessel
has been filled beyond a reasonable doubt, and I'm going to do that.
855
I'm going to try to do that as quick as possible so that you can get
back and start deliberating.
But the findings worksheet is going to be your road map.
The judge is going to read that to you, and please listen carefully.
He's going to spell out each and every element of the crime. I'm
going to go through it with you now charge by charge. I'm going to
take the charges as they are on your cleansed charge sheet and we're
going to walk through them and I'm going to tell you the evidence that
fits into those vessels. So let's get started.
Charge I, unauthorized use of a government cell phone to
make personal phone calls. This is a standard orders violation.
Element one is that there was an instruction in place prohibiting it.
You know that there's the Joint Ethics Regulation. I've asked the
Court to take judicial notice of that; they have. Section 2-301
prohibits unauthorized use of government property. It further
explains that government property includes a government cell phone,
and an unauthorized purpose would be to make personal phone calls with
that phone. That the accused had a duty to obey that regulation. And
that from September to January 2007 the accused made personal phone
calls.
What evidence do you have before you of that? We presented
you the government cell phone records for that cell phone of the
period. You heard testimony from Chief Zogaib that that was a
business record kept by Verizon Wireless provided to her, that that
phone was issued to the accused in this case, that she was aware of no
856
one else who had access to that phone during that period. It wasn't
assigned to any other officers.
Further, you heard testimony from Mr. Brian Duffy who came
in and read the numbers off to you what were called and the tally, and
that tally was 72 calls to USS PRINCETON during that period, 58 calls
to Lieutenant JG Wiggan's three personal cell phone numbers, including
and then on top of that 10 incoming calls, but I'm not counting the
incoming phone calls, and four calls to USS MOBILE BAY. That's a
total of 134 calls on that government cell phone over a--from the
period of September to January 2007.
Now, we also heard testimony from Commander Masi. He told
you, as the Supply Officer/logistics officer for Navy Coastal Warfare
Group ONE, that the Supply Department had no business with any gray
hull on the waterfront, never mind USS PRINCETON and USS MOBILE BAY.
So you have to ask yourself the question if the Supply Officer is
saying they had no business there, why was the assistant Supply
Officer calling there 140 times during that period? It just doesn't
make sense.
Now, you don't have to find that 140 of those phone calls
were--or 134 of those phone calls were personal. You just have to
find that just one was. Or I don't know if we charged it as divers
occasions, just two, but you don't need to find every call was
personal. But again the mountain of--there's a mountain of evidence
that suggests that there were calls made of a personal nature, 134
phone calls, 72 to the USS PRINCETON and, of course, the 58 to
857
Lieutenant JG Wiggan's personal cell, again not explained. The
Government has shown you of a personal relationship between the two.
There's been no evidence that there was a professional need to warrant
that many phone calls to Lieutenant JG Wiggan.
Charge II, false official statement. The elements of this
crime, that the accused made a statement. We've heard testimony that
on the 23rd of February that a statement was made. You heard that
from Lieutenant Commander McCarthy, she was present at the meeting,
from Commander Masi, and Captain Sturges. They all told you the same
thing. The meeting was for a purpose because of a report from the
USS MOBILE BAY that a phone call had been made. The accused was
brought in to be warned not to make any more phone calls and she just
blurted out at the meeting, "I never called NC1 Lewis-Wiggan."
The second element, that that statement was false. We'll
we've had two key pieces of evidence to prove that that statement was
false. One, you heard the testimony of Chief Lewis-Wiggan on the
stand that told you how she was on duty that night. She was talking
to her aunt like she often does late in the evening and usually her
mother will call in and join them in a three-way call. A call came in
at about 2100 that evening. She heard the beep. She thought it was
her mom, so she enabled the three-way call. It wasn't her mom. It
was a person that said "If you're going to destroy someone's career,
do it right. I was your friend." Words to that effect. Chief Lewis-
Wiggan told you she knew who that person was. She knew who that
person was because she had had extensive conversations with Lieutenant
858
Commander Penland over the phone to that point; she knew exactly who
that person was and she hung up.
Now, in further support of that, we provided you the cell
phone records of the accused herself and, when you get those records,
feel free to look on your own. I encourage you and I expect you to do
that. On the date of February 21st at 2111, between 2111 and 2112
there are four calls placed to the cell phone number belonging to
Chief Lewis-Wiggan. She testified to that on the stand. She told you
that was her phone number. I showed you those phone records through
the Elmo and you can go back and review those on your own.
But we're certain that a phone call was placed from the
cell phone of Lieutenant Commander Penland on that evening to Chief
Lewis-Wiggan's cell phone. Now, there's a question that maybe someone
else made that phone call, but again Chief Lewis-Wiggan has told you
it was the voice of Lieutenant Commander Penland. And, of course,
there's--you have to ask yourself the question, if it wasn't the
accused, who would it have been? Who would have called and said those
types of things other than the accused. The evidence if overwhelming.
Three, that she knew the statement to be false. Well, when
she made the statement, you heard all three of the witnesses testify
that there was no question in their mind that the accused, when she
said "I did not make that phone call," meant that she did not make
that phone call. Further, we have the evidence that the call was made
from her phone, supporting that element.
859
And, finally, intent to deceive. Well, I offered you
evidence of a military protective order that was issued about a month
and a half earlier. This--although the military protective order had
expired and had no real direct bearing in this case, I thought it was
important evidence for you because it's evidence of notice. The
accused knew that she should not be calling NC1 Lewis-Wiggan. She had
to have known it. She saw the MPO. It's bad; don't do it. No one's
going to think that when the MPO expires, "Oh, I can just pick up the
phone and start calling again." No, of course. She's on notice. She
shouldn't be doing it. Time to move on. So that's important to show
you that when she was told did you--you know, don't call NC1 Lewis-
Wiggan, that instantly the guard went up and she said, "Oh, my
goodness, now I'm getting myself in trouble again. I didn't do it. I
didn't do it." So she had the intent to deceive. The motive was
there and that's the fourth element of the crime. She knew it was
wrong to call, but she did it anyway and then she lied about it.
Now, the Defense may argue a conspiracy theory here, that
somehow Chief--and this has been an underlying theme of theirs--that
somehow Chief Lewis-Wiggan is somehow, you know, out to get her
husband and then by default wants to get the accused also or has to
get the accused also to bring down her husband. Well, it wouldn't
make any sense with this charge. One, how is Chief Lewis-Wiggan going
to call herself? She would need to have an accomplice or someone else
to do that. And the dates work, the dates work well here. We know
that it was the 21st of February when the call was made; the cell
860
phone records don't lie. You've got three witnesses, a Captain, a
Commander and a Lieutenant Commander, that all tell you the meeting
occurred on the 23rd of February, two days later. So the numbers--or
the dates make sense. She makes the phone call. Two days later she
denies it, committing a false official statement.
Charge III, Spec 3. These are the three different conduct
unbecoming specifications. I'll take them in order Specification 1, 2
and 3.
Specification 1, that the accused called USS MOBILE BAY;
two, disrupted NC1 Lewis-Wiggan with a personal matter; and, three,
her conduct was conduct unbecoming of an officer and a gentlewoman.
Well, what evidence do we have in support of this specification?
Well, we have the phone records, and when you do the math on all the
numbers, you get 22 calls made to MOBILE BAY from either her
government cell phone or her personal cell phone or her home phone.
We have three sets of different records for the accused. We have her
home phone, we have her private cell phone and we have her government
cell phone. When you go through there and add up all the numbers,
you're going to get 22 calls made to USS MOBILE BAY from those phones.
Was--were these calls disruptive? Well, we've heard
evidence from Chief Lewis-Wiggan that they happened most predominantly
during the day while she was at work. She would be called away from
her duties. They'd say "Hey, we've got a Lieutenant Cmander, we've
got a Mrs. so-and-so, we've got someone on the line here." She would
leave her duties, she would come take the phone call. She further
861
testified that the fact that the accused initially identified herself
as a Lieutenant Commander and then she subsequently determined that
the accused was, in fact, who she was, a Lieutenant Commander, that
she felt an obligation. She was even counseled by her chief who told
her, "Hey, be very careful what you say to an officer. This is--you
know, no matter what the person is saying, this is an O-4. This is a
commissioned officer. You can't be going off on this person." So she
was very conscious of that, to the point where she would listen on the
phone, engage in these conversations when better judgment would have
suggested that you just say "Screw you" and hang up the phone.
And that underlines the central point of this whole court-
martial. When the accused first called NC1 Lewis-Wiggan, she didn't
say "This is Syneeda Finland." She didn't say "This is Mrs. Finland."
She said "This is Lieutenant Commander Finland." She changed her
name, but she didn't change her rank. Why do you think that was?
Because she knew if she represented she was a senior person, she was
going to get the attention of this E-6, and that's disruptive, and
that satisfies that element of the crime. And it goes to conduct,
too. Again, abuse of rank, using the rank to achieve something that's
wholly personal, goes to root of conduct unbecoming.
We heard testimony from PS1 Lee. He said that he could
tell there was something wrong with Chief Lewis-Wiggan, something
wasn't right with her, enough so that he asked her about it. We asked
Chief Lewis-Wiggan about that and, you know, she puts up a good face.
She says, "You know what, I try to keep my personal life personal, I
862
try to keep my professional life professional." That's what makes her
a good Sailor. That's why she made Chief Petty Officer.
But you can't deny the fact that this had to have an effect
on her. Her marriage is falling apart. All of a sudden she starts to
reconcile with her husband, things start to turn around, and then
these phone calls start. She told you on the stand she had no idea.
She knew her marriage wasn't well when she came back from deployment,
but she had no idea that her husband was cheating on her. And then
out of the blue these phone calls start rolling in just when her
husband comes back to the house to reconcile. You can only imagine
how that would affect her. So as to the prong that it was disruptive,
there's no question. These had to have been disruptive to NC1 Lewis-
Wiggan.
Specification 2 deals with the incident on board the
USS PRINCETON. You've heard the testimony of Commander Moninger. The
elements of that crime: That the accused wrongfully refused to leave
until she gained an audience with the CO or XO. I think what's
important to note on that element is that she didn't need to have to
be ordered to leave the ship; she had to refuse to leave. And the
evidence supports that in that she came on the ship, identified
herself as an O-4 and said "I am not leaving this ship till I see the
CO or the XO." Now, that's--those are--that's conduct that is
indicative of someone that is--you know, is senior in rank, that knows
the Navy and is going to manipulate it to their advantage. Do you
expect a petty officer or a junior Sailor would do something like
863
that, come on the quarterdeck and say "I'm not leaving until I speak
to the CO or the XO"? Absolutely not. And that's what got the ire of
the USS PRINCETON and that's what Commander Moninger testified to that
he thought was wrong with her behavior, the fact that she was making
demands on the ship just because of her rank, and it was disruptive to
the USS PRINCETON. They were a day before getting underway. There
was a mast going on. The Lieutenant Commander was forced to leave his
duties, come down and deal with the situation. And you can see the
motto of the PRINCETON throughout the way that Commander Moninger
talks about it is that "Hey, leave your personal business on the pier.
Don't bring it on the ship." And here he is having to deal with
someone's personal business taking away from the workday.
Specification 3, the wrongful distribution of the nude
photos of Lieutenant JG Wiggan. Now, there's a lot here. The
elements are that the accused wrongfully distributed nude photos and
that the conduct was unbecoming. Well, let's talk about element one;
the accused wrongfully distributed nude photos. Well, one, you have
to be convinced by the Government's evidence that the other woman, D
underscore OTH underscore WMN at hotmail.com was, in fact, the
accused.
So let's talk a little bit about that. What evidence did
we present to you that supports that? Well, I gave you Prosecution
Exhibit 14. Prosecution Exhibit 14 was an e-mail from the other woman
to [email protected] and it was entitled "Truth." And what's
remarkable about this e-mail, and I invite you when you deliberate to
864
look at it very closely, is that the end of the e-mail--and this was
sent on the 24th of December--is signed "God bless Sy." She actually
signs her name on this one and she puts a phone number where she can
be reached at (619) 271-7954. Well, you know from the phone records
that that is the home phone number of Syneeda Penland.
And, of course, it begs the question or the issue is going
to be raised most likely by Defense that, well, you know, this is just
Chief Lewis-Wiggan out to get Commander Penland; she wrote this e-mail
to herself. Well, you've got to ask yourself the big question here.
Does it make sense that a first class would go through all this
trouble to frame an O-4 and, oh, by the way, send e-mails back and
forth for a month and a half until she finally decides to add in the
first name of the accused and a home phone number? No. If Chief
Lewis-Wiggan were going to be framing Lieutenant Commander Penland,
the first e-mail that came in, which is "Seeing is Believing" and the
two nude photos, it would say from Lieutenant Commander Penland, you
know, here's my office phone number, look, it's me, it's me. I mean
that's how you frame someone. You don't do it as subtle as that.
What this is is that the accused was slipping up. She had
started out early on with being very careful, not even using her real
name when she called, using a fictitious e-mail address with the name
"the other woman" to add some injury to insult there, but being very
careful about identifying herself. Now, by the 24th of December this
has dragged on for so long the accused got sloppy. She put her own
name and her phone number on the message; definitive proof in my mind
865
that, in fact, that is Syneeda Penland who is the author of the other
woman e-mails.
The PowerPoint that was attached to that second the other
woman e-mail which makes the basis for this charge, Chief Lewis-Wiggan
testified that she's not real savvy with computers, but when she
uploaded that photo, she clicked on it and it opened and she moved the
cursor over the file, that an author block popped up and it said
"Syneeda Penland." She then went to a shipmate who said, "Hey, I know
a way you can check the properties." They went through and hit the
file button, went down and checked properties and popped up a window
and that was "Syneeda Penland." They then went and looked at the
lineal numbers or the officer roster for the Navy and were able to
find a Lieutenant Syneeda Penland.
That's a believable story. It also indicated how the
accused got sloppy there, again thinking she covered her tracks but
not quite enough.
Now, the Defense would probably have you believe that again
this is a big conspiracy and Chief Lewis-Wiggan manipulated that
author block; the author was someone else, herself, and she just went
in there and changed it to Syneeda Penland and said to her shipmates,
"Quick, quick, look at this, look at this." You know, it is possible?
Anything is possible. Is that reasonable doubt? Absolutely not.
You've heard Chief Lewis-Wiggan on the stand, you've heard her
testimony. You know that she's telling the truth. You know she's
credible. There's nothing that suggests that she would go to that
866
length to try to wrongfully incriminate or wrongfully have this person
charged with a--it's just not there.
The motive was there on the part of Lieutenant Commander
Penland and that follows up with the "Let's say" memo and that is the
e-mail that was Prosecution Exhibit 10 sent on the 29th of September
and then the Word document that was attached to it. And you heard
Mr. Duffy come in and testify to you that he did the property search
on this Word document and it was authored to Syneeda Penland, too.
And, you know, what's interesting about the "Let's say"
document, it's one page, it's addressed to Mark. It's not signed by
anyone. But, you know, end of the second paragraph, "I was very
careful with what I said in the e-mail that I sent not to incriminate
anyone," and she goes on and just says "Let's say" and she goes
through a whole hypothetical of where there's one spouse who wants to
divorce another spouse, but the other spouse isn't willing to go along
with it. Let's just say how we handle that. And she says "We'll not
bring any incriminating evidence upon ourselves. The spouse took
several pictures to substantiate the hoax allegation but wanting to
convince the other spouse not to agree to the divorce."
So she just lays out--this is like a blueprint of exactly
what her and Lieutenant JG Wiggan were going to do. It wasn't enough
just to do it. She had to gloat about it and write it in the message
and send it to her co-conspirator, Lieutenant JG Wiggan. She even
uses in the second to last paragraph the term "the other woman."
After she had entitled her e-mail address after that, she uses "the
867
other woman" again in the e-mail, indicating that whoever wrote this
was also responsible for creating the e-mail address. She finishes up
by saying "I know it's wrong to deceive someone, but it is also wrong
to attempt to force someone to remain in a relationship they no longer
desire to be part of."
Again it matches perfectly with what Chief Lewis-Wiggan
told you on the stand. She was trying to make things work in her
marriage. Her husband was bouncing back and forth, didn't know if he
wanted to be married, you know, couldn't decide if he wanted to get
divorced, and Commander Penland said "You know what, I need to step in
and make this happen," so she did. She became the other woman. She
called up Chief Lewis-Wiggan at work and she put her plan into effect.
And, finally, the adultery, a lot of evidence on adultery.
I know you're going to look at all of it. The elements of this crime:
wrongfully had sexual intercourse; with a person who was married to
another, the second element; the third element, that there was--it was
prejudicial to good order and discipline or service discrediting.
The first factor, wrongfully had sexual intercourse.
You've seen the pictures. I don't intend to show you the pictures
again, but you know what surrounds those pictures. You heard the
direct exam of Chief Lewis-Wiggan, how she described the pictures.
She identified her husband's genitalia. She identified her husband's
torso. She identified the back of her husband's head. She identified
her husband's arm and the PPD or typhoid shot scar there with the mole
below it. She further went on to say how the one time that she met
868
Commander Penland at the restaurant that she had on big red nails like
that, she even noticed it. She noticed the tattoo of Lieutenant
Commander Penland. And then she explained to you in the photos why
she believed that's who it was.
I think the one photo I would show you and it's a non
graphic one is this one right here and it's very telling to me because
you had the opportunity to see Lieutenant JG Wiggan step down from the
stand and show you that. And you also had your opportunity to observe
him on the stand and how he reacted when I showed him these photos,
not just this one but the other ones. You know, confronted him and
said, "Hey, what about this mole on the penis here? That's a fairly
large mole. You know, is that yours?" He didn't deny it, but he
didn't agree to it either. He just kind of thought, well, if I just
kind of slime around up here for a while, maybe it will go away.
Well, it's not going to go away. Of course he knows that that's him
in the photos.
And when I finally get him on something like this where,
you know, he can't--he can't wiggle one way or the other, he changes
his story. "Oh, well, yeah, there were some photos in those other
photos that my wife and I had taken." And that's a theme you see with
Lieutenant JG Wiggan throughout his cross-examination. As soon as I
would nail him down on something, he would change his story again to
accommodate him. So he couldn't wiggle anymore on the photos. Yeah,
that's him in the photo there. "Who's that person you're with?"
"Well, its my wife." "Well, are you sure it's her?" "Well, I'm not
869
really sure." You're not sure it's your wife?" "Well, you know."
And then okay, let's buy your story it's your wife. "How did those
photos get on--get it--mixed in with the photos of Lieutenant
Commander Penland?" "Oh, well, my wife and I took some photos and,
you know, my wife must have had them and put them at me." He just
keeps backing up his position to try to make sense of it all when you
know what the reality is.
The reality is is that he and the accused had a sexual
romp; they took photos of themselves. He saved those photos for
whatever reason, put them on his personal laptop computer, and his
wife found them. She copied them to her own computer or to her memory
stick and then went and confronted him about it.
This story that he somehow was taking pictures of the
wounds, that's very convenient, too. "Well, I was actually taking
pictures of wounds that my wife inflicted on me." Well, where are
those pictures? Why weren't they on the computer? We haven't seen
those. You know that they allegedly existed because his attorney came
in and said, "Yeah, he gave me photos, printouts of them." But when I
pushed him to know where those photos were, he didn't remember. He
couldn't tell me. He couldn't explain how he could have downloaded
the photos off of Lieutenant Commander Penland's camera and not
noticed these graphic sexual photos that got downloaded in the same
process. I mean, it just doesn't pass the sniff test. It's just not
credible at all. It doesn't make any sense.
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I mean, one, it doesn't make sense that he would even be
borrowing Lieutenant Commander Penland's camera, and that calls into
question the whole nature of their relationship, and we'll get to that
in a little while with the housesitting and the key and everything.
But even if you can buy the story that he's somehow borrowing the
camera and then he's claiming, well, he took the pictures at her house
and downloaded them there at the house, I mean, he keeps changing his
story over and over again and I--I don't intend to beat this to death.
I know you can work through the logistics of it in your own mind. But
I just throw it out there for the proposition that these are credible
photos.
The story given by Chief Lewis-Wiggan as to how those
photos were found makes sense; it's a credible story. And it makes
sense that the people in those photos are the accused and Lieutenant
JG Wiggan.
There was no question that there was sexual intercourse
during the periods prescribed in this case. And that is an issue.
Okay. So you've got photos, but there's no date on those photos. How
do you know when these two were involved sexually? Well, what we do
have is some good e-mails, Exhibits 15, 16 and 22--I'm sorry--15, 16
and 19 that talk about pregnancy. Well, we all know that you can't
get pregnant without having sexual intercourse. Prosecution Exhibit
15, "Mark is perfectly aware of my pregnancy and he and I spoke about
it last week after I provided him proof." This is the other woman
e-mailing Lewis, Kim. The date of this e-mail is January 1st. So on
871
January 1st the accused is claiming that she's pregnant with Mark
Wiggan's baby. That squarely puts sexual intercourse during the
period of September to January--September '06 to January 2007. In
fact the NCC told you about two different pregnancy scares, one in
early mid October and then another around the holiday period.
We have another on the 5th of January, this one from
Syneeda Penland at BlackHeaven. So she doesn't even use--she stops
using the other woman e-mail address and just jumps over to her
address that's in her name, [email protected] under the name
Syneeda Penland. "Mark is aware of his responsibility and will own up
to it when the time comes. In the meantime, I don't have any more
energy left to spend on trying to fit him into my ideal mold of a
perfect guy because he's already in that. He has a responsibility and
he needs to own to it." More talk of pregnancy.
And then probably the most telling e-mail is the one from
[email protected], who Lieutenant JG Wiggan's acknowledged that
was his Yahoo account, to Syneeda Penland at BlackHeaven01@Yahoo. It
says "Happy New Year. Hope your Christmas was well spent. This
e-mail is in reference to our child. Let me know the due date and how
you are doing." Now, Lieutenant JG Wiggan tries to explain this away
by saying, "Well, my wife had access to my account. It must be her
that--she didn't have my password, but she must have guessed my
password." "And what is that password?" "Oh, well, it's my wife's
name and her last four of her Social Security number." Okay. Well,
yeah, sure. I mean, Lieutenant JG Wiggan has no credibility. Now
872
he's just tailoring the testimony to fit his story as best as
possible. This e-mail was sent from Lieutenant JG Wiggan to Syneeda
Penland and that was forwarded on to Lewis, Kim this time by Syneeda
Penland.
So you can see how in this case you have both sides trying
to play off of NC1 Lewis-Wiggan. It's not just always the accused
trying to convince NC1 Lewis-Wiggan of something. Sometimes her
husband is doing the same, and she's kind of caught in the middle of
this tug of war. But, anyway, more evidence of a pregnancy.
So when Chief Lewis-Wiggan takes the stand and talks about
two different pregnancy scares, she's just not making it up. There's
evidence to support it, more evidence to support the January pregnancy
scare, but every bit to believe that there was also a pregnancy scare
back in October. And again, you don't get pregnant without having
sex. That is evidence that there was a sexual relationship and in
addition to everything else.
And, finally, of course, the phone calls, hundreds of phone
calls from personal phones of Commander Penland to the personal phone
of Lieutenant JG Wiggan, the government phone to Lieutenant JG Wiggan,
you know, every iteration. You don't make that many phone calls
unless you have a very personal relationship. I know that a number of
phone calls doesn't indicate that people are having sex, but it's very
strong circumstantial evidence that this was a very close
relationship. You're going to be able to sense it, when you read
through all the e-mails, you read through the back-and-forth of these
873
things, this is not a relationship of a mentor/mentee. This is a
relationship of two people that are very, very personal.
And, you know, it's backed up by the fact that he has her
house keys and, you know, they recognize that these are all
problematic things to the case. You know, Lieutenant JG Wiggan is not
a stupid guy; that's for sure. He tries to come up with answers for
everything. He knows I'm going to ask him about house keys because I
know about the house keys. You know, "Why do you have Commander
Penland's house keys?" "Oh, well, you know, I was a house-sitter."
Okay. I showed him pictures of a house. You know, I don't know whose
house that is on those photographs. I have no idea. I've never been
to the accused's house. I've never been to the Wiggans' house. I
have absolutely no idea.
But, you know, I have the ability on cross-examination to
kind of play a little bit of a game. So I asked him. I say, "Oh,
that's Commander Penland's house, isn't it?" Well, you saw him. He
was like, "Uh, I'm not sure." Because, you see, he's outside of his
box, he's outside of his comfort area. He doesn't know what I know.
And, you know, that tells you right there that he is not being sincere
with you, he's not being truthful with you. You know, he tells you he
had been a house-sitter, that he had done all these things, but then
he can't even identify the house. We don't know where those photos
were taken. We don't know what was going on, if it was a hotel room
or someone else's house. But, you know, his story doesn't hold water.
If he's staying at this house, taking care of it, he's going to
874
recognize it in a photo, he's not going to be vague like that.
The evidence from Chief Lewis-Wiggan, the testimony, she
goes to the quarterdeck after she comes back from deployment, her
husband's quarterdeck on the USS PRINCETON. The Petty Officer of the
watch says to her "You're not the MPA's wife." You saw her reaction.
It's a bit comical in a way, I mean, in a sadistic way. You feel very
sorry for her. "You're not the MPA's wife. The MPA's wife looks
completely different." Well, that's because up until that point
Lieutenant JG Wiggan had been holding out the accused as his wife.
The person on the pier, the Sailor on the pier stops them and says,
"Hey, your husband's up in San Francisco, been cheating on you," and
uses some kind of slang or whatever to describe. But, you know, a
junior Fireman coming up to a First Class on the pier, I mean, how
humiliating, how embarrassing.
And this is very key to the last prong of--well, I should--
I should address the second prong quickly. They have to be married to
another. You saw the wedding certificate. You had the lawyer come in
today and tell you they were divorced as of today. So from March
16th, 2001 until today the Wiggans were a married couple. The
Government has established that.
Now, there will also be an issue that there is a defense
here that if the accused believed or had a reasonable belief that
Lieutenant JG Wiggan were divorced, that that is a defense, a defense
to the crime of adultery. Well, the amount of the--the abundance of
evidence is out there that she knew exactly that--knew exactly that
875
this was still a valid marriage; that's why she put her plan into
effect. So you need not give that defense any weight at all as you
deliberate.
But what I really want to talk to you about and spend some
time on, and I'll try to be as quick as possible, is this good order
and discipline--prejudicial to good order and discipline, service
discrediting, because that is what makes this crime very unique to the
military. A lot of criminal codes do not have adultery on their
books. The Uniform Code of Military Justice does. But it has this
service discrediting, prejudicial to good order and discipline prong.
And the judge, when he reads you his instructions, is going
to read you this paragraph. He's going to say: "In determining
whether the alleged adultery in this case is prejudicial to good order
and discipline or is of a nature to bring discredit upon the armed
forces, you should consider all the facts and circumstances offered on
this issue, including, but not limited to," and there's a whole
laundry list of things. These are factors that are either cut in
favor of it being service discrediting or they're factors that kind of
favor it not being, and I'd like to go down through some of these
factors. But actually, before I do that, I'd like to back up a little
bit to the issue--that's service discrediting. I'd like to back up to
the issue of prejudicial to good order and discipline.
Prejudicial to good order and discipline, he'll read you
the definition. It's an obvious and measurable divisive effect on
discipline, morale, cohesion of a military unit or organization that
876
has a clearly detrimental impact on the authority, stature or esteem
of a service member. That kind of cuts with what I told you earlier
about going to the quarterdeck and the quarterdeck Petty Officer of
the Watch is like "You're not his wife," the Fireman stopping you on
the pier saying "Hey, I saw your husband up in San Francisco, he was
having fun." That goes to prejudicial to good order and discipline.
This is a service member who is married to Lieutenant JG Wiggan and
because of this she's affected; there's no question. So I would argue
for prejudicial to good and discipline.
But, in any event, let's talk about service discrediting,
the factors. I'm just going to go down quickly through some of these
factors I think are very important for you to consider. One, the
military status of the co-actor's spouse. Well, in this case the
spouse was NC1--then NC1, now NCC Lewis-Wiggan. She was in the
military. That's a very important factor as to service discrediting.
The impact, if any, of the adulterous relationship on the
ability of the accused, the co-actor or the co-actor's spouse to
perform their duties. You've heard testimony from PS1 Lee, from
NCC Lewis-Wiggan herself this was very difficult. This whole episode
was very difficult for her.
The misuse of any of government time or resources to
facilitate the commission of the adultery. Well, we have lots of
phone calls. You can see the times of those phone calls. A lot of
them are during the workday. I think it cuts in favor of that.
877
Whether the adultery persisted despite counseling or orders
to desist. You heard testimony here in rebuttal that Lewis-Wiggan--or
that Lieutenant JG Wiggan was counseled by his command because of
this.
The impact of the adultery, if any, on the units or
organizations of the accused, co-actor or co-actor's spouse has
detrimental effect on morale, teamwork, efficiency. We talked about
that.
You're going to see an instruction now that cuts in the
other way. If the accused--or excuse me. If the co-actor or the
spouse, as Lieutenant JG Wiggan and NC1 Lewis-Wiggan were physically
separated or living apart.
Now, I suspect Defense is going to try to make a big issue
of this and say, "Hey, look, this isn't service discrediting. They
were already getting divorced. They had already started separating
their assets. This thing was just a formality until the Family Court
can finally act on the divorce. There was no harm, no foul here."
Well, that's not what Chief Lewis-Wiggan told you. She told
you that they had started to reconcile in mid September. She had told
you that her husband periodically would move back in with him [sic],
over the holidays he was living there. And he tried to downplay it.
He'd say, "Well, I would just sleep there or I would just stop by to
say hi or whatever." Who are you going to believe? Who was more
credible on the stand? Chief Lewis-Wiggan told you that she still
believed in this marriage until he attacked her on the 5th of June.
878
He was being accused of having gotten Lieutenant Commander Penland
pregnant. She says "Enough is enough. I want to divorce him." Up to
that point she wanted it to work.
So this idea that they were physically separated, living
apart during the period of the charged adultery somehow makes it non
service discrediting is absolutely--there's absolutely no merit to
that.
And then I talked to you a little about the defense to it,
that if there's a reasonable belief that Lieutenant JG Wiggan was
divorced or legally separated during--from NC1 Lewis-Wiggan during the
time, that that may be a defense. Well, nothing in the facts support
the notion that the accused believed that his divorce was final. He
knew--she knew he was married from her relations with him on the
STOUT; they served together. That's when NC1 Lewis-Wiggan and
Lieutenant JG Wiggan were married. You heard that testimony. Nothing
suggested that they would be divorced. In fact, that's why the
accused and Lieutenant JG Wiggan hatched the plan they did because the
first plan was, "Hey, Lieutenant JG Wiggan, when she comes back from
deployment, just tell her--give her the boot. Tell her you don't want
to be with her anymore and then we'll be together." Well, that didn't
work so well for whatever reason. She wouldn't either divorce him or
Lieutenant JG Wiggan wasn't being persistent enough. So then they had
to go to Plan B which was the other woman coming in and trying to take
care of business.
879
So those are the elements of the crimes, the offenses
before you.
And I would just close, at the beginning I told you this is
a puzzle. You're going to get all the puzzle pieces and you're going
to put it together. I believe that you should be able to put it
together now and you should get a picture of someone who overstepped
their boundaries.
This is not just a personal matter that the Government is
picking on the accused and making an example of her and pulling her
into court and beating her up.
This is someone who took a personal matter and made it a
professional matter. She used her rank to try to intimidate and
coerce a junior personnel. She used her knowledge of the Navy, she
used her knowledge of the system to try to get what she wanted. You
know, the problem was that Chief Lewis-Wiggan got in her way and she
was going to get rid of her at any cost. Well, that cost was that she
violated the Uniform Code of Military Justice on several occasions.
You need to hold the accused responsible. You need to find
her guilty of all the offenses. Thank you.
MJ: Captain Callahan, your argument on the merits of this case.
IMC: Sir, if I may request about a five-minute recess for a
bathroom break before----
MJ: Very well.
IMC: ----Defense closing.
880
MJ: Members, if you would cover your notes. Subject to my
standard instructions not to discuss this case and so on and so forth,
if you would please depart the courtroom and reassemble at, oh, 2100
hours. Court stands in recess. The members may depart.
BAILIFF: All rise.
[All persons did as directed, and the members withdrew from the
courtroom.]
MJ: Court stands in recess. Carry on, please.
[The court-martial recessed at 2055 hours, 23 May 2008.]
[The court-martial was called to order at 2106 hours, 23 May 2008.]
MJ: Bailiff, please ask the members to join our court.
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: The court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Captain Callahan, your argument on the merits of this case,
please.
881
IMC: Thank you, Your Honor.
A Navy Commendation Medal and a general court-martial.
Ladies and gentlemen, I could almost finish my closing just right
there and stop, but the question becomes why are these two cases
handled so differently. Why is one officer given a Navy Commendation
Medal and why is the other officer facing a general court-martial?
One officer gets a citation and an award in recognition of his work
and performance that will follow him for the rest of his life, and the
other officer they try and tack a criminal conviction on at a federal
court that will follow and haunt her for the rest of her life.
Ladies and gentlemen, the answer as to why is the
difference between Lieutenant JG Wiggan's command and Lieutenant
Commander Penland's command, Naval Coastal Warfare Group ONE, and the
difference is the supply issues, the IG complaints that she filed and
the equal opportunity complaints that she made.
Ladies and gentlemen, at the end of the day it doesn't even
really matter whether or not those complaints are founded. Personally
I don't know what I'd be more upset at, if somebody made baseless
accusations accusing me or if somebody was accusing me and discovered
me doing multimillion dollar contracting illegalities. Either one
would make me pretty darned upset. And, ladies and gentlemen, that's
what we have in this case.
Her command may have come in here and denied it, but just
the very fact they denied that that in any way affected how they feel
of her is dishonest. There is no way somebody could raise those type
882
of complaints against you, career ending complaints, and you not care.
Yes, you could come in here and sit down and testify that "I was
upset, she made those complaints, they're not true and I'm upset with
her. But I'm an officer in the United States Navy and I don't lie and
this is what happened."
That's not what those officers did. Those officers came in
here, swore to tell the truth, the whole truth and nothing but the
truth, sat in that chair and told a bold faced lie that it didn't
affect them, that they didn't care. Ladies and gentlemen, that simply
does not make sense, and the performance of Lieutenant Commander
Penland bears that out.
You heard the testimony in here of Commander Milner. You
heard the testimony of Captain Noel. You heard the testimony of
Captain Johnson. This is an outstanding officer. This officer had
done great things for the Navy.
You heard the specific testimony of Captain Johnson about
how he relied on this officer, as his Supply Officer, to keep him out
of trouble, that this was an area he identified, as the Commanding
Officer, where Commanding Officers could get in trouble through supply
mishaps, through supply irregularities, and it was important to him
that he had a good officer and he had that good officer in Supply
right there.
An officer doesn't serve 18 years honorably in the United
States Navy, show up at a new command and go from being a great
officer to being the worse officer ever served with. It simply does
883
not happen. She didn't go from being great with those other three,
showed up at Naval Coastal Warfare Group ONE and now she's the
biggest, you know, bag of dirt to ever put on a uniform.
So again why did Commander Masi come in and testify to
that? Commander Masi came in to testify to that because he has an axe
to grind with Commander Penland. He came in here and testified to
that because he's upset with her. From the very beginning there were
issues between the two of them as to who was the Supply Officer. You
can tell from his testimony on that, very touchy on that subject.
Captain Sturges came in here and he testified he considered Commander
Penland to be the Supply Officer. It was obviously very important to
Commander Masi who had that procurement authority. Was he just the
Logistics Officer or was he also a Supply Officer? And he was upset
that Commander Penland was challenging him on how he was signing off
and how he was dealing with these contracts.
Again, it doesn't matter who was right. It doesn't matter
if Commander Masi was right, it doesn't matter if Commander Penland
was right for purposes of this court-martial. What matters is that
Commander Masi was upset about that and so now Commander Masi changes
his testimony, he comes in here. His personal bias colors what he
says. That's why this is now the worst officer he's ever served with
in the United States Navy.
There's no change in performance from more than 18 years of
honorable service. The testimony of the commander and the two
captains, that's who Commander Penland is. That's who Commander
884
Penland has always been. That's who Commander Penland was when she
was at Naval Coastal Warfare Group ONE. The difference wasn't that
her performance changed. The difference was these allegations that
she raised against the command and how these allegations affected the
command.
So, ladies and gentlemen, that is why the officer gets the
Navy Commendation and that's why the other officer gets a general
court-martial.
I'd like to go into some of the specifics on some of the
charges.
First of all, dealing with the adultery: Ladies and
gentlemen, at the end of the day the Government bears the burden of
proving its case beyond a reasonable doubt. This is a very high
burden. This is not captain's mast, a non judicial punishment
proceeding. This is not a board of inquiry. This is a court-martial,
it's a criminal court, and it has a higher standard of proof and the
reason for that is because of the drastic and serious consequences of
a criminal conviction.
Ladies and gentlemen, you heard the man she supposedly had
this affair with come in and he testified and he testified
consistently throughout his entire cross-examination that he did not
have an affair, that there was no sexual intercourse between him and
Lieutenant Commander Penland. Ladies and gentlemen, at the end of the
day you may not believe him, but the burden is not on the Defense.
The Defense does not have to disprove the adultery occurred. The
885
Government must prove beyond a reasonable doubt that it did occur.
And when you've got an officer of the United States Navy that comes in
here, raises his right hand and swears it did not happen, ladies and
gentlemen, if that's not reasonable doubt, what is reasonable doubt?
The Government relies on a lot of pieces of paper to try
and prove its case on all these supposed e-mails. There's no proof
that these things even were e-mails. There were papers brought in
here to court that she said were e-mails. Were those things actually
ever e-mails or were they generated on Microsoft Word? There's no
proof of that.
Think of all the things that the Government went and dug
into in this case, think of all the records that Commander Messer
subpoenaed and brought in before you. He's got his own civilian
private investigator working for him, coming in and investigating
things. This is the United States Navy versus Commander Penland.
He's got the weight of the United States Navy, and what does she have?
She's got me, a junior Marine officer assigned to defend her and, on
that note, I am proud to be here in court and defend her.
And, ladies and gentlemen, the Government didn't prove
those were actually even e-mails. So at the end of the day what are
they? They're pieces of paper. But even if they were e-mails,
there's no proof those accounts belong to Commander Penland. Those
accounts could have belonged to anybody. Those accounts could have
belonged to Chief Lewis-Wiggan. There was no subpoena brought in,
like with the phone records, from Yahoo saying this account at
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Yahoo.com is Syneeda Penland's. There has been no proof whatsoever
introduced in court that those e-mail addresses belonged to her. And
again, the Government bears the burden of proof. The Government did
not do that.
Again on to Lieutenant JG Wiggan, Lieutenant JG Wiggan's
Executive Officer came in here testified that he admitted to the
affair. If he had admitted to the affair when--and just gone of his
own accord, admitted to his Executive Officer of the affair, why did
he then come in here in court and commit perjury? It does not make
sense. People do what they do for reasons, especially when you're
talking about officers in the United States Navy. Even if an officer
goes bad, an officer still has reason behind what they do. There is
no reason to that; it makes no sense. You don't come in and confess
to a crime when you have nothing on the line for it; and then when
you're on the line for a perjury conviction, talk about something that
will destroy an officer's career and not his career but his life, when
you're on line for a perjury conviction, you come in and lie about it.
It doesn't make sense.
If he would have confessed it to the Executive Officer, he
would have come in here and he would have confessed in court.
Suppose--nothing happened to him when he supposedly came in and
testified--or when he supposedly came and confessed it to his
Executive Oficer; he was given an informal counseling, hey, knock it
off. He was still given a great fitness report and an award on the
way out the door. So if nothing happened that time, what kept him
887
from coming in here and testifying to it again?
Ladies and gentlemen, I don't know why Lieutenant Commander
Moninger gave the testimony he did. There could be many different
reasons, but again the Defense doesn't have to explain why. That's
the Government's job. Defense only has to present reasonable doubt.
Again, another instance of reasonable doubt brings us on
the testimony of Chief Wiggan. Chief Wiggan's testimony pretty much
in every way imaginable is contradictory to her husband's testimony.
The one side, yes, they had an affair; on the other side, no affair.
On one side, he came and talked to me, confessed to me of the affair;
on the other side, no, he didn't. On the one side, he's abusing me,
he is beating me up; on the other side, no, she's abusing me, she's
beating me up. Again, on her side, you know, he's calling Commander
Penland and I'm taking the phone; on his side, I didn't call Commander
Penland. There's a lot of inconsistencies with her testimony.
And, ladies and gentlemen, I said at the beginning this was
about a scorned wife and it really is. She did not want that marriage
to end. She did not want it to be broken up. You heard from Petty
Officer Lee, her petty officer who came in and testified to that
effect, and she even admitted it. Now, she may have come on the stand
here and she may have put on a really good front and she may have
tried really hard to convince you, but at the end of the day that is a
woman that is extremely upset with her ex-husband and she is very
concerned about how she comes off.
888
And I think nowhere is that more evident than when she
talks about how she was supposedly beaten and abused. She claims that
her husband was drunk and that he choked to the point she practically
passed out. That's very serious. You're choking, you're laying on
the ground, you're seeing stars. How much more of a wake-up call can
you get than that? And then on top of it all she's laying on the
ground, she's being choked to the point where she's almost
unconscious, she's seeing stars and as the "I am going to kill you"
and what is going through her mind, "Well, I can't tell him to leave.
He's drunk. We can't have people driving drunk on the road." Ladies
and gentlemen, that's got to be the most self-serving statement I have
ever heard. Nobody thinks that. If I am laying on the ground being
choked out by somebody that's going to kill me, I'm thinking get this
guy off of me, get him out of here, get me out of here, call the
police, help. I'm thinking anything but about, oh, we're in the Navy
and we can't do DUIs.
Ladies and gentlemen, that's her entire testimony. Her
entire testimony is a built-up facade. That's simply not who she is.
Nobody is that. That's not a rational way to react when your life is
in danger. If that would have really happened, she would have called
the police, she would have ran out, she would have made him run out.
Even if she would have been concerned about him getting a DUI, she
could have still left, but, no.
She also testified about these photographs and her
testimony is that these photographs, she's found them on her husband's
889
computer. She put them on a thumb drive, put them on her computer,
confronted her husband with these photographs and then took them and
gave them to Commander Doud. And, oh, yeah, and along the way she
showed them to YN1 Cunningham, too, but she didn't show them to
anybody else.
Petty Officer Lee came in here and he testified that he saw
the photos. This isn't the type of thing that you're going to show
around if you're not vindictive and trying to justify and get back to
your point, and that's some minor little thing you forget about. He's
not in her chain of command, he's not superior to her. She had no
reason to be showing these photographs to him. He had no reason to
come in here and he had no reason to lie to you about being showed
those photographs. And I can assure something like being showed
photographs like that is not something you forget and that he's just
mis-remembering. She showed him those photographs. It's part of her
scheme. She didn't want to come in here and admit that in court today
because she would look bad, but the fact is she did.
And, ladies and gentlemen, the whole thing is just an ugly
divorce situation and, like in most ugly divorce situations, who's at
fault, where's the proof, it's difficult to see; and that's not proof
beyond a reasonable doubt.
Then it spills over into the phone calls and issues with
the phone calls. Who's calling who? Who's harassing who? There's
evidence of calls going back and forth in the thing. She freely
admits to calling Commander Penland, as well. On a note of phone
890
calls and such, it's interesting when I questioned Mr. Duffy about it.
And I ask, when you do go back, pay special attention to Prosecution
Exhibit Number 25; that is one of the later sets of cell phone records
that he brought in. And his testimony was that Prosecution 25 was
complete and accurate with everything it contained in it, the entire
cell phone records and that the billing cycle starts on January 1st,
but the phone calls don't start until January 9th because that's just
the way the cell phone company sent them; there must not have been any
before that. But when you look on it, there's a big empty space in
front of it. Why are those cell phone numbers down at the--halfway
down to the bottom where they begin? And why in the upper left-hand
corner does it say Page 8 of 15? Ladies and gentlemen, I wasn't
there, but the Government bears the burden of proof and that's what
they're bringing in as proof?
And it gets even worse when it comes to the command's cell
phone records. The command cell phone records are printed out by the
Chief, by Chief Zogaib and maybe by Commander Marshall, as well,
helping her. She can't remember. And they're slapped on with a
certificate of authenticity authenticating records that it's attached
with when those weren't even the records attached with that
certificate of authenticity. She testified she printed them out.
That's even worse than on all these. On all these Mr. Duffy came in
here and testified and he said, yes, we went in, we got a
certification, these are the records attached with the certification
and here's the certification. They didn't even get that right on the
891
government cell phone records, but they're presenting that as proof
beyond a reasonable doubt, that, to end the career of a Naval officer
with over 18 years of honorable service.
Back to Chief Wiggan's testimony. Chief Wiggan testifies
that she can identify her husband in all of those pictures. Even if
that really was her husband, yes, maybe in some of those pictures.
But it's getting a little out of control when there's not a single
part of her husband that she can't recognize. "Oh, yeah, that's
definitely my husband's stomach. He's the only guy in the Navy that
tries really hard to have a six pack but doesn't quite have it, so
that's got to be his stomach. Oh, yeah, that's the back side of his
head. That's his arm. That's his penis." Ladies and gentlemen, I
challenge you to think back yourselves to people you've known for a
long time. Could you identify an arm picture of them? I couldn't
identify a picture of my wife's arm; we've been married for seven
years. It's just not credible that in each and every one of these
pictures it doesn't matter the body part, she knows it's her
husband's. It can't be anybody other than her husband's. Again, if
she was going to come in here and testify credibly, she would have to
admit that some of those photos she can't identify. But the reason
she has to come in here and be adamant about them is because there is
simply no proof in those photos of adultery.
What's in those photos is exactly what Lieutenant Wiggan
testified to. There's some photographs of a sexual nature that
contain Commander Penland. If you look through, yes, you will see
892
those; there are some nude photographs of her. There are some
photographs that may be him and his wife. He and his wife took
photographs together one night; he was really drunk, he doesn't
remember. There are photographs that he has no idea what they are.
Maybe they're him and maybe they're his wife, maybe they're Commander
Penland and somebody else. Maybe they're two completely random people
that nobody knows. He doesn't know. He just knows they're not him.
Did his wife add them on? Yes. That's the only other
place they could have come from. But they're not his. She took those
photos and she was moving those photographs all around, all over the
place. She had more than enough opportunity to add in other
photographs with them.
And again speaking of the Government and their burden of
proof, they offered no evidence of any breast surgery had by Commander
Penland, one of the big things they rested on. "This has got to be
Commander Penland in these photographs. Look. Breast surgery."
Again subpoena power of the United States Navy. Do we have any
medical records brought in to show any sort of breast surgeries done
on Commander Penland? No. The burden is on the Government, not the
Defense. The Defense doesn't have to prove a negative. The
Government has to prove its case. It's saying this is her because
there's breast surgery. Well, then great, go get the medical records.
Why, if that's her and they know it's her, didn't they bring in the
medical records?
893
They're missing proof. They're missing important parts of
their case. This isn't--this isn't an admiral's mast where you just
put together some stuff and that's good enough. This is a criminal
conviction. It's got to be done right. It's got to be done all the
way. It's important. And that's not how it was treated.
Under the Part B of the adultery, as Commander Moninger
called it, ladies and gentlemen, at the end of the day even if you
determine that you do believe beyond a reasonable doubt that sexual
intercourse occurred between Commander Penland and Lieutenant Wiggan,
that does not prove the military charge of adultery. You still have
to have service discrediting conduct, prejudicial to good order and
discipline. And the testimony before you today was that they were
separated long before the dates on those charges of adultery and that
they even under oath signed and submitted papers to the court saying
they were physically separated. Is it a legal separation? No. But
it's an actual physical separation, we're ending the marriage, we're
ending the community for community property purposes, we're no longer
living together. Lieutenant Wiggan's testimony on that completely
contradicted his wife, but his testimony was supported by the court
documents.
Chief Lewis-Wiggan has got a problem there. One or the
other, she's lying. She's either lying when she comes in here and
says they weren't really separated back in, I believe it was early
March of 2006 when she put that down on the court documents and she
just put that down on the court documents because, yeah, they're just
894
court documents, or she was lying when she came in here in court today
and said they were not physically separated until after all these
allegations with Commander Penland surfaced. So either way there's
problems with her testimony.
But the bottom line is if you do believe that sexual
intercourse occurred, there's not conduct that falls under that Part
B. If conduct--if the sex occurred and there was an adultery charge,
who would that adultery charge belong with? It would belong with the
one that was married, Lieutenant JG Wiggan. The one that if the
adultery actually did occur came in here and perjured himself and lied
under oath to you. That's the one. If the sex occurred, that's the
one where the adultery charge under the UCMJ belongs. That's the one
where they've got evidence of it, not a Navy Commendation.
There becomes the issue then, as well, was he having
affairs with multiple women. As to the evidence, if you believe he
was having sex to potentially present, was he lying to Commander
Penland about the status of his marriage? Again, that was brought out
by Chief Wiggan, one of the Government's witnesses, and not even under
my line of questioning.
The Government argued that this was part of a scheme by
Commander Penland and by Lieutenant Wiggan to convince Chief Wiggan to
get the divorce. Ladies and gentlemen, you don't need that. It's a
no fault divorce. All you got to do is go in and get divorced. They
don't need her to consent to the divorce. This isn't a hundred years
ago. There's no reason for them to conspire and co-act together to
895
get Chief Wiggan to get this divorce. And if that was their point,
they did a mighty poor job of it considering the divorce had dragged
along as long as it did from how long it was filed to how long they
were actually divorced.
Ladies and gentlemen, I'd like to briefly address the other
charges, as well. Charge I, which is a violation of the Joint Ethics
Regulation. On a side note, I would be somewhat interested how many
phone calls made on government phones by the witnesses that came in
here and testified, but perhaps look not to be professional. The
Government added up all those phone calls and they say, yeah, there's
a whole bunch of phone calls here, but they're spread out over a date.
If you look, a lot of them, you'll see, are relatively close to each
other with what appears to have been no answer on them, one minute
duration down on the thing and every five minutes. That's not
somebody calling every five minutes for one minute; that's somebody
calling and either leaving a message or calling back.
You also have to consider the testimony that Commander
Penland is an active member of the NNOA and she was involved in
counseling other officers. There's a whole wide range of things that
are called and discussed and as part of professional mentoring. It's
not unusual among officers to have--when you have a more mid-level
officer, like a senior O-3 or a junior O-4, routinely calling and
talking and helping with O-1s and O-2s. Just the fact that there's a
bunch of phone calls made doesn't prove that this is a violation of
the Joint Ethics Regulation. Again, they need something more than
896
that. They need proof as to what these phone calls are. All they
have is these allegations.
In regards to the false official statement, again I've
already addressed the witnesses that came in and testified to that and
the reasons why they're testifying the way they're testifying. I'd
just like to point out that it was a long--the statement was made a
long time ago. Their memories are obviously not clear on it, even if
it did happen, because they're giving slightly different versions of
it. This also isn't the case where you have your standard false
official statement.
One of the things the military judge is going to address in
his sentencing is that you have to--or not sentencing, my apologies--
in his findings instructions is that there's a requirement of
knowledge and intent for these and that is normally seen with these
are what you normally have that will prove your knowledge of intent.
Somebody is called in, they're sat down, they're read their rights,
they're given a piece of paper and they're saying "Write your
statement." They write--you know, they know the seriousness of this,
they have time to think about it and they write out a lie. Bang,
you've got knowledge that you're making a lie, if not some sort of
spontaneous knee-jerk answer and you've got an intent to deceive.
You don't have that in this case. You have an immediate
calling in and saying "You called her" and then a "No, I didn't." You
don't have the reading of rights, you don't have the long sitting down
now. And again, that's even if you believe their testimony, and I'm
897
not suggesting that you should because it certainly doesn't amount to
proof beyond a reasonable doubt that she made those statements.
Under the conduct unbecoming an officer, ladies and
gentlemen, everything that an officer does that could possibly be
construed as not proper is not conduct unbecoming an officer.
There's--it has to rise to a certain level. I'm not sure how the
uniform regulations are in the Navy, but in the Marine Corps our
uniform regulations are a punitive order. If I'm wearing a pair of
trousers that's a quarter of an inch too long, have I now violated the
uniform regulation and punitive order, have I committed conduct
unbecoming an officer? I would certainly hope not. That's not what
they're talking about with conduct unbecoming an officer. It has to
be serious, gross misconduct that rises to the level of justifying a
criminal conviction for that conduct. None of these three things are
even alleging crimes out in the civilian world.
First of all, we're dealing with the alleged phone calls.
The testimony was that she'd call her maybe once or twice a week,
sometimes none at all a week. Maybe not the type of thing that you
want to see, but not the type of thing that raises to criminal
conduct. Sailors are routinely on the phone with other Sailors. Is
this now somehow criminal? Ladies and gentlemen, it doesn't rise to
that level. It may rise to the level of appropriate for counseling,
even rise to the level of being appropriate to consider when giving a
fitness report. But it doesn't rise to the level of criminal conduct
unbecoming an officer.
898
In regards to the charge dealing with the--alleging that
she wrongfully refused to leave the PRINCETON. There's no evidence
she refused to leave. Commander Moninger came in here and testified
that she was polite and cordial. She's not on there throwing a
ruckus. She's not there running around like a wild woman screaming
and hooting and hollering. He said she was polite and professional.
And when he asked her to leave when they were done, she left. No
scene, no hooting and hollering, polite and cordial. That's not
conduct unbecoming an officer. Maybe he didn't think it should be
handled that way. Maybe he thought she should have gone and talked to
somebody else before coming to talk to him. But she thought she had
thousands of dollars worth of jewelry and the ship was getting ready
to come underway.
I don't think that's unreasonable, as an O-4, to go and ask
to talk to other senior officers. Officers keep their stuff between
officers. You don't go air officer stuff places you don't have to.
She's got this complaint. She comes in and she's airing it through
other officers. It's not criminal. I would argue it's not even
inappropriate. Maybe, you know, they do things a little bit different
in the Navy than they do in the Marine Corps, but certainly not to the
level of that being criminal. That's a reasonable response when you
think you've had all that jewelry stolen.
And in regards to the photographs that she allegedly sent,
again no proof that e-mail address is hers. The photographs, yes,
they say under the author section under properties that they were done
899
by Syneeda Penland, but, as the Government's own investigator
testified, you can go in and type in changes to say whatever you want.
So that does not prove anything. And then even if you do believe that
that actually was Commander Penland that sent those photos, Chief
Wiggan's own testimony was that she said on multiple occasions "No
photos, no proof. You got it? Let me see it." It's not conduct
unbecoming an officer.
Ladies and gentlemen, at the end of the day, the Government
has not proved its case. All we've shown here is a very disparate
treatment on how one officer is treated and how one other officer is
treated, and no justifiable reason for that.
You've heard testimony of the many long years of service
that Commander Penland--honorable service that Commander Penland has
given to the United States Navy. I think it's somewhat appropriate
that this is falling right on the eve of Memorial Day when we remember
such things. It's appropriate to remember what she's done for her
country and the record that she's had, as testified by the witnesses
that came in and testified on her behalf. Ladies and gentlemen,
that's not somebody that would come in and commit all these things the
Government has said.
And there's only one appropriate thing to do at this point
and that's to come back with a verdict of not guilty on all charges
and specifications and release this officer, let her serve out the
rest of her career and enjoy her Memorial Day. Thank you, ladies and
gentlemen.
900
MJ: Lieutenant Commander Messer, do you desire to present a
final closing argument?
TC: Yes, sir.
MJ: You may proceed when ready.
TC: The Defense has gone to great lengths to try to convince
you that this should just be minimized regarding about--he starts out
with Navy Commendation Medal versus GCM. Well, what he's asking you
to do is the exact same thing that the CO of the USS PRINCETON did,
which said, "You know what, I've got a great MPA, he's doing his job,
I don't want to get involved, I don't care that there is a First Class
Petty Officer that's being victimized or I don't want to know." Maybe
he didn't have the whole story. Who knows. But it's up to you not to
do the same thing.
Now, this case is at a general court-martial. The Defense
has gone to great lengths to try to make this into a grand conspiracy,
this is Navy Coastal Warfare Group stacking the deck, railroading.
Well, you heard at the beginning of this court-martial this court-
martial was convened by Commander, Navy Region Southwest. That's the
CO of Navy Coastal Warfare Group ONE? No. This court was convened by
Rear Admiral Hering. Rear Admiral Hering reviewed these charges and
decided they were worthy of a general court-martial.
You, as members, are not here to decide whether or not this
conduct belongs at this forum. You, as members, are here to take the
facts, fit them into the elements, make sure the Government has met
its burden and then render a verdict. That is your job, and I'm
901
certain you're going to do that job, as you all are very senior
officers, you've been in the Navy, you understand that.
But please don't be confused by the smoke and mirrors that
Defense asserts to you and says, "Well, if Lieutenant JG Wiggan wasn't
punished, if he got off easy, you've got to let off my client."
That's absolutely absurd. The reason we have laws in the military,
that we have the Uniform Code of Military Justice is to hold everyone
to the same standard, and that's what you're expected to do here.
Interpret the elements of the crime, take the evidence and fit it into
those elements and render a verdict, and I'm confident that you will
do that.
Now, there's some talk of complaints. What bearing does an
equal opportunity complaint or an IG complaint have on the matters
before you? Absolutely none. You know, when I played hockey growing
up, I used to always have coaches and they'd always tell us, "Hey, you
know what, the best defense is a good offense. Let's just go on the
offensive. We'll score eight goals. If we let in six, we still win
the game." Well, you know, that's the attitude taken here by the
accused. I got out from Commander Masi, he told you, you know, none
of these complaints existed before the command decided to take action
against the accused. It was only after that they started
investigating her for these things that there was an EO complaint,
there was an IG complaint. Well, the best defense is a good offense.
Go on the offensive, start pointing fingers, implicate everyone in the
command.
902
You also heard with Commander Milner that he recognized
that the EO complaint had been unsubstantiated and that the accused
had appealed it.
Good military character. The Defense comes up here and
tries to argue to you that Lieutenant JG Wiggan is being truthful,
that he is an upstanding guy, never mind that--well, you saw him on
the stand. You make your own determination on that. But never mind
his XO, Lieutenant Commander Moninger, just got off his XO tour, in
every way an outstanding Naval officer, comes in here and tells you
that Lieutenant JG Wiggan told him that he had been involved in a
sexual relationship with Lieutenant Commander Penland. But then he
somehow suggests that Lieutenant Commander Moninger is the one who
perjured himself. No.
Lieutenant JG Wiggan came into this court and he made a
conscious decision. He thinks he's smarter than everyone. He thinks
he can come in here and wheel and deal and convince you and testify
and not have to sell out his friend, the accused, his lover, and tell
you stories. Well, you see right through it. Lieutenant JG Wiggan
perjured himself in this courtroom. There's nothing more to it. You
give his testimony absolutely no weight whatsoever.
The testimony of Chief Lewis-Wiggan. Again, you know,
Defense will try to go to great lengths to try to impeach her, do
anything they can to make her look bad. They just really can't. You
heard her testify. This is someone that was dealing with a personal
crisis, her marriage is falling apart and she's telling you the truth
903
on the stand. There's just nothing more to it. Her story matches
with every piece of evidence in this case.
And some notion from the Defense that this has all been
manufactured, a grand conspiracy, the Navy against Commander Penland
because she's a whistle blower, because we don't like her or whatever,
is absolutely absurd. What it is is what it is. It's exactly as I
described to you on opening statement.
Chief Lewis-Wiggan is telling you the truth. She's telling
you what happened. She's telling you what happened from her heart.
She's not making things up. She's not trying to fit things in, you
know, square pegs in the round holes like Lieutenant JG Wiggan. She's
just telling it to you as it is and it all fits together, it all fits
together.
A lot of talk on the adultery. I'm not going to go back
through the evidence. You know the evidence. You know the evidence
of all these charges.
But again the minimization thing, trying to argue to you
that the false official statement doesn't matter, Lieutenant Commander
Penland lied to the face of her O-6 CO. She lied to his face, and
that somehow isn't something that you should find her guilty of here
even based on the evidence or that's a crime not worthy of a court-
martial?
Again Naval officers carry--the term "Naval officer"
carries with it very special connotation. That's why we have these
very special crimes under the Uniform Code of Military Justice. You,
904
as members, you, as Naval officers, have a duty here today and that is
to uphold that oath, uphold the specialness, the value of being a
Naval officer. I know you will do that.
Please review the evidence carefully and render the only
appropriate verdict in this case which is guilty of all charges.
Thank you.
MJ: Thank you, counsel, for your arguments and presentations on
behalf of the court.
Members of the court, it is my intention, unless you have a
strong desire to press on this evening, to send you home and have you
return tomorrow to begin your deliberations.
For planning purposes, I will next provide to you my
instructions on the law that you must apply to the evidence of this
case in reaching your determinations. Typically my instructions will
take between 25 and 35 minutes to provide to you, after which you will
then be placed in your closed session deliberations for ever how much
time that they take.
With this information in mind, Captain Gentile, would you
like to consult your members to determine if they'd like to press
ahead this evening or return in the morning to continue these
proceedings?
PRES: I'd like to take five minutes to consult with them.
MJ: Very well. Members, subject to my standard instructions,
please cover your notes and you may depart on a brief recess.
BAILIFF: All rise.
905
[All persons did as directed.]
MJ: Court stands in recess. The members may depart.
[The members withdrew from the courtroom.]
[The court-martial recessed at 2146 hours, 23 May 2008.]
[END OF PAGE]
906
[The Article 39(a) session was called to order at 2151 hours, 23 May
2008.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, except for
the members who remain in the deliberation room.
During the recess, the senior member provided to the Court
a question which has been marked Appellate Exhibit LVI. The question
is a two-part question essentially asking if they can receive the
instructions tonight and then come back in the morning to deliberate.
My answer is that that is an option and I'm willing to do
that.
The second part of the question is time options in the
morning. I gather--I'm not sure if they want to start at 06 or 1000
hours or somewhere in between or later than that.
So my plan would be to invite the members to return at
0830, 900 or so, given the late hour tonight, and not much earlier
than that, unless they really have a desire to do so.
Counsel concur with the suggested course of action as I've
outlined here?
TC: Yes, sir. I'm flexible anytime, as long as the members--
whatever time is comfortable with the members is fine with me.
MJ: Very well. Captain Callahan?
IMC: The same thing, sir, although if it's, you know, a question
between 8:00 or 9:00, I would certainly request 9:00. I live out in
907
Lakeside; I've got a ways to go, sir. But again, if the members want
to come in at 06 in the morning to get it done so they can, you know,
go on with their holiday or whatever, I can get up early to go.
MJ: I don't suspect that's going to be their request, but we'll
do what we can to accommodate their schedules.
Very well. Counsel prepared to go for about another 30
minutes then so I can provide them the instructions on findings?
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: Very well. Commander Penland, are you up to another 30
minutes this evening?
ACC: Yes, sir.
MJ: Very good. Then that's what we'll do.
Any other matters we need to address outside the members'
presence on the record at this time?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. This 39(a) session is concluded.
Bailiff, if you would please ask the members to rejoin the
court.
BAILIFF: Yes, sir.
[The Article 39(a) session concluded at 2153 hours, 23 May 2008.]
[END OF PAGE]
908
[The court-martial was called to order at 2154 hours, 23 May 2008.]
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Members, in response to the questions outlined in Appellate
Exhibit LVI, with regard to the first question, I am certainly willing
to give you my instructions this evening and then you can return in
the morning to begin your deliberations. That was an option; I should
have offered that to you. And counsel have indicated to me that they
are prepared to continue, as well, this evening with the instructions.
With regard to the second part of the question, what are
the time options in the morning, I gather we could begin at 0600,
although, given the late hour tonight, that probably would not be very
prudent. I was going to suggest 0830 or 0900 reassembly, but I'll
leave that to a consensus among the members. Since I haven't finished
giving you my instructions, you won't know exactly what time you're
going to leave tonight and, therefore, what time you'll have to come
back in the morning.
909
Captain Gentile, do the members have a preference in terms
of a return time tomorrow morning?
PRES: Prior to your giving the instructions we thought 0800 the
time pretty much.
MJ: I believe we can accommodate that. Very well.
Bailiff, if you would please approach and provide a copy of
Appellate Exhibit LV to each of our members.
[The bailiff handed copies of AE LV to all members.]
MJ: Let me return Appellate Exhibit LVI to our court reporter.
Members, I've provided to you a written copy of the
instructions on the findings that are reflected in Appellate Exhibit
LV. I am required by law to give you these instructions orally. I
provide this copy of the instructions for you to read along, as you
desire, and also to make notes thereon, if you wish.
Do all members have a copy of Appellate Exhibit LV?
Affirmative response from all panel members. Very well.
Members of the court, at this time I will instruct you on
the law to be applied in this case.
The accused, Lieutenant Commander Penland, United States
Navy, must be presumed to be innocent until her guilt is established
by legal and competent evidence beyond a reasonable doubt; and if
there is a reasonable doubt as to the guilt of the accused, the doubt
must be resolved in favor of the accused and the accused must be
acquitted. The burden of proof to establish the guilt of the accused
is upon the Government.
910
When you close to deliberate and vote on the findings, each
of you must resolve the ultimate question of whether the accused is
guilty or not guilty based upon the evidence presented here in court
and the instructions which I will give you. It is my duty to instruct
you on the law. It is your duty to determine the facts, apply the law
to the facts and thus determine the guilt or innocence of the accused,
bearing in mind again that the law presumes the accused to be innocent
of the charges against her.
You heard--just heard an exposition of the facts by counsel
for both sides as they view them. Bear in mind that the argument of
counsel are not evidence. Argument is made by counsel in order to
assist you in understanding and evaluating the evidence. You must
base the determination of the issues in this case on the evidence as
you remember it.
Counsel may have referred to instructions that I will give
you and, in that regard, I will merely say that if there is any
inconsistency between what counsel say about the instructions and the
instructions I give you, you must accept my statement as being
correct.
During the trial, some of you may have taken notes. You
may not take your notes with you into the deliberation room, however,
your notes--I'm sorry. You may take your notes with you into the
deliberation room, however, your notes are not a substitute for
evidence admitted in the trial and should not be shown to the other
members. You may use your notes to refresh your own recollection.
911
You may find the accused guilty of an offense only if you
are convinced as to her guilt by legal and competent evidence beyond a
reasonable doubt as to each and every element of that offense. I will
now discuss the offenses with you in the order in which they appear on
your copy of the charge sheet.
Charge I, Specification: In the Specification of Charge I
the accused is charged with the offense of violating a general
regulation. In order to find the accused guilty of this offense, you
must be convinced by legal and competent evidence beyond reasonable
doubt:
(1) That there was in existence a certain lawful general
regulation in the following terms: Section 2-301 of the Joint Ethics
Regulation (JER), DOD 5500.7-R, dated 30 August 1993, as amended by
Change 2, dated 25 March 1996, prohibiting use of government property
and resources for other than authorized purposes;
(2) That the accused had a duty to obey this regulation;
and
(3) That on divers occasions from on or about September
2006 to on or about January 2007, at or near San Diego, California,
the accused violated this lawful general regulation by wrongfully
using her government issued cellular telephone to make personal calls.
As a matter of law, the regulation in this case, as
described in the Specification, if, in fact, there was such a
regulation, was a lawful regulation.
Divers occasions means more than once.
912
When a general regulation prohibits certain acts, except
under certain conditions, then the burden is on the prosecution to
establish by legal and competent evidence beyond a reasonable doubt
that the accused does not come within the terms of the exceptions.
Charge II, Specification: In the Specification of Charge
II, the accused is charged with the offense of making a false official
statement. In order to find the accused guilty of this offense, you
must be convinced by legal and competent evidence beyond reasonable
doubt:
(1) That on or about 21 February 2007, at or near San
Diego, California, the accused made to Captain John B. Sturges, III,
United States Navy, a certain official record, that is, "I did not
call NC1 Lewis-Wiggan" or words to that effect;
(2) That such statement was totally false;
(3) That the accused knew this statement to be false at the
time she made it; and
(4) That the false statement was made with the intent to
deceive.
Intent to deceive means to purposefully mislead, to cheat,
to trick another or to cause another to believe as true that which is
false.
Charge III, Specification 1: In Specification 1 of Charge
III, the accused is charged with the offense of conduct unbecoming an
officer and gentlewoman. In order to find the accused guilty of this
offense, you must be convinced by legal and competent evidence beyond
913
reasonable doubt:
(1) That on divers occasions from September 2006 to
February 2007, at or near San Diego, California, the accused utilized
her rank to facilitate communications over a government communications
system for solely unofficial purposes;
(2) That in so doing, the accused repeatedly disrupted Navy
Counselor First Class Kimberly Lewis-Wiggan, United States Navy, at
her place of duty, on board USS MOBILE BAY, concerning a strictly
personal matter; and
(3) That under the circumstances, the accused's conduct
personally and seriously compromised her standing as a Naval officer
and was unbecoming an officer and a gentlewoman.
Specification 2: In Specification 2 of Charge III, the
accused is charged with the offense of conduct unbecoming an officer
and gentlewoman. In order to find the accused guilty of this offense,
you must be convinced by legal and competent evidence beyond
reasonable doubt:
(1) That on or about 22 February 2007, at or near San
Diego, California, the accused wrongfully refused to leave the
USS PRINCETON until she gained an audience with either the Commanding
Officer or executive officer to address solely unofficial and personal
matters;
(2) That in so doing, the accused disrupted the executive
officer of USS PRINCETON in the performance of his official duties, in
breach of Naval customs and traditions; and
914
(3) That under the circumstances, the accused's conduct
personally and seriously compromised her standing as a Naval officer
and was unbecoming an officer and a gentlewoman.
Specification 3: In Specification 3 of Charge III, the
accused is charged with the offense of conduct unbecoming an officer
and gentlewoman. In order to find the accused guilty of this offense,
you must be convinced by legal and competent evidence beyond
reasonable doubt:
(1) That on or about 28 September 2006, at or near San
Diego, California, the accused wrongfully distributed nude photographs
of Lieutenant JG Mark Wiggan, U.S. Navy, to his wife, Navy Counselor
First Class Kimberly Lewis-Wiggan, U.S. Navy; and
(2) That under the circumstances, the accused's conduct
personally and seriously compromised her standing as a Naval officer
and was unbecoming an officer and a gentlewoman.
Conduct unbecoming an officer and a gentlewoman means
behavior in an official capacity which, in dishonoring or disgracing
the individual as a commissioned officer, seriously detracts from her
character as a gentlewoman or behavior in an unofficial or private
capacity which, in dishonoring or disgracing the individual
personally, seriously detracts from her standing as a commissioned
officer. Unbecoming conduct means misbehavior more serious than
slight and of a material and pronounced character. It means conduct
morally unfitting and unworthy rather than merely inappropriate or
unsuitable misbehavior which is more than opposed to good taste or
915
propriety.
I remind the court that Charge IV and its Specification was
dismissed and, therefore, is not before you for consideration.
Charge V, Specification: In the Specification of Charge V,
the accused is charged with the offense of adultery. In order to find
the accused guilty of this offense, you must be convinced by legal and
competent evidence beyond reasonable doubt:
(1) That on divers occasions on or about September 2006 to
on or about January 2007, at or near San Diego, California, the
accused wrongfully had sexual intercourse with Lieutenant JG Mark
Wiggan, U.S. Navy;
(2) That at the time Lieutenant JG Mark Wiggan, U.S. Navy,
was married to another person; and
(3) That under the circumstances, the conduct of the
accused was to the prejudice of good order and discipline in the armed
forces or was of a nature to bring discredit upon the armed forces.
Conduct prejudicial to good order and discipline is conduct
which causes a reasonably direct and obvious injury to good order and
discipline.
Service discrediting conduct is conduct which tends to harm
the reputation of the service or lower it in public esteem.
Sexual intercourse is any penetration, however slight, of
the female sex organ by the penis. An ejaculation is not required.
The female sex organ includes not only the vagina, which is
the canal that connects the uterus to the external opening of the
916
genital canal, but also the external genital organs which include the
labia majora and the labia minora. Labia is the Latin and medically
correct term for lips.
Not every act of adultery constitutes an offense under the
Uniform Code of Military Justice. To constitute an offense, the
Government must prove beyond a reasonable doubt that the accused's
adultery was either directly prejudicial to good order and discipline
or service discrediting.
Conduct prejudicial to good order and discipline includes
adultery that has an obvious and measurably divisive effect on the
discipline, moral or cohesion of a military unit or organization or
that has a clearly detrimental impact on the authority, stature or
esteem of a service member.
Service discrediting conduct includes adultery that has a
tendency because of its open or notorious nature to bring the service
into disrepute, to make it subject to public ridicule or to lower it
in public esteem.
Under some circumstances adultery may not be prejudicial to
good order and discipline but nonetheless be service discrediting as I
have explained those terms to you. Likewise, depending on the
circumstances, adultery can be prejudicial to good order and
discipline but not service discrediting. In determining whether the
alleged adultery in this case is prejudicial to good order and
discipline and or is of a nature to bring discredit upon the armed
forces, you should consider all the facts and circumstances offered on
917
this issue, including, but not limited to:
The accused's marital status, military rank, grade or
position;
The accused's [sic] Lieutenant JG Wiggan's marital status,
military rank, grade or position or relationship to the armed forces;
The military status of the co-actor spouse, then Navy
Counselor First Class Kimberly Lewis-Wiggan, United States Navy, and
her relationship to the armed forces;
The impact, if any, of the adulterous relationship on the
ability of the accused, the co-actor or the co-actor spouse to perform
their duties in support of the armed forces;
The misuse, if any, of Government time and resources to
facilitate the commission of the adultery;
Whether the adultery persisted despite counseling or orders
to desist;
The flagrancy of the adulterous relationship such as
whether any notoriety ensued and whether the adultery was accompanied
by other violations of the UCMJ;
The impact of the adultery, if any, on the units or
organizations of the accused, the co-actor or the co-actor spouse such
as a detrimental effect on unit or organization, morale, teamwork and
efficiency;
Whether Lieutenant JG Wiggan and Navy Counselor First Class
Kimberly Lewis-Wiggan, United States Navy, were physically separated
and living apart;
918
Whether the accused reasonably believed that Lieutenant JG
Wiggan was divorced or legally separated from NC1--then NC1 Lewis-
Wiggan;
Whether Lieutenant JG Wiggan was legally separated;
Whether the adultery involves an ongoing or recent
relationship or is remote in time;
Where the adultery occurred;
Who may have known of the adultery; and
The nature, if any, of the official and personal
relationship between the accused and Lieutenant JG Mark Wiggan, U.S.
Navy.
A marriage exists until it is dissolved in accordance with
the laws of a competent state or foreign jurisdiction.
Defense of Mistake of Fact: The evidence has raised the
issue of mistake on the part of the accused concerning whether
Lieutenant JG Wiggan was divorced from his spouse in relation to the
offense of adultery, as reflected in the Specification of Charge V.
The accused is not guilty of the offense of adultery if:
(1) She mistakenly believed that Lieutenant JG Wiggan was
divorced; and
(2) If such mistaken belief on her part was reasonable.
To be reasonable, the mistaken belief must have been based
on information or lack of it which would indicate to a reasonable
person that Lieutenant JG Wiggan was divorced. Additionally, this
mistake cannot be based on a negligent failure to discover the true
919
facts. Negligence is the absence of due care. Due care is what a
reasonably careful person would do under the same or similar
circumstances.
You should consider the accused's age, education,
experience, along with all the other evidence on this issue,
including, but not limited to, the testimony of NC1 Lewis-Wiggan and
Lieutenant JG Wiggan.
The burden is on the prosecution to establish the accused's
guilt. If you are convinced beyond a reasonable doubt that at the
time of the charged offense the accused was not under the mistaken
belief that Lieutenant JG Wiggan was divorced from NC1 Lewis-Wiggan,
then the defense of mistake does not exist. Even if you conclude that
the accused was under the mistaken belief that Lieutenant JG Wiggan
was divorced from NC1 Lewis-Wiggan, if you are convinced beyond a
reasonable doubt at the time of the charged offense of adultery the
accused's mistake was unreasonable, the defense of mistake does not
exist.
You are further advised:
First, that the accused, Lieutenant Commander Penland, is
presumed to be innocent until her guilt is established by legal and
competent evidence beyond a reasonable doubt; and
Second, if there is a reasonable doubt as to the guilt of
this accused, that doubt must be resolved in favor of the accused, and
she must be acquitted.
920
The burden of proof to establish the guilt of the accused
beyond a reasonable doubt is on the Government. The burden never
shifts to the accused to establish her innocence or to disprove the
facts necessary to establish each element of each offense alleged.
Reasonable Doubt: Some of you may have served as jurors in
civilian cases or as board members in administrative boards where you
were told that it is only necessary to prove that a fact is more
likely true than not true. In criminal cases, the Government's proof
must be much more powerful than that. It must be beyond a reasonable
doubt.
By "reasonable doubt" is intended not a fanciful,
speculative or ingenuous doubt or conjecture but an honest and actual
doubt suggested by the material evidence, or lack of it, in the case.
It is a genuine misgiving caused by insufficiency of proof of guilt.
Reasonable doubt is a fair and rational doubt based upon reason and
common sense and arising from the state of the evidence. Proof beyond
a reasonable doubt is proof that leaves you firmly convinced of the
accused's guilt. There are very few things in this world that we
know with absolute certainty and in criminal cases the law does not
require proof that overcomes every possible doubt.
If, based upon your consideration of the evidence, you are
firmly convinced that the accused is guilty of the crime charged, you
must find her guilty. If, on the other hand, you think there is a
real possibility that she is not guilty, you must give her the benefit
of the doubt and find her not guilty.
921
The rule as to reasonable doubt extends to every element of
the offense, although each particular fact advanced by the prosecution
that does not amount to an element need not be established beyond a
reasonable doubt. However, if on the whole evidence you are satisfied
beyond a reasonable doubt of the truth of each and every element, then
you should find the accused guilty.
Credibility of Evidence: You should bear in mind that only
matters properly before the court as a whole should be considered and,
in weighing and evaluating the evidence, you are expected to utilize
your own common sense and your knowledge of human nature and the ways
of the world. In light of all the circumstances in this case, you
should consider the inherent probability or improbability of the
evidence. Bear in mind you may properly believe one witness and
disbelieve several other witnesses whose testimony is in conflict with
the one. The final determination as to the weight or significance of
the evidence and the credibility of the witnesses in this case rests
solely with you, the members of the court.
Credibility of Witnesses: You have the duty to determine
the credibility, that is, the believability of the witnesses. In
performing this duty, you must consider each witness' intelligence,
ability to observe and accurately remember, in addition to the
witness' sincerity and conduct in court and prejudices or bias.
Consider also the extent to which each witness is either supported or
contradicted by other evidence, the relationship each witness may have
with either side, and how each witness might be affected by the
922
verdict.
In weighing any discrepancies by a witness or between
witnesses, you should consider whether any discrepancy resulted from
an innocent mistake or a deliberate lie. Taking all these matters
into account, you should then consider the probability of each
witness' testimony and the inclination of the witness to tell the
truth.
With regard to Captain Noel's testimony, as well as
PS1 Lee's testimony on recall, you may also consider, along with all
the other factors affecting believability, the fact that you have not
had the opportunity to personally observe these witnesses.
The credibility of each witness' testimony should be your
guide in evaluating testimony and not the number of witnesses called.
A witness is an accomplice if he is criminally involved in
an offense with which the accused is charged. The purpose of this
advice it to call to your attention a factor specifically affecting
the witness' believability, that is, a motive to falsify his testimony
in whole or in part because of an obvious self-interest under the
circumstances.
Whether Lieutenant JG Wiggan, who testified as a witness in
this case, was an accomplice is a question for you to decide. If
Lieutenant JG Wiggan shared the criminal intent or purpose of the
accused, if any, or aided, encouraged or any other way criminally
associated with or involved himself with the offense of adultery with
which the accused is charged, Lieutenant JG Wiggan would be an
923
accomplice. In deciding the believability of Lieutenant JG Wiggan,
you should consider all the relevant evidence bearing on whether he
was an accomplice to the offense of adultery.
As I indicated previously, it is your function to determine
the credibility of all the witnesses and the weight, if any, you will
accord the testimony of each witness. Although you should consider
the testimony of an accomplice with caution, you may convict the
accused solely upon the testimony of an accomplice so long as the
testimony is not self-contradictory, uncertain or improbable.
Prior Inconsistent Statements: You have heard evidence
that Lieutenant JG Wiggan may have made a statement or statements
prior to this trial that may be inconsistent with his testimony at
this trial. If you believe that an inconsistent statement or
statements was or were made, you may consider the inconsistency in
evaluating the believability of the testimony of Lieutenant JG Wiggan.
You may not, however, consider the prior statement or statements as
evidence of the truth of the matters contained in the prior statement
or statements.
Character for Truthfulness and Untruthfulness: Evidence
has been received as to NCC Lewis-Wiggan's bad character for
truthfulness. Evidence of good character for truthfulness concerning
Lieutenant JG Wiggan was also introduced. You may consider this
character evidence in determining the believability of NCC Lewis-
Wiggan and Lieutenant JG Wiggan.
924
Character of Accused to Show Probability of Innocence: To
show the probability of her innocence the Defense has produced
evidence of the accused's good military character, as reflected by her
outstanding performance of military duties. In rebuttal, the
prosecution has produced evidence of the accused's low or poor
military character.
Evidence of the accused's good military character reflected
by her outstanding performance of military duties may be sufficient to
cause a reasonable doubt as to her guilt.
On the other hand, evidence of the accused's good military
character and outstanding performance in military duties may be
outweighed by other evidence tending to show the accused's guilt and
or by the prosecution's evidence of the accused's poor military
character and performance of military duties.
Comments of the Judge: You must disregard any comment or
statement made by me during the course of the trial that might seem to
indicate to you an opinion on my part as to whether the accused is
guilty or not guilty since you, and you alone, have the responsibility
to make that determination. As court members, each of you must
impartially resolve this ultimate issue in accordance with the law as
I've given you, the evidence properly admitted here in court and your
own conscience.
Judicial Notice: I have taken judicial of the information
that follows:
925
Section 2-301 of the Joint Ethics Regulation (JER), DOD
5500.7-R, dated 30 August 1993, as amended by Change 2, dated 25 March
1996, prohibiting use of government property and resources for other
than authorized purposes is a lawful general regulation applied to the
accused and was in effect during the pertinent time period alleged in
the Specification of Charge I.
I have also taken judicial notice--it should read that 23
February 2007 was a Friday.
Members, I have taken judicial notice of this pertinent
information. This means that you are now permitted to recognize and
consider this information as facts without further proof. This
information should be considered by you as evidence with all other
evidence in the case. You may accept as conclusive any matter I have
judicially noticed, but you are not required to do so.
Circumstantial Evidence: Evidence may be direct or
circumstantial. Direct evidence is evidence which tends directly to
prove or disprove a fact in issue. Circumstantial evidence is
evidence which tends directly to prove not a fact in issue but some
other fact or circumstance from which either alone or together with
some other fact or circumstances you may reasonably infer the
existence or nonexistence of a fact in issue.
There is no general rule for determining or comparing the
weight to be given to direct or circumstantial evidence. You should
give all the evidence the weight and value you believe it deserves.
926
Let me give you an example. If a witness testified that he
or she saw it rain during the evening, that would be direct evidence.
If there was evidence the street was wet in the morning, this would be
circumstantial evidence from which you might reasonably infer it
rained during the night.
Knowledge: I have instructed you that you must be
satisfied beyond a reasonable doubt that the accused knew that the
statement she made, as alleged in the Specification of Charge II, was
false. This knowledge, like any other fact, may be proven by
circumstantial evidence. You must consider all relevant facts and
circumstances bearing on this issue in deciding whether the accused
knew that the statement she made, as alleged in the Specification of
Charge II, was false.
Intent: I have instructed you that the accused's intent to
deceive in conjunction with Specification--with the Specification of
Charge II, as well as her intent to defraud in--strike that language,
the--let me just amend the instruction.
Intent: I have instructed you that the accused's intent to
deceive in conjunction with the Specification of Charge II must be
proven beyond a reasonable doubt. Direct evidence of intent is often
unavailable. The accused's intent, however, may be proven by
circumstantial evidence. In deciding this issue, you must consider
all relevant facts and circumstances bearing on the accused's guilt.
Spill-Over: An accused may be convicted based solely on--
an accused may be convicted based only on evidence properly before the
927
court. Each offense must stand on its own and you must keep the
evidence of each offense separate.
Stated differently, if you find or believe the accused is
guilty of one offense, you may not use that finding or belief as a
basis for inferring, assuming, or proving that she committed any other
offense.
If evidence has been presented which is relevant to more
than one offense, you may consider that evidence with respect to each
offense to which it is relevant. For example, if a person were
charged with stealing a knife and later using that knife to commit
another offense, evidence about the knife, such as that person being
in possession of it or that person's fingerprint being found on it,
could be considered with regard to both offenses. But, the fact that
a person's guilt of stealing the knife may have been proven is not
evidence that the person is also guilty of any other offense.
The burden is on the prosecution to prove each and every
element of each offense beyond a reasonable doubt. Proof of one
offense carries with it no inference that the accused is guilty of any
other offense.
Accused's Right to Remain Silent: The accused has an
absolute right to remain silent. You will not draw any inference
adverse to the accused from the fact that she did not testify as a
witness. The fact that the accused has not testified must be
completely disregarded by you.
928
Procedural Instructions on Findings: The following
procedural rules will apply to your deliberations and must be strictly
observed:
The influence of superiority in rank will not be employed
in any manner in an attempt to control the independence of the members
in the exercise of their own personal judgment. Your deliberation
should properly include a full and free discussion of all the evidence
that has been presented.
After you have completed your discussion, then voting on
your findings must be accomplished by secret, written ballot, and all
members of the court must vote. You vote on the specifications under
the charge before you vote on the charge. The order in which the
several charges and specifications are to be voted on should be
determined by the president, subject to objection by a majority of the
members. If you find the accused guilty of any specification under a
charge, the finding as to that charge is guilty. The junior member
will collect and count the votes, and the count is checked by the
president who immediately announces the result of the ballot to the
members.
The concurrence of at least two-thirds of the members
present when the vote is taken is required for any finding of guilty.
Since we have 8 members, this means that 6 members must concur in any
finding of guilty. If you have 6 votes of guilty with regard to the
offense, then that will result in a finding of guilty for that
offense. If fewer that 6 members vote for a finding of guilty, then
929
your ballot resulted in a finding of not guilty.
You may reconsider any finding prior to its being announced
in open court. However, after you vote, if any member expresses such
a desire to reconsider any finding, open the court and I will give you
further specific instructions on how about to go--on how to go about
doing this. If this should occur, when the court has reassembled, the
president will not announce the findings reached but will simply
announce that a reconsideration of a finding has been proposed. Do
not state: (1) Whether the finding proposed to be reconsidered is a
finding of guilty or not guilty; or (2) Which specification and charge
is involved.
As soon as the court has reached its findings and I have
examined the findings worksheet, the findings will then be announced
by the president in the presence of all parties. The format is set
out for you in the findings worksheet, Appellate Exhibit LII.
Bailiff, if you would please approach the court reporter
and retrieve Appellate Exhibit LII and provide that document to the
president of our court, Captain Gentile.
[The bailiff handed AE LII to the president.]
MJ: And let the record reflect that Appellate Exhibit LII has
been provided to our senior member.
Members, you will use the findings worksheet as an aid in
putting your findings in proper form.
The first portion of the worksheet will be used if the
accused is acquitted of all charges and specifications;
930
The second part will be used if the accused is convicted,
as charged, of all charges and specifications; and
The third portion will be used if the accused is convicted
of some but not all of the offenses.
Once you have finished filling in what is applicable, cross
out everything that is not applicable. The worksheet is provided only
as an aid in finalizing your decision.
If during your deliberations you have any questions
concerning the findings worksheet or any other matter, please open the
court and I will take those matters up with you. I would ask that if
you do have such questions, you write them down on one of the forms
we've provided so that an accurate record of your question can be
maintained.
In your deliberation room you will have all the exhibits
that have been admitted into evidence. Please do not write on any
of these exhibits, except for the findings worksheet, Appellate
Exhibit LII.
The Uniform Code of Military Justice prohibits me or anyone
else from entering into your closed session deliberation.
You may not consult the Manual for Courts-Martial or any
other legal publication.
Does any member have any questions concerning my
instructions? Negative response from all panel members.
Do counsel for either side have any objections not already
on record to the instructions given or requests for additional
931
instructions not already on record?
TC: No, sir.
IMC: No, Your Honor.
MJ: Members of the court, I will further instruct you that
should it become necessary for you to take a recess or to leave the
deliberation room for any reason during your deliberations, for
example, to get a drink of water, to call home or even use the head
even though there's one in your deliberations room, we must return to
an open session of court, recess, reassemble and again formally close
for your deliberations. This is a vital legal requirement designed to
ensure that all members are present at all times for those
deliberations.
Given our earlier discussions, Captain Gentile, do the
members desire to recess tonight, to return tomorrow at 0800 hours?
PRES: Yes.
MJ: Very well, sir. We will do that.
Members--Commander Grundy?
MEMBER [CDR GRUNDY]: Can I ask a question? Do I write it down?
MJ: I'd prefer you write it down, sir, if you would please.
[CDR Grundy did as directed.]
MJ: Bailiff, if you would please retrieve the question from
Commander Grundy. Have our court reporter mark it as the next
appellate exhibit in order and then provide it to the counsel for
their review.
932
[The question from CDR Grundy was marked as AE LVII, inspected by
counsel for both sides and handed to the military judge.]
MJ: Thank you. Let the record reflect that counsel have had an
opportunity to review Appellate Exhibit LII [sic].
Question from Commander Grundy: Will we be given
electronic copies of the exhibits?
I'm not quite sure of the answer. I think the answer is
you will be given all the prosecution exhibits that have been properly
admitted into evidence. I don't believe those were in electronic
format.
Counsel, they're your exhibits.
TC: Sir, the Government did not admit any exhibits in
electronic format.
MJ: Very well. You will receive the actual exhibits as they
were received here in court, but I will not provide those until
tomorrow morning since you don't need to take those with you tonight
and I'd prefer to safeguard them with our court reporter.
Members, if you would, you can either cover your notes and
leave them here or you can take them with you tonight, your choice.
If you do leave them here, they'll be safeguarded by our court
reporter and returned to you at 0800 in the morning.
I also again remind you of my standard instructions to not
discuss the case amongst yourselves or with anyone else. Even though
you have received the evidence and my instructions, there may be an
urge to do that; please resist that urge and, given the late hour, I'm
933
sure you will be able to do so. Also, please do not consult any
sources, written or otherwise, related to this case, any other news
media or articles that may have appeared; those would not be proper
for you to review either at this time. If should--if anyone should
attempt to discuss this case with you, including any other member,
please stop that individual and inform me at the next session of
court.
Subject to these standard instructions, the members may
depart in an overnight recess. Please reassemble here at 0800 hours.
BAILIFF: All rise.
[All persons did as directed.]
MJ: Thank you, members. Good evening. Safe travels home.
Court stands in recess.
[The members withdrew from the courtroom.]
MJ: Good evening. Safe travels home.
[The court-martial recessed at 2231 hours, 23 May 2008.]
[END OF PAGE]
934
[The court-martial was called to order at 0805 hours, 24 May 2008.]
MJ: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Good morning, members. Please take your seats when you
arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the overnight recess are again present before the Court this morning,
to include all of our members.
All please be seated.
[All persons did as directed.]
MJ: Bailiff, if you would please approach our court reporter
and retrieve the prosecution exhibits that have been properly
admitted. Provide them to our senior member, Captain Gentile.
[The bailiff handed the prosecution exhibits to the president.]
MJ: Captain, you should have in the folder provided to you
Prosecution Exhibits 1 through 25, except for Number 4. If you would
please verify, sir, that all those exhibits are present, again 1
through 25, except for Number 4.
PRES: [Verifying receipt of applicable exhibits.] Yes, sir.
MJ: Very good, sir. Members, again these are the original case
exhibits. Please do not mark on them in any way. Of course, the one
exception is the findings worksheet I gave to you last night.
I remind you that if it becomes necessary for any member to
935
leave the deliberation room or for you to take a recess for any
purpose, we must come back to court, open, reassess--recess,
reassemble and again close for your deliberations. Again, this is a
vital legal requirement.
Captain Gentile, are the members prepared to deliberate on
the findings of this case?
PRES: Yes, Your Honor.
MJ: Very well. Then, members, you may now withdraw to the
deliberation room. This court is closed for your deliberations.
BAILIFF: All rise.
[All persons did as directed, and the members withdrew from the
courtroom.]
MJ: Court is closed.
[The court-martial closed at 0807 hours, 24 May 2008.]
[The court-martial opened at 0922 hours, 24 May 2008.]
MJ: Please ask the members to rejoin the court.
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: The court is called back to order. Let the record reflect
that all parties present prior to the members' closure to deliberate
are again present before the Court at this time.
All others, please be seated.
[All persons did as directed.]
936
MJ: Captain Gentile, I believe the members have a question,
sir?
PRES: Yes, we do.
MJ: If we could have that marked by our court reporter, please.
[The members' question was marked as AE LVIII and provided to counsel
for both sides for their inspection.]
MJ: Thank you. And let the record reflect the counsel are
reviewing the members' question.
[The members' question was handed to the military judge.]
MJ: Thank you.
BAILIFF: Yes, sir.
MJ: [Reviewing AE LVIII.] Members, although it would seem to
be a simple answer to your question, I need to do a little bit of
research to make sure it's the right answer.
This probably would be a good time for you to take a recess
and I'll ask you to return at quarter to the hour to the courtroom.
Subject to my standard instructions, please do not discuss the case
further with yourselves or anyone obviously. The members may depart
on recess. Please reassemble at quarter to the hour.
BAILIFF: All rise.
[All persons did as directed.]
MJ: Court stands in recess. The members may depart.
[The members withdrew from the courtroom.]
[The court-martial recessed at 0925 hours, 24 May 2008.]
937
[The Article 39(a) session was called to order at 0925 hours, 24 May
2008.]
MJ: Please be seated.
[All persons did as directed.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, except for
the members who have departed on recess.
The question from Appellate Exhibit LVIII is: What is the
legal definition of an official statement? What constitutes an
official statement?
Counsel, I looked in the Judge's Bench Book for that
definition; there isn't one. There wasn't one in the electronic
version either. There is a note about an official nature of a
document. The note to the Bench Book instruction indicates that it's
generally a matter of law a judge to decide, but that it also might be
an issue of fact if the issue is controverted and can be subject to
multiple interpretation.
So I think the most prudent course would be to take some
time now to conduct a little bit of additional research, if you could
all do that, and then reassemble here at quarter to the hour and
hopefully we'll have a definition that we can provide to the members.
Other matters we need to address on the record outside
their presence?
TC: No, sir.
938
IMC: No, Your Honor.
MJ: Very well. Court stands in recess. Please reassemble
quarter to the hour. Carry on.
[The session recessed at 0926 hours, 24 May 2008.]
[The session was called to order at 1005 hours, 24 May 2008.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court as this time, except for
the members who remain in the deliberation room.
Counsel, during the recess, I conducted some independent
legal research as to the defined or acceptable defined term "official"
under Article 107. With regard to responding to the members'
question, I have essentially a three-part response, and then I'll
solicit your input concerning that proposed response as well as any
alternative responses you'd like to suggest.
First of all, I had started with the Manual for Courts-
Martial, the explanation Article 107; this is the 2008 version of the
Manual for Courts-Martial. In the explanation to the punitive
article, the manual defines "official statements" to include all
statements made in the line of duty. I verified that that actually
came from a Court of Military Appeals case, Caballero,
C-A-B-A-L-L-E-R-O, 37 M.J. 422 from 1993. So that would be the first
part of the explanation to the members.
I also found case authority defining the term "official" in
a Navy-Marine Corps Court of Criminal's case from 2001. The term
939
"official" for purposes of making a false official statement
essentially means any matter within the jurisdiction of any federal
department, and that comes from United States vs. Teffeau,
T-E-F-F-E-A-U, reported at 55 M.J. 756, and that particular passage
comes from Page 759, Navy-Marine Corps Court of Criminal Appeals' case
(2001) which was reversed in part on other grounds by CAAF, reported
at 58 M.J. 62 and that was a 2003 CAAF decision. Of importance,
though, with regard to that particular issue in the Navy-Marine Corps
Court of Criminal Appeals' decision, CAAF concurred with the court's
analysis under the Article 107 definition.
And then, finally, the third part of the answer, and this
one again I solicit your response. This particular language comes
from a CAAF decision from 2002, United States vs. Czeschin,
C-Z-E-S-C-H-I-N, reported at 56 M.J. 346 on Page 347, again a Court of
Appeals for the Armed Forces decision (2002), essentially saying
statements to investigators could be prosecuted under Article 107 as a
false official statement.
Those are my proposed responses to the members to respond
to their question concerning a definition of official statement.
Lieutenant Commander Messer, your response to the proposed
answer to the members?
TC: Sir, no issues with the first two. The third could be
confusing to the members in that the--the Government's position is
that the statement was made to Captain Sturges and----
MJ: And he wasn't conducting an investigation at the time.
940
TC: Yeah. No. And that was subject to a pretrial motion 39(a)
session, and we have litigated that issue. I think that if you read
that rule, they could say, "Well, he's not an investigator, so,
therefore, it wasn't"--I don't know. I just think it's misleading. I
don't think it's appropriate.
MJ: Doesn't track with the facts of the case?
TC: That's correct, sir.
MJ: Okay. Captain Callahan, your response to the proposed
answer?
IMC: Sir, I think it might be simpler and easier just to read
the straight language out of the text for the Manual for Court-
Martial, try and keep it as short and small as possible for the
members. If you are going to read that second one, as well, I think,
as part of further expounding upon it, then the third one should be
read, as well. But the Defense's first position would be just to read
straight from the manual, sir.
MJ: Lieutenant Commander Messer?
TC: Nothing further, sir.
MJ: Do you agree or disagree with defense counsel's suggested
course?
TC: I disagree, sir. I mean, obviously I think the first two
are obviously very pertinent. You--if you define official statement,
they'd also probably want a definition for "official," sir.
MJ: Well, that was specifically part of the question, so that's
why I tried to find an official----
941
TC: I agree. Then, I mean, you've heard my arguments for part
three. I think it could be a bit misleading. If you're giving me the
option either all three or only one, I guess I would take all three.
But again, I--the third one I'm kind of scratching my head on because
there's never been any allegation in this case that he was acting in
an investigator capacity.
IMC: Well, there's certainly been allegations on that part that
were raised by the Defense, if he wants to get back to the pretrial
motion, sir.
TC: It's not facts in this case, sir.
MJ: Well, I'm inclined to give the first two solely because
they are in direct response to the members' questions and I believe
they are accurate statements of the law.
With regard to the third suggested definition, it was
essentially an exculpatory no setting where CAAF expanded on its
decision in solace. I think at least in the context of this case the
alleged false official statement could it be viewed as an exculpatory
no and, therefore, it is tracking with the facts of the case. Whether
the statement was in response to some sort of official investigation
or inquiry conducted by Captain Sturges at the time, I'll leave that
for the members to determine. I don't think they'll be unduly misled
by providing this additional explanation that applies the law of false
official statement to an investigative setting.
So, Government, your concerns with regard to part three are
noted, but overruled.
942
Captain Callahan, your request to go it simply with part
one of my explanation, that is also overruled. I think we owe the
members a response to the question that requested a definition of
official, so, therefore, I'm going to give part two as I proposed;
and, as you suggested, I will also give part three.
IMC: Understood, Your Honor.
MJ: Lieutenant Commander Messer?
TC: Nothing further, sir. Understood.
MJ: Very well. Any other matters we need to discuss before we
have the members return so I can respond to their questions?
IMC: Not from Defense, Your Honor.
TC: Nothing from the Government, sir.
MJ: Very well. Bailiff, if you would ask the members to join
the court.
This 39(a) session is concluded.
[The Article 39(a) session concluded at 1013 hours, 24 May 2008.]
[END OF PAGE]
943
[The court-martial was called to order at 1013 hours, 24 May 2008.]
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: The court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Members, in response to your question reflected in
Appellate Exhibit LVIII, I essentially have a three-part response.
First, official statements include all statements made in
the line of duty.
Second, the term "official" for purposes of making a false
official statement essentially means any matter within the
jurisdiction of any federal department.
Third, a statement to an investigator could be prosecuted
as a false official statement.
That is my response to your question, members. If there
are no other questions, you may return to your deliberations. Could
you get that in writing? In about 20 more minutes or 15 more minutes
I'll be glad to put it in writing. I'll be also glad to repeat it if
you want to----
944
MEMBER: Could you repeat it one more time?
MJ: I will.
MEMBER: All right.
MJ: First, official statements include all statements made in
the line of duty.
Second, the term "official" for purposes of making a false
official statement essentially means any matter within the
jurisdiction of any federal department.
Third, a statement to an investigator could be prosecuted
as a false official statement.
Captain, are the members ready to retire for continued
deliberations?
PRES: Yes, Your Honor.
MJ: Very well. Subject to my instructions, you may do so. The
court is now closed once again for your deliberations. The members
may depart.
BAILIFF: All rise.
[All persons did as directed, and the members withdrew from the
courtroom.]
MJ: Court is closed. Carry on, please.
[The court-martial closed at 1014 hours, 24 May 2008.]
[The court-martial opened at 1211 hours, 24 May 2008.]
MJ: Counsel, I am told the members have reached findings. Are
we ready for them to return?
TC: Yes, sir.
945
IMC: Yes, Your Honor.
MJ: Bailiff, please ask the members to join the court.
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
closure for deliberations are again present before the Court at this
time, to include all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Captain Gentile, have the members reached findings in this
case?
PRES: Yes, we have, Your Honor.
MJ: And are your findings accurately reflected on the findings
worksheet?
PRES: Yes, they are, Your Honor.
MJ: Have you signed the worksheet at the end, sir?
PRES: Yes, I have.
MJ: If you would please fold it in half so that it cannot be
read.
[The president did as directed.]
MJ: And, Bailiff, if you retrieve the worksheet to me so I can
determine if it is in proper format.
946
[The bailiff handed LII to the military judge.]
MJ: Thank you. [Reviewing AE LII.]
The findings worksheet appears to be in proper format.
If you would return it to our senior member.
[The bailiff handed AE LII to the president.]
MJ: Accused and Counsel, please rise.
[The accused and her counsel did as directed.]
MJ: Captain Gentile, if you would please announce the findings
of your court.
PRES: Do you want me to stand up?
MJ: As you desire, sir.
PRES: Lieutenant Commander Syneeda L. Penland, United States
Navy, this court-martial finds you: Of Charge I and its sole Specification: Guilty. Of Charge II and its sole Specification: Guilty. Of Charge III, Specification 1: Guilty. Of Charge III, Specification 2: Not Guilty. Of Charge III, Specification 3: Guilty. Of Charge III: Guilty. Of Charge V and its sole Specification: Guilty.
MJ: Please be seated.
[The accused and her counsel did as directed.]
MJ: Members, given your findings, we will have to have a
sentencing hearing in the case. It's my intention to send you on a
lunch recess so counsel can put together their final sentencing
evidence, and also I'll need to discuss with them a number of matters
947
outside your presence.
For planning purposes, I'm not sure how long the sentencing
hearing will take. Typically it will take several hours to introduce
evidence for you on sentencing matters. Counsel will then be
permitted an opportunity to argue an appropriate sentence to you.
Those arguments typically are 20 minutes apiece or so, again no
limitations, but that tends to be the average. And then I'll have to
discuss with them and put into proper form my sentencing instruction.
That may take about 30 minutes or so, and then the actual instructions
themselves are somewhat shorter than the instructions I gave on
findings, maybe about 20 minutes.
So, for planning purposes, I anticipate we'll be here at
least through the dinner hour, so you may want to have a substantial
lunch or at least bring some things back with you so you can be
refreshed throughout the day.
Again, subject to my standard instructions, please do not
discuss this case further amongst yourselves, nor with anyone else.
Captain, sir?
PRES: Your Honor, with relation to our findings, there was a
couple questions from the members of the board, if we----
MJ: Very well. If you would put those questions into a
standard form--oh, you have them. Very good. Okay.
And if we could have those pre-marked, and we'll address
those momentarily.
948
[Questions from the members were marked as AE LIX and LX, inspected by
counsel for both sides, and handed to the military judge.]
MJ: And let the record reflect counsel have reviewed questions
from the members. [Reviewing AE LIX and X.]
Members, I'm going to defer responding to your questions at
this time since I'd like to discuss them with counsel and, based on
the nature of the questions, I think it would probably be appropriate
to defer that anyways. So rather than delay you from your lunch
recess, subject to my standard instructions, if you would please cover
your notes, leave them behind.
I'll ask our bailiff to retrieve the exhibits from our
senior member along with the sentencing--I'm sorry--the findings
worksheet. And we'll have those returned to the court reporter for
safeguarding.
[The bailiff did as directed.]
MJ: Members, subject to those standard instructions, you may
depart on lunch recess. Please reassemble at--well, let's make it
1345 hours. Members may depart on a lunch recess.
BAILIFF: All rise.
[All persons did as directed, and the members withdrew from the
courtroom.]
[The court-martial recessed at 1218 hours, 24 May 2008.]
[END OF PAGE]
949
[The Article 39(a) session was called to order at 1218 hours, 24 May
2008.]
MJ: Please be seated.
[All persons did as directed.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, except the
members who are on lunch recess.
Counsel, with regard to the questions that were asked, I'll
just defer those. We can pick them up at a later time to answer those
questions.
I want to give you also a brief lunch recess and also some
time now in a moment to prepare for the sentencing session. If you
would during the recess have any exhibits pre-marked with the court
reporter and have your witnesses standing by.
Lieutenant Commander Messer, does the Government anticipate
calling witnesses on sentencing?
TC: Yes, sir, just one, Chief Lewis-Wiggan.
MJ: Very well. Estimated time for that testimony?
TC: Ten minutes.
MJ: Captain Callahan, does the Defense anticipate calling
witnesses on sentencing?
IMC: Not at this time, sir.
MJ: Very well. You'll certainly have time during the recess to
make that assessment once again.
950
Lieutenant Commander Penland, based upon the findings of
the court, we will be conducting a sentencing hearing today. I want
to advise you that you have the right at this sentencing hearing to
present matters in extenuation and mitigation, that is, information
about the offenses and or about yourself that you want the court to
consider in deciding an appropriate sentence in your case. Included
in your rights to present these matters are the rights you have to
testify under oath, to make an unsworn statement, or to remain silent.
If you testify under oath, you may be cross-examined by the
prosecutor and questioned by the members and the Court.
If you elect to make an unsworn statement, you may not be
cross-examined by the prosecutor or questioned by the court. However,
the prosecution can rebut any statements of fact you make in an
unsworn statement. You may make an unsworn statement orally or in
writing, personally or through your defense counsel, or you could use
any combination of those ways you so desire.
If you decide to exercise your right to remain silent, that
will not be held against you in any manner.
Do you understand your rights to present matters in
extenuation and mitigation at the sentencing hearing that will follow
the lunch recess?
ACC: Yes, sir.
MJ: Very well. Counsel, are there other matters we need to
address on the record at this time?
TC: None from the Government, sir.
951
IMC: No, Your Honor.
MJ: Very well. If we could reassemble at 1315 hours, I'd like
to discuss and receive any exhibits we can for sentencing and also
have an initial discussion concerning sentencing instructions.
Other matters we need to discuss on the record given that
further information?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. This court stands in lunch recess. Carry on.
[The session recessed at 1221 hours, 24 May 2008.]
[The session was called to order at 1352 hours, 24 May 2008.]
MJ: This 39(a) hearing is called to order.
Let the record reflect that all parties present prior to
the lunch recess are again present before the Court at this time,
except for the members who remain in the deliberation room.
During the recess, the Court prepared and has marked as
Appellate Exhibit LXI the sentencing worksheet. There were a number
of changes made to it, so, therefore, we will not go into an in-depth
discussion at this time, but once the changes have been made we'll
substitute the corrected version for Appellate Exhibit LXI.
I also provided to counsel a very rough draft of the
sentencing instructions. That has been marked Appellate Exhibit LXII.
In a moment we'll go over that to receive counsel inputs concerning
tailoring of the instructions on sentencing.
952
I was informed during the recess that the Defense has a
motion to bring under Rule for Courts-Martial 915. Captain Callahan?
IMC: Yes, sir. Sir, at this time the Defense would request a
mistrial.
MJ: Very well. The basis for your request would be what
specifically?
IMC: Specifically, sir, first dating back to the motions
hearings, the request that the case be dismissed due to the unlawful
command influence of Commander Penland's command, specifically people
over at Naval Coastal Warfare Group ONE. I would point out to the
Court the ruling on that case did find that there was some grounds to
view that the officers had a personal interest in this case. There's
certainly the testimony of the staff judge advocate of Naval Coastal
Warfare Group ONE that obviously had a personal interest in the case
because of the accusations made against them. Based on that, I think
the only possible outcome for the court-martial that could avoid any
appearance of impropriety would be allow the court-martial to be
declared a mistrial and could reconvene by a convening authority other
than the original convening authority.
Secondly, sir, my client would also like to request a
mistrial based on grounds that she was denied her right to counsel.
She did, in fact, attempt to change counsel in the court-martial. I
would like to point out on her behalf that I believe I am the only
counsel she's had that's appeared on record. Although she did have
numerous counsel that represented her before myself, none of those
953
actually appeared on the record on her behalf, to my knowledge,
because I was the one who showed up for arraignment. And, as such, I
think that should be weighed in the Court's decision as to whether or
not to allow her to exercise her constitutional right to be
represented by a counsel of her own choosing. I did come back on the
case, but only because she was forced with the prospect of proceeding
without counsel, which she admits she's wholly inadequate to do, or to
be represented by myself which was not her choice. She only wanted a
short reasonable recess in which another counsel could be obtained.
The members certainly could have been reassembled; they all belong to
the admiral. I know some of them are going on leave this week, but
they could have been convened for longer than a week to allow her to
find counsel of her choosing and then ordered back into the court-
martial once again.
Also, sir, I'd like to request a mistrial based on the
grounds of the admission of the photographs to the court. I believe
the appellate case law is clear on the issue dealing with
authenticity. None of the evidence required under the silent witness
theory was proper to admit those pictures. Certainly the admittance
of those pictures clearly prejudiced the case against my client and as
they were arguably the strongest piece of evidence that the Government
presented at this trial.
And, lastly, sir, my client would like to request a
mistrial based on the refusal of the military judge to recuse himself
per her request.
954
MJ: Lieutenant Commander Messer, the Government's position
concerning the grounds for requested mistrial?
TC: Sir, the Government opposes the motion and believes none of
the reasons stated on the record by the defense counsel rise to the
level warranted under R.C.M. 915 that would cause the military judge
to have to grant such a motion.
MJ: Do you desire to argue with any specificity the grounds
that have been brought before the Court?
TC: No, sir. I'll leave that for appellate counsel.
MJ: Very well. The motion for mistrial is noted for the
record, preserved for appeal, and is denied. The Court finds the
record speaks for itself as to the particular bases that have been
offered as grounds for mistrial. The court finds that there is no
necessity to grant a mistrial to prevent injustice in this case, that,
therefore, the motion is denied, subject to further explanation and
expansion prior to authentication of the transcript.
Court's ruling clear to both parties?
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: Very well. If we could then begin our pre-sentencing
session on Page 85 of the Navy-Marine Corps Trial Guide.
Are there any corrections or additions to the personal data
listed on the charge sheet that have not already been made?
TC: No, sir.
IMC: Not that the Defense is aware of, Your Honor.
955
MJ: Has there been any pretrial restraint or confinement?
TC: No, sir.
IMC: There has not, Your Honor.
MJ: Captain Callahan, in your opinion, has your client been
subjected to unlawful pretrial punishment?
IMC: No, Your Honor.
MJ: Very well. Have the parties been able to come to agreement
concerning the personal data sheet?
TC: At this time, sir, copies have been provided to Defense. I
don't know what the status is as far as getting it updated.
MJ: Captain Callahan?
IMC: There are some minor changes that are being made to it,
sir. We'll provide it to the trial counsel at the next break----
MJ: Very well.
IMC: ----for his input.
MJ: Lieutenant Commander Messer, does the prosecution have any
evidence on sentencing to be offered and admitted at this time?
TC: No, sir.
MJ: Captain Callahan, does the Defense have any evidence it
would like to offer on sentencing to be offered and admitted at this
time?
IMC: Not at this time, Your Honor.
MJ: Very well. I believe, based on the findings of the court,
the maximum authorized sentence based upon guilty findings would be
10 years and a dismissal. Do counsel agree?
956
TC: Yes, sir.
IMC: Yes, Your Honor.
MJ: Captain Callahan, do you anticipate your client will be
giving a sworn, unsworn statement, or will she remain silent?
IMC: May I have a moment to confer with my client?
MJ: Certainly. And I'm not asking you to commit to any
particular course. It's just for drafting of the instructions.
IMC: Yes, sir. [Conferring with accused.] She hasn't made her
mind up yet, sir, but I would not anticipate a sworn statement----
MJ: Very well.
IMC: ----in any case.
MJ: I'll leave that open then.
I've provided to you, as I said, a very tentative draft of
the sentencing instructions as Appellate Exhibit LXII. I've already
noted a number of typographical errors that will be corrected when the
instructions are provided to the members, but I want to get to you the
substance so you can prepare your case and argue your positions
accordingly.
I will note that I think I made one modification to reflect
the maximum authorized punishment of 10 years' confinement. I'll make
that change also on Page 1, Line 16 of Appellate Exhibit LXII.
I need to get some input as to the maximum forfeitures of
pay and allowances on Line 30 of Page 2. You know, typically most
cases we just settle on the basic pay per month, but in this instance,
since this is a general court-martial, the court is authorized to
957
forfeit all pay, as well as allowances. So we'll need to come up with
a figure that I could advise the members as to the pay and allowances
per month. Of course, the court can arrive at any lesser figure or a
sentence containing no forfeiture at all.
A couple of things I did remove since the standard
instructions encompass instructions for enlisted accuseds. I did
remove reduction in pay grade, as well as the automatic reductions in
pay grade.
I have left in on Page 3 the possibility of a fine.
Although our courts have admonished that typically a fine should not
be awarded unless there was unjust enrichment, I believe that the case
law has developed that a fine still may be imposed if the members feel
in their judgment it is appropriate.
The only punitive discharge at this forum for a Lieutenant
Commander would be dismissal from the service, so I've incorporated
those modifications on Page 3 under the section Punitive Discharge,
and finally no punishment that appears at the bottom of the page as an
option for the members.
Moving to the top of Page 4, in the trial guide there are a
number of matters that the sentencing authority is instructed to
consider. I will need some further tailoring to fill in some of the
blanks, as well as make any necessary changes on Page 4.
Do counsel desire that I instruct the members concerning
the accused's age, and will there be evidence offered as to that fact
so they can consider the age of the accused? I'll start with Captain
958
Callahan, your choice.
IMC: I don't think that's an issue----
MJ: Not an appropriate factor?
IMC: ----in this case, sir.
MJ: Government Counsel, agree?
TC: We have no objection on it, sir.
MJ: Very well. The accused's good military character, if there
are defense exhibits to be offered, I'll incorporate those there. If
not, I will just reference the testimony we had as to good military
character.
Defense Counsel, do you anticipate additional witnesses to
testify on such a matter?
IMC: No additional witnesses, sir.
MJ: Very well.
IMC: We will probably call Commander Milner to testify, sir, but
he obviously is not additional.
MJ: Okay. He'll be incorporated there.
And I will also instruct the members down farther that
they--well, actually in Lines 2 through 5 on that page it talks about
evidence before or after the findings. So they can consider the
testimony before the findings as well as what occurs afterwards.
IMC: Thank you, Your Honor.
MJ: Very well. I know that Lieutenant Commander Penland has
prior enlisted service. Did she, in fact, receive a Good Conduct
Medal for her enlisted service?
959
IMC: Yes, sir, two of them.
MJ: Two. Very well. So it will be for good conduct as
reflected by her receipt of two Good Conduct Medals.
Was she honorably discharged as an enlisted service member,
as well, and will there be evidence to that effect?
IMC: She was priorly--yes, sir.
MJ: She was discharged honorably?
IMC: Yes, sir. She has prior honorable discharges.
MJ: How many? Just one?
IMC: Just one, sir.
MJ: Prior honorable discharge. Okay.
Does she have any combat record?
IMC: No combat record, Your Honor.
MJ: On Line 13 I've incorporated I believe--I realize that she
has a bachelor and a master's degree. I don't know if there will be
any evidence offered to that effect. If there is, I would instruct,
if the parties desire. Captain Callahan?
IMC: May I have a moment, sir?
MJ: Certainly. And I think that goes to value to the service
based on training and education.
IMC: Yes, sir, we would request that.
MJ: Very well. If you develop evidence along those lines, then
I will so instruct.
The same line of query with regard to line item 14, in
terms of graduating from the following schools, typically those are
960
service schools, again to show the Service's investment and training
in the individual. Do you anticipate offering evidence of that
matter?
IMC: Yes, Your Honor.
MJ: Do you want me to instruct as to specific schools or just
service schools?
IMC: I think just service schools in general is sufficient, Your
Honor.
MJ: Very well. Do you anticipate offering enlisted evaluations
and fitness reports?
IMC: No, sir.
MJ: Do you anticipate eliciting any testimony concerning
performance in those--and along those lines?
IMC: From Commander Milner, sir, and against the testimony that
was admitted previously.
MJ: I'll modify Line 15 to reflect something to the effect they
should consider the accused's performance as evidenced by the
testimony of Captain Noel, Captain Johnson and Commander Milner.
IMC: Thank you, Your Honor.
MJ: Line 17, normally we reference the personal data sheet that
contains the medals and awards. Once the parties have agreed to
those, I'll just simply reference that as whichever exhibit it is
offered as, be it a prosecution or defense exhibit.
The nature of the offenses of which the accused has been
convicted, Prosecution Exhibits 1 through 3 and 5 through 25 and any
961
other exhibits to be offered, as well as the testimony of the
witnesses, including character witnesses. And then again, depending
on the accused's election, then Line 22 to consider her testimony, her
unsworn statement, if she does express a desire to remain in the
service, those will be referenced for the members to consider, as
well.
If the accused declines to testify, then that instruction
on the bottom of Page 4 will be provided to the members. If the
accused elects to make an unsworn statement, the standard instruction
that appears above the top of Page 5 will be provided.
Then the standard sentencing instructions from the Navy-
Marine Corps Trial Guide will follow concerning principles of
sentencing and voting procedures on sentencing and so on.
Again, we'll finalize the sentencing worksheet in a recess
before you--before the members receive my sentencing instructions.
Aside from the sentencing instructions that have already
been discussed, do counsel have any requests for additional sentencing
instructions or additional tailoring we have not already addressed?
TC: None from the Government, sir.
IMC: Sir, I think the only other issue is under Confinement,
Line 13, Page 2.
MJ: Yes. I crossed that typographical error, the life.
IMC: The life, sir. Yes, sir. Thank you.
MJ: Yeah, there's some more tailoring that's going to be done
to this. As I said, it was drawn up in haste during the lunch recess.
962
So I do appreciate that, and if you see any other errors that I have
missed, certainly point those out and I'll make the necessary changes.
Very well. So aside from that modification, any other
requests for findings instructions or additional tailoring--I'm
sorry--sentencing instructions or additional tailoring?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. And I believe we discussed sentencing
witnesses. The Government anticipates one witness, correct?
TC: That's correct, sir.
MJ: And at this point one witness for the Defense?
IMC: Yes, Your Honor.
MJ: Very good. Other matters we need to address on the record
before the members join us?
TC: No, sir.
IMC: No, sir.
MJ: Very well. This 39(a) session is concluded.
Bailiff, please ask the members to rejoin our court.
BAILIFF: Aye, sir.
[The Article 39(a) session concluded at 1409 hours, 24 May 2008.]
[END OF PAGE]
963
[The court-martial was called to order at 1409 hours, 24 May 2008.]
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the lunch recess are again present before the Court at this time, to
include all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: The court will now hear the personal data concerning the
accused. Lieutenant Commander Messer, will you please read the data
to the members from the charge sheet.
TC: Yes, sir.
Name of Accused: Penland, Syneeda L.
Social Security Number: Last four 9460.
Rank and rate: Lieutenant Commander.
Pay Grade: O-4.
Unit or organization: Navy Coastal Warfare Group ONE, now
command known as Maritime Expeditionary Security Group ONE.
Current service: Initial date, 01 August '97
Term: Indefinite.
Basic pay: $6,404.
Sea and foreign duty pay: Not applicable.
964
Total pay: $6,404.
Nature of restraint of accused: Not applicable.
Dates imposed: Not applicable.
MJ: Thank you, Commander.
Does the prosecution have any evidence to present on
sentencing matters?
TC: Yes, sir. The prosecution would call Chief Lewis-Wiggan to
the stand.
MJ: Very well. Bailiff, if you would please recall the witness
on behalf of the court.
[The bailiff retrieved the witness.]
NAVY COUNSELOR CHIEF KIMBERLY LEWIS-WIGGAN, U.S. Navy, was recalled as
a witness for the prosecution, was reminded of her oath, and testified
as follows:
DIRECT EXAMINATION
Questions by the trial counsel:
Q. Chief, I'd ask you to explain to the members what effect
Lieutenant Commander Penland's actions in dealing with you from the
period of September 2007 through to February--or excuse me--September
2006 through February 2007, what effect has that had on you?
A. I can say honestly I have been thoroughly embarrassed. I
have had to deal with this when I was on the MOBILE BAY. I had to
look my chain of command in the face and show them--I had to let them
into a part of my life that I didn't think I needed to let anybody
into. I--I--I feel like kind of--I feel like I was one of those rape
965
victims that keeps getting done over and over again.
I had to go from one command and go to another command, and
then I had to check into a new command and still talk about the same
thing over and over again. And you put on a brave face, you smile
accordingly, you let everybody see the smiles, but when you're home by
yourself, you call your family, you cry to them. But, you know, when
it's time to come to work, you put the face on that you have to put on
to get the job done.
Q. Did her actions--do they still affect you today?
A. I can say it makes me a little leery when I do have to deal
with people because I--in the upper chain, because I felt like when I
was an E-6 I had to explain so much, I had to have so much
documentation just for anybody to believe one small thing that I said.
I mean, now I'm a Chief. If I was to say it now, I think I would have
gotten believed a lot faster. I would not probably have to show as
much stuff and bare as much information and prove as much to anybody.
I mean, there is a difference, and that is a heavy accusation to make
on someone and this is--you know, you're saying something that you
really do have to prove and I understand the weight of it.
But I don't think for one minute that at any time, and in
the small thing that I asked, was an apology, I never could get that
from her. I never could get that look in the face of saying, "Hey,
I'm sorry; yeah, I did wrong and I'm sorry." I didn't get it back
then, I haven't gotten it a year later. I never could get that. And
I always felt without a shadow of a doubt in my mind all Naval
966
officers, when they did something wrong or they didn't do something
right, everyone I ever encountered before then would gladly stand up
and admit they messed up or they did something wrong and they were man
or woman enough to admit it, and that to me was something that put
them above all others; and I don't think--to me, she's never going to
say I'm sorry because she doesn't feel that she ever did anything
wrong. She didn't feel like she intimidated me. She didn't feel like
she did nothing----
IMC: Objection, sir. She's speculating to the feelings of
Commander Penland.
MJ: Sustained. You could ask a different question.
WIT: Sorry about that, sir.
MJ: Lieutenant Commander Messer.
Q. Chief, let me ask you another question. Has your opinion
of officers in the U.S. Navy changed because of the things that
Commander Penland did to you?
A. Before it did--before it really did. It bothered me a
whole lot until I checked into my new command and I saw that the
integrity was still there and they really took their oath seriously
and they really meant what they were doing. And at first I was a
little jaded, you know, I really was jaded because I was like, wow,
how can somebody do this to me and, you know, and they don't seem to
really care that they did it to me.
But when I checked in there, I got surrounded by positive
people. So now I look back on the community and I look at the people
967
I serve with and I say, hey, these officers are outstanding. They're
the best of the best as far as I'm concerned.
So before I was--I was slightly jaded, but I'm coming back
and I'm seeing that there are good officers out there and one doesn't
spoil the whole bunch.
Q. Does--the way you were treated by Commander Penland, has it
changed your impression of the Navy as a whole?
A. No. Nothing can change my impression of the Navy. It's
the best organization in the world. I wanted to come in the Navy ever
since I was a little kid and I'm proud to be in the Navy and nothing
will ever change how I feel about being in the Navy.
TC: Thank you very much, Chief. I don't have any other
questions.
WIT: Thank you, sir.
MJ: Captain Callahan?
IMC: Nothing. Thank you, Your Honor.
MJ: Questions from our members? Negative response from all
panel members.
[The witness was excused and withdrew from the courtroom.]
MJ: Further evidence from the prosecution on sentencing
matters?
TC: Nothing further from the Government, sir.
MJ: Captain Callahan, does the Defense have any evidence to
offer on sentencing matters at this time?
968
IMC: Yes, sir, the Defense does, but first Defense would request
a 39(a) to address an issue with the military judge.
MJ: Very well. Members, please cover your notes. Subject to
the standard instructions I give you about discussing the case and so
on and so forth, you may depart from the courtroom. Please remain in
the deliberation area.
BAILIFF: All rise.
[All persons did as directed, and the members withdrew from the
courtroom.]
[The court-martial recessed at 1418 hours, 24 May 2008.]
[END OF PAGE]
969
[The Article 39(a) session was called to order at 1418 hours, 24 May
2008.]
MJ: Please be seated.
[All persons did as directed.]
MJ: The 39(a) session is now called to order.
Let the record reflect that all parties present prior to
the excusal of the members are again present before the Court at this
time.
Captain Callahan?
IMC: Yes, sir. I did object during her testimony because I
didn't feel it was the best way to handle it from a tactical decision
in front of the members, but I would request that the Court instruct
the members again at this time that Commander Penland does have an
absolute right to remain silent and the fact that she has not
apologized, thus implicating herself, cannot be considered by them as
a basis for punishment of her.
Again that amounted--that testimony in part amounted to a
comment and even a request for punishment based on her right to remain
silent which is clearly not permissible under the rules, sir.
I also request that, in addition with that, that the
members be instructed that the fact that Commander Penland has elected
to go to trial on this issue cannot be used in any way to punish her
for exercising her constitutional rights to a trial, and I feel that
based on the emotional nature of her testimony that that curative
instruction would be appropriate at this time vice later when the
970
other sentencing instructions are given, sir.
MJ: Lieutenant Commander Messer?
TC: No objection from the Government, sir.
MJ: Very well. How do you want to phrase the second part of
your request, Captain Callahan?
IMC: Sir, something along the lines that Lieutenant Commander
Penland has the constitutional right to go to trial and the fact that
she exercised those rights and came to a trial cannot be held against
her in any way.
TC: Well, sir, I would object to that. I don't see how that's
appropriate based on the testimony we just heard. We heard the
witness say that the accused has never apologized to her. I think
it's debatable. I think in context it was during pretrial, but I'd
give the Defense a little leeway there. But then to instruct them on
something as to it's her right to demand trial, I mean, the accused
[sic] never made any mention that forcing her to come here and testify
and making it difficult for her or anything like that. I don't see
how that's relevant based on the witness' testimony.
MJ: Captain Callahan, the context of the testimony you feel
that deserves this instruction or merits the instruction?
IMC: Sir, the fact that she testified about how embarrassing
this has been and she's had to--she almost felt like a rape victim and
she's had to go and retell this and retell this to people, and I think
by implication that it includes coming in here and having to tell
these senior officers about it, as well, sir.
971
TC: Absolutely no nexus to that, sir. That's ridiculous. And
I believe if the judge would recount--could recall the testimony from
his own notes, that she was referring to where she had to explain this
to her chain of command when these things were happening to her. In
fact, that was my question was how has the Commander's actions during
that time period affected you, and she talked about it. She's not
talking about her preparations for trial. She was very clear that she
had to bring this up to her to her commands.
MJ: With regard to your requests, Captain Callahan, the Court
will instruct the members that Lieutenant Commander Penland has an
absolute right to remain silent and that she cannot be punished for
failing to apologize to NCC Lewis-Wiggan. The Court will also
instruct something to the effect that Lieutenant Commander Penland has
a constitutional right to a public trial and she may not be punished
because NCC Lewis-Wiggan was called as a witness to testify.
IMC: Thank you, Your Honor.
MJ: Anything else we need to address at this 39(a) session?
IMC: No, Your Honor.
MJ: Very well. With regard to the--go ahead, Commander Messer.
Anything else?
TC: Nothing from me, sir.
MJ: Okay. With regard to the Defense's sentencing evidence, I
gather you're going to recall Commander Milner?
IMC: Yes, sir.
972
MJ: Any other evidence you anticipate providing the members or
will you need a brief recess to resolve that issue?
IMC: Request a brief recess after that, sir, to consult with my
client, per her wishes.
MJ: Very well. I will certainly give you that opportunity, and
then also during that recess we can reexamine the sentence
instructions, the sentencing worksheet, and you can prepare for your
sentencing arguments.
Very well. This 39(a) session is concluded.
Bailiff, please ask the members to rejoin the court.
[The Article 39(a) session concluded at 1423 hours, 24 May 2008.]
[END OF PAGE]
973
[The court-martial was called to order at 1424 hours, 24 May 2008.]
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Members, I have an instruction for you. You may wish to
take a note or not, your choice.
With regard to the testimony of NCC Lewis-Wiggan, you are
advised that Lieutenant Commander Penland has the absolute right to
remain silent and that she cannot be punished for failing to apologize
to NCC Lewis-Wiggan.
You are further advised that Lieutenant Commander Penland
has a constitutional right to a public trial and that she may not be
punished because NCC Lewis-Wiggan was called as a witness to testify.
Will all the members be able to follow these limiting
instructions? Affirmative response from all panel members.
Very well. Captain Callahan, does the Defense have any
evidence it would like to offer the members on sentencing?
IMC: Yes, sir. Sir, the Defense would recall Commander Milner.
974
MJ: Very well. Commander Milner, if you would resume your seat
in the witness chair.
COMMANDER LARRY D. MILNER, U.S. Navy, was recalled as a witness for
the defense, was reminded of his oath, and testified as follows:
DIRECT EXAMINATION
Questions by the individual military counsel:
Q. Good afternoon, sir.
A. Good afternoon.
Q. Sir, you've already came in and testified to the good
military character that Commander Penland had when she worked for you.
Would you please go into a little bit more detail and describe her as
a person now.
A. Yeah, I'll do that.
First of all, judge, thank you very much for giving me the
opportunity to speak here and try to help Lieutenant Commander
Penland.
And thank you, sir, and Commander Messer. You guys both did
a great job.
First of all, as I mentioned earlier, that I met--when I
met Commander Penland, and my impressions of her were what I said they
were, I did not--and they still are. I believe that at some period in
time--some period--at some period in time things went kind of wacky
and I've heard the testimony, the same testimony that the jury heard,
and I respect the jury's verdict. I can understand how the jury came
up with that verdict.
975
And, Commander Penland, I'm sorry about the verdict.
But I think that--I think this phase of the trial right now
the jury has a very, very difficult task and that's the sentence and
all, sir, and also this----
TC: Sir, I'm going to object to this. This is non responsive
to the question. He asked him to describe Lieutenant Commander
Penland as a person. The witness is not addressing that. He's giving
his own philosophy on sentencing.
WIT: No.
MJ: Captain Callahan?
IMC: Sir, this is certainly stuff that the Defense would like to
get into, as well; and I think, in the interest of allowing this very
senior officer to testify, I'd request you relax the rules of evidence
here for purposes of this and allow him to testify more in this
narrative format. The Defense is satisfied with the----
MJ: Well, if you could ask maybe some focused questions so you
can develop the areas you'd like to develop.
IMC: Yes, sir.
MJ: I still need to give your adversary an opportunity to
object, as necessary.
IMC: Yes, sir.
Q. Sir, in your opinion, does Commander Penland have
rehabilitative potential?
A. Yes, I do. As I was saying that and the reason why I say
that is because this officer spent 18 years in the United States Navy
976
and has served the Navy well. She's wearing two pins. She served on
ships. She's done a very, very good job. As I said, she worked for
me and she did an outstanding job.
As to whether or not--I know that the jury is at a point
right now where they must sentence her, and I don't think that from a
rehabilitative standpoint that to confine Commander Penland for what
she was found guilty of doesn't----
TC: Sir, I'm going to object again. This goes beyond
rehabilitative potential. He's now arguing that she not be confined.
MJ: Captain Callahan?
IMC: Sir, again he's getting into the basis for his opinion on
her rehabilitative potential and----
TC: Sir, what he's using this witness to do is to tell the
members what the sentence should be. He's basically making a
sentencing argument through this witness. This is improper.
MJ: Captain Callahan?
IMC: Sir, again I think the witness is properly explaining why
he believes that Commander Penland has rehabilitative potential.
MJ: I'll allow the testimony along those lines, although
obviously the ultimate sentence in this case rests with the members.
IMC: Thank you, Your Honor.
MJ: Commander, you can continue.
WIT: I think that to confine Commander Penland would not be in
the best interest of anybody. I think that to dismiss Commander
Penland would not be in the best interest of anybody. My--and the
977
reason why I say that is I know that as short as a week ago, week and
a half ago I was in Thailand and Commander Penland called me up and
she told me, she said that----
TC: Objection, sir. Hearsay.
IMC: Again, sir, it's sentencing. Request the rules of evidence
in regards to hearsay be relaxed.
TC: Sir, I'd ask also that you just at least require the proper
decorum of direct examination and that there is a question and answer.
The question was about 10 minutes ago your opinion as to
rehabilitative potential. We're now talking about Thailand and phone
calls to Thailand.
IMC: Sir, and again, it's sentencing. Request the rules of
evidence be relaxed. The Manual for Courts-Martial is very clear that
the rules of evidence do not apply for sentencing if Defense request
to be relaxed. We're dealing with a very senior officer here. It's
not inappropriate to allow him to share his thoughts independent of me
to these members' panel. This isn't a yes--I ask the commander yes or
not questions all the way through.
MJ: Well, as I said, I've given you some latitude, Counselor,
but again this isn't an open-mic forum either. We do have certain
rules of procedure. My only concern is, without any constraints on
the testimony, that we may open doors that are better left closed and
I think you run the risk if you go with a free form of testimony, but
I'll let you run that risk.
IMC: Yes, sir.
978
MJ: But again, if we could maintain at least some focus on the
principles of sentencing, that would be helpful I think for the
members more than just a rambling narrative.
IMC: Yes, sir.
Q. Sir, do you know approximately how much time and money the
Navy invests into an officer that's reached the point in their career
that Commander Penland has reached?
A. No, I don't know the exact amount, but certainly a lot of
money, a lot of time.
Q. And, sir, can you please describe her as a person, what
type of character that she has, do you feel she has, even at this
point standing here before this court-martial.
A. My opinion of Commander Penland even after what I heard
here, like I said, it shocks me. But I don't know. She was found
guilty and so you believe that if a person is found guilty of an
issue, then they done it. I believe--I don't feel--my opinion of her
has not diminished.
Q. Do you believe, sir, that this is an officer that would be
capable of still providing valuable service to the United States Navy,
that she would still be an asset to the Navy?
A. Yes, I do. Performance wise, yes, I do.
IMC: Thank you, sir.
Thank you, Your Honor. I have no further questions.
MJ: Lieutenant Commander Messer, questions for the witness?
TC: Just briefly, sir.
979
CROSS-EXAMINATION
Questions by the trial counsel:
Q. Commander, an officer with 18 years experience, the
experiences that Lieutenant Commander Penland has had, both as an
enlisted Sailor and as a commissioned officer, don't you think she
should have known better at that point? I mean, you talk about all of
this experience, all of this--all of these things that she's gained
through her Naval service and how that's an asset to the Navy, but
isn't that also make--beg the question what the heck was she thinking
when she did this?
A. Yes, it does.
Q. And wouldn't you agree that someone so close to getting to
a 20-year milestone of their career, someone with so many years
invested, when you're talking about rehabilitative potential, we're
past rehabilitation here and we're at the point where what's left to
rehabilitate? This is someone towards the end of their career
possibly, certainly well past the midpoint. So when you're talking
rehabilitative potential, isn't it kind of a little too late in the
game for that?
A. No.
Q. Now, you said that you didn't believe confinement was
appropriate or dismissal. I mean, obviously Commander Penland has
been convicted of some serious offenses here. What kind of message
does that send to the deck plate Sailor in the fleet when you have
someone convicted at a general court-martial but they don't receive
980
any serious type of punishment? Don't you think that's sounds--sends
a contradictory message to the Sailors in the fleet?
A. In regards to this particular case here?
Q. Yes, sir.
A. I think that while the charges or the offenses that
Commander Penland was found guilty of, I think that it does not reach
that level of to confine someone. Yes, sir.
Q. So you're comfortable with the notion that these offenses
go out to the fleet, people know that a senior officer, an O-4 with 18
years experience, was convicted of these things and then they're going
to read but the Sailor got no confinement and was not dismissed from
the Naval Service, and you're comfortable with that?
A. In this particular case here, yes.
TC: Thank you, sir.
MJ: Captain Callahan, redirect?
IMC: No. Thank you, Your Honor.
MJ: Questions from our members? Negative response from all
panel members.
[The witness was excused and remained in the courtroom.]
MJ: And I'll just note for the record the Commander testified
that he has heard the testimony in this case and he has sat through
the trial, without objection from either side, so that's the basis for
that testimony.
Further evidence from the Defense on sentencing matters, or
do you desire a brief recess, Captain?
981
IMC: Desire a brief recess, Your Honor.
MJ: Very well. Members, please cover your notes. Subject to
my standard instructions, you may depart on recess. Please reassemble
at 10 minutes to the hour.
BAILIFF: All rise.
[All persons did as directed.]
MJ: Members may depart. Court stands in recess. Carry on.
[The members withdrew from the courtroom.]
[The court-martial recessed at 1436 hours, 24 May 2008.]
[END OF PAGE]
982
[The Article 39(a) session was called to order at 1545 hours, 24 May
2008.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time.
During the recess, the court has received and marked a
number of exhibits. Prosecution Exhibit 26 for identification is the
personal data sheet. During the recess, both sides had an opportunity
to review and suggest changes to this particular exhibit.
Lieutenant Commander Messer, does the Government desire to
enter into evidence Prosecution Exhibit 26 for identification?
TC: Yes, sir.
MJ: Any objection from the Defense?
IMC: No, Your Honor.
MJ: There being no objection, Prosecution Exhibit 26 for
identification will now be received into evidence and the words "for
identification" will be deleted by our court reporter, and the parties
may publish the exhibit at an appropriate time.
Also, during the exhibit--during the recess Defense
Exhibit A for identification was received by the Court.
Lieutenant Commander Messer, have you had an opportunity to
review Defense Exhibit A for identification?
TC: I have, sir.
MJ: Captain Callahan, would you like to move that exhibit into
evidence at this time?
983
IMC: Yes. Please, Your Honor.
MJ: Very well. Lieutenant Commander Messer, any objection to
Defense Exhibit A for identification?
TC: No objection from the Government, sir.
MJ: There being no objection, Defense Exhibit A for
identification will be received into evidence; the words "for
identification" will be stricken by our court reporter, and the
exhibit may be published to the members at an appropriate time.
Also, during the extensive recess, I provided to counsel
Appellate Exhibit LXIII, a redraft of the sentencing instructions.
There are still some modifications that need to be made momentarily,
but the most significant modification was to delete the punishment of
loss of lineal numbers. Apparently that is a relic of the electronic
Bench Book. Having reviewed the 2008 Manual for Courts-Martial,
specifically Rule for Courts-Martial 1003, lineal numbers loss is no
longer an authorized punishment and, therefore, that section was
removed. I also made changes to reflect input from counsel to
reflect that Lieutenant Commander Penland desires to exercise her
right to remain silent and does not--or at least is not anticipated to
provide any statement during the sentencing hearing. Let me confirm
that choice with Lieutenant Commander Penland.
Lieutenant Commander Penland, is it correct that you desire
to exercise your right to remain silent and not make a statement
during the sentencing hearing?
ACC: Yes, sir.
984
MJ: Have you had an opportunity to discuss this matter with
your defense counsel?
ACC: Yes, sir.
MJ: And is it your personal decision to remain silent and not
offer a statement to the court?
ACC: Yes, sir.
MJ: Very well. I will properly instruct the members concerning
that right, that they may not hold it against you in any manner.
Counsel, for planning purposes, it is my intention to
instruct the members substantially as reflected in Appellate Exhibit
LXIII, so you may rely upon the instructions contained therein in aid
of your arguments.
When the members return momentarily, we will receive any
additional evidence on sentencing matters and then the counsel will be
offered an opportunity to argue as to an appropriate sentence in this
case. We'll take then a brief recess so I can finalize the draft
sentencing instructions and also receive the sentencing worksheet
after your review.
Are there other matters we need to address prior to having
the members rejoin us?
IMC: Not from Defense, Your Honor.
TC: Nothing from the Government, sir.
MJ: Very well. This 39(a) session is concluded.
Bailiff, please ask the members to rejoin the court.
[The Article 39(a) session concluded at 1549 hours, 24 May 2008.]
985
[The court-martial was called to order at 1549 hours, 24 May 2008.]
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: My apologies, members, for the extensive time it took
outside of your presence. During that time, we needed to verify
certain information that will be provided to you later to ensure that
it was accurate. Having done so, I suspect and hope that the
proceedings will be conducted with fewer future delays.
Captain Callahan--let me just also note. During the
recess, at a hearing outside your presence, the Court did receive a
number of exhibits that will be offered to you for your consideration,
to include Prosecution Exhibit 26 and Defense Exhibit A.
Captain Callahan, does Defense have any additional evidence
to offer the members on sentencing matters at this time?
IMC: No, Your Honor.
MJ: Very well. Does the prosecution have any evidence in
rebuttal?
986
TC: No, sir.
MJ: Members, it would appear that at this time all the evidence
that has been introduced and that will be introduced has been done so
on sentencing matters.
In a moment I will invite counsel to argue their view as to
an appropriate sentence, bearing in mind again that you and you alone
bear the responsibility of determining what the appropriate sentence
is in this case. You certainly may take notes of these arguments as
you so desire.
After counsel have provided their arguments, I'll take
another brief recess to finalize my sentencing instructions with
counsel outside your presence and then ask you to return for the
instructions.
Lieutenant Commander Messer, you may argue as to an
appropriate sentence at this time.
TC: Thank you, Your Honor.
Members, as prosecuting attorney in this case, I take no
pleasure in making this sentencing argument before you. We have
before us an accused with 18 years of service in the United States
Navy. Although you have found her guilty of five of the six
specifications before this court, she's a member of the Navy family
and she is a fellow Naval officer.
With that said, she has been found guilty of very serious
misconduct. Because of this the Government asks you for a dismissal.
987
Now, in the alternative, if you find a dismissal not to be
appropriate punishment, the Government asks for 60 days' confinement,
forfeiture of 2 months' pay--or excuse me--forfeiture of one-half of
two months' pay, that's pay and allowances, and a reprimand.
Now, let me explain to you why I think a dismissal--why the
Government feels a dismissal is appropriate punishment in this case.
The accused, as I mentioned, 18 years of service, but this was not an
instance of a momentarily lapse in judgment, a bad decision. This was
a premeditated and planned course of action over a period of weeks and
months. A senior officer who acts this way in such a prolonged
period, as indicated to you, not someone who just has a bad judgment
or a momentarily lapse of judgment, this is someone who has a
character flaw. It's a character flaw that is deeply embedded in this
person and maybe it hadn't surfaced earlier in their career, maybe it
had and no one noticed, but it surfaced now, and it's not something
that can be rehabilitated and fixed. It's not something where you can
just say to the person don't do it again and, okay, it won't happen
again. It's something that is there and it will always be there.
It's something that should prohibit this person from wearing the
uniform of a commissioned Naval officer. And that is why I ask you
for the severe punishment of dismissal, feel very strongly that's--
that it's appropriate.
You've heard all the evidence in this case. You've heard
the testimony. You've convicted based on that. You've heard the
character evidence on both sides and you've seen these people, these
988
people that surrounded this trial on the stand. You know what
happened and you know that someone with this type of service, 18
years, both as an enlisted Sailor and as an officer, and then to get
to that point in their career and to make those decisions and take
that course of action is something that is unexcusable.
So I ask you to make the right decision here and return a
sentence of dismissal from the Naval Service. Thank you.
MJ: Captain Callahan, your argument as to an appropriate
sentence, please.
IMC: Thank you, Your Honor.
Good afternoon, ladies and gentlemen. Ladies and
gentlemen, first of all the Defense does not dispute the charges are
important charges and should, in fact, be charges under the UCMJ.
It is important to consider what Commander Penland was, in
fact, convicted of. She was convicted of purely military offenses.
Are they justifiable offenses, yes, they certainly are and we hold
people to a higher standard in the military, and this court-martial
has done that by giving a federal criminal conviction to this officer
for things that are not even a conviction in the outside world. In
the outside world, there aren't convictions for things like adultery,
for orders violations. It's not your--what's considered--typically
considered criminal behavior such as assault, battery, theft, things
along those lines; and because of that it is very important to
consider what is an appropriate punishment for something that is of a
military nature.
989
So first and foremost, ladies and gentlemen, confinement is
wholly inappropriate for a crime such as this. Confinement is
appropriate for your traditional true crimes, for things that are
crimes on the outside, for theft, for drug use, for assault, for
battery, for things along those lines; that is where appropriate--
where confinement rests appropriate. One of the important things for
confinement is to ensure protection of society. That's not an issue
in this case. So up front, ladies and gentlemen, I would respectfully
request that you take confinement off the table. That is not properly
considered for crimes of these nature.
So ladies and gentlemen, really what that comes down to is
what the Government has, in fact, asked for, which is the dismissal.
Is a dismissal appropriate in this case? Ladies and gentlemen, the
military judge will instruct you about a dismissal and about how it's
a punitive discharge and how it is a severe punishment which will
cause her to lose virtually everything that she's gained over these
past 18 years of service. It will cause her to lose her retirement,
her medical benefits and it will be a permanent black mark, in
addition to already having a permanent black mark of a federal
conviction that will follow her around for the rest of her life. It
is not an administrative separation. Ladies and gentlemen, a big
difference between a punitive discharge, which is in this case is a
dismissal, and an other than honorable discharge or an honorable
discharge awarded by a BOI.
990
Ladies and gentlemen, you've all been in the Navy for a
long time. You know the likely course of action at the end of this
court-martial if she's retained. She will likely face a board of
inquiry, not for this court-martial to determine, but, ladies and
gentlemen, that's where any separation of this officer is appropriate,
at that level, not here at the level of a punitive discharge. The
conduct that Commander Penland did was wrong, but it was not so
seriously wrong as to merit so serious a punishment. Again, it is
conduct of a purely military nature which should be handled at a
particular, peculiar military affair, a board of inquiry, and not
given a punitive discharge. So, ladies and gentlemen, a punitive
discharge is not appropriate in this case.
The Defense would respectfully request that you give
Lieutenant Commander Penland a punitive letter of reprimand. That is
the appropriate punishment in this case. She has already been
severely punished by the fact that she has been given a general court-
martial conviction. This is a criminal conviction that will follow
her for the rest of her life. She has been held accountable for what
she has done. She's been found guilty. The Navy has sent a message
to other Sailors that it doesn't matter how senior you are, doesn't
matter what rank you are, how long you've been in the Navy, this won't
be tolerated and you will be held accountable and you will be
punished.
But at the same time it's not appropriate to crush and ruin
the rest of somebody's life for something along the lines of what
991
she's been convicted of here today.
Ladies and gentlemen, she's close to being able to retire
and this officer still has things to offer to the United States Navy.
The Navy spent a lot of time and money training her and bringing her
to where she is today and she can certainly be sent back to work and
be a productive member of the Navy.
Ladies and gentlemen, this officer does have rehabilitative
potential. You heard testimony of the great things this officer has
done. This officer can do great things again. Whether they be great
things in the Navy or great things out in society, this officer can do
great things again. But please, please do not crush this individual
and disproportionately punish her for the wrongs that she has done by
giving her the punitive discharge that is overly severe a punishment
which would hamper her ability to continue on with her life and be
productive even as a member of society.
And so, ladies and gentlemen, I respectfully request that
you consider all that is entailed in a punitive discharge, and when
you go back and form an appropriate sentence in this case, that it not
include a punitive discharge of a dismissal. Thank you.
MJ: Thank you, counsel, for your presentations and arguments on
behalf of the Court.
Members, I need to finalize my instructions with counsel.
I don't anticipate that will be a very long time required. Subject to
my standard instructions, if you would please cover your notes and
reassemble in the deliberation area at 20 minutes after the hour.
992
Court stands in recess. The members may depart.
BAILIFF: All rise.
[All persons did as directed, and the members withdrew from the
courtroom.]
MJ: Counsel, if we could reassemble in about 10 minutes. Carry
on, please.
[The court-martial recessed at 1600 hours, 24 May 2008.]
[END OF PAGE]
993
[The Article 39(a) session was called to order at 1620 hours, 24 May
2008.]
MJ: This 39(a) session is called to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, except for
the members who are still in recess.
During the recess, the Court received a revised sentence
worksheet; that's been marked Appellate Exhibit LXII.
Do counsel have any objections to the revised sentencing
worksheet?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very good. During the recess, I also provided to counsel
what has been marked Appellate Exhibit LXIV which is my final draft of
the sentencing instructions.
With regard to Page 2, Line 25, I will insert the
appropriate pay figure which apparently is $9,131; that's reflected on
the sentence worksheet. I made some other minor typographical edits,
as well.
Do counsel have any objections to the proposed sentencing
instructions or requests for additional instructions not already on
record?
IMC: No, Your Honor.
TC: No, sir.
994
MJ: Then also for your benefit I intend to respond to the
members' questions as follows: I will tell them I intend to respond
to the questions submitted earlier as Appellate Exhibits LIX and LX
after they have announced the sentence in the case. I will further
instruct them that the matters raised by those questions may have no
bearing on their determination of an appropriate sentence in the case,
and that referred back to whether the members could recommend perjury
charges or raise that to the attention of the proper authority.
Any objection to the Court's proposed handling of the
members' questions that were asked earlier?
TC: No, sir.
IMC: No, Your Honor.
MJ: Any other matters we need to address on the record before
the members join us?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. This 39(a) session is concluded.
Bailiff, please ask the members to join our court.
[The Article 39(a) session concluded at 1622 hours, 24 May 2008.]
[END OF PAGE]
995
[The court-martial was called to order at 1623 hours, 24 May 2008.]
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court is called back to order.
Let the record reflect that all parties present prior to
the recess are again present before the Court at this time, to include
all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Bailiff, if you would please approach and provide a copy of
Appellate Exhibit LXIV to each member.
[The bailiff handed copies of AE LXIV to all members.]
MJ: Members of the court, before I go into the instructions on
sentencing, it is my intent to respond to your questions that were
submitted earlier and marked as Appellate Exhibits LIX and LX. I will
respond appropriately to those questions after you have announced the
sentence in this case. You are now instructed that the matters raised
by those questions may have no bearing on your determination of an
appropriate sentence in this case.
Members, again, this is your copy of my instructions on
sentencing. You may mark on this copy that you have received if you
so desire.
996
Members of this court, you are about to deliberate and vote
on the sentence in this case. It is the duty of each member to vote
for a proper sentence for the offenses of which the accused has been
found guilty. Your determination of the kind and amount of
punishment, if any, is a grave responsibility requiring the exercise
of wise discretion. Although you must give due consideration to all
matters in mitigation and extenuation, as well as those in
aggravation, you must bear in mind that the accused is to be sentenced
only for the offenses of which she has been found guilty. You must
not adjudge an excessive sentence in reliance upon possible mitigating
action by the convening or higher authority. A single sentence shall
be adjudged for all the offenses of which the accused has been found
guilty.
Maximum Sentence: The maximum punishment for all the
offenses of which the accused has been found guilty is: Dismissal,
forfeiture of all pay and allowances, a fine, a reprimand, and 10
years' confinement.
Bear in mind that the maximum punishment is a ceiling on
your discretion. You are at liberty to arrive at any lesser sentence
or a sentence of no punishment at all based upon your own evaluation
of the evidence presented.
Each type of punishment is separate and does not, by
implication or otherwise, include any other type of punishment,
subject to one exception that I will discuss with you shortly.
I will now describe with more detail the various penalties
997
that may be adjudged by this court.
Reprimand: This court may adjudge a reprimand, which is in
the nature of a censure. The court shall not specify the terms or
wordings of any adjudged reprimand.
Restriction: This court may adjudge restriction to limits
for a maximum period not exceeding 2 months. For such a penalty, it
is necessary for the court to specify the limits of the restriction
and the period it is to run. Restriction to limits is not enforced to
exempt an accused from any military duty she is assigned.
Hard Labor without Confinement: This court may sentence
the accused to hard labor without confinement for a maximum period not
exceeding 3 months. Such hard labor would be performed in addition to
other military duties which would normally be assigned. In the usual
course of business, the immediate Commanding Officer assigns the
amount and character of the hard labor to be performed.
Confinement: As I have indicated, this court may sentence
the accused to confinement for a maximum of 10 years. A sentence to
confinement should be adjudged either in full days, or full months, or
full years; fractions should not be employed. For example,
confinement for a month and a half should be announced as confinement
for 45 days. Likewise, confinement for a year and a half should be
announced as confinement for 18 months. Should you desire to combine
the punishments of confinement, restriction, and or hard labor without
confinement, you should request further instructions from me on how to
do that.
998
Forfeiture: This court may sentence the accused to forfeit
a maximum of all pay and allowances. A forfeiture is a financial
penalty which deprives an accused of military pay as it accrues. In
determining the amount of forfeiture, if any, the court should
consider the implications to the accused of such a loss of income.
Unless a total forfeiture is adjudged, a sentence to a
forfeiture should include an express statement of a whole dollar
amount to be forfeited each month and the number of months the
forfeiture is to continue.
As indicated by the information on the charge sheet, and
I'll also add on the sentence worksheet that I'll provide to you, the
accused is an O-4 with over 18 years total service, her total pay and
allowances being $9,131 per month.
This court may adjudge any forfeiture up to and including
forfeiture of all pay and allowances. The court is at liberty to
arrive at any lesser or to adjudge a sentence containing no forfeiture
at all.
Automatic Forfeitures of Pay and Allowances: As a result
of Article 58(b) of the UCMJ, by operation of law, any approved court-
martial sentence that includes either a punitive discharge and
confinement, or confinement for more than 6 months, results in the
forfeiture of all pay and allowances due during the period of
confinement. This is the one exception to which I referred earlier.
Notwithstanding the provisions of Article 58(b), and without regard to
whether the court includes confinement or a punitive discharge in its
999
sentence, this court may properly include an explicit sentence to
forfeit all pay or allowances or any lesser amount or duration as part
of any sentence, if the court believes that such forfeiture of pay and
allowances should be part of the sentence.
Fine: The court may sentence the accused to pay a fine to
the United States as an alternative to, or in addition to, forfeiture
of pay. A fine, when ordered executed, makes the accused immediately
liable to the United States for the entire amount of money specified
in the sentence. A fine normally should not be adjudged unless an
accused--against an accused unless she was unjustly enriched as a
result of the offenses for which she was convicted.
In determining the amount of fine, if any, the court should
consider the accused's income, earning capacity and financial results,
the burden the fine would impose on the accused or any other person
dependent on the accused, and whether the accused can pass the cost of
the fine on to others.
In your discretion, you may adjudge a period of confinement
to be served in the event an adjudged fine is not paid. Such
confinement to enforce payment of the fine would be in addition to any
other confinement you might adjudge. The total of all confinement
adjudged, however, may not exceed the maximum confinement for the
offenses.
Punitive Discharge: This court may adjudge a punitive
discharge in the form of a dismissal. Such a punitive discharge
deprives one of substantially all benefits administered by the
1000
Department of Veterans Affairs and, for that matter, by the Department
of the Navy.
A dismissal should be reserved for those who, in the
opinion of the court, should be separated under conditions of dishonor
after conviction of a serious offense or either--conviction of a
serious offense or offenses of either a civil or military nature
warranting such severe punishment.
In this case, if the court determines to adjudge a punitive
discharge, it may sentence the accused to a dismissal. No other type
of discharge or separation may be adjudged. Accordingly, you are not
authorized to adjudge any type of administrative discharge.
No Punishment: Finally, if you wish, you may sentence the
accused to no punishment.
Evidence on Sentencing: In selecting a sentence, you
should consider all matters in extenuation and mitigation, as well as
those in aggravation, whether introduced before or after your
findings. Thus, all the evidence that is relevant to your findings of
guilty in this case is relevant on the subject of sentencing.
Among the matters you should consider are:
The accused's military character, as evidenced by the
testimony of Captain Noel and Captain Johnson, as well as Commander
Milner;
The accused's record in the service for good conduct, as
reflected by her two Good Conduct Medals;
The prior honorable discharge of the accused;
1001
The accused's education which includes bachelor and
master's degrees;
That the accused is a graduate of numerous service schools;
The accused's performance, as evidenced by the testimony of
Captain Noel, Captain Johnson and Commander Milner;
That the accused is entitled to wear the medals and awards
listed in Prosecution Exhibit 16--26, correction;
The nature of the offenses of which the accused has been
convicted;
Prosecution Exhibits 1 through 3, 5 through 26, Defense
Exhibit A; and
The testimony of all the witnesses, including the witnesses
heard before findings.
Accused's Failure to Testify: The accused has an absolute
right to remain silent. The court will not draw any inference adverse
to the accused from the fact that she did elect to testify under oath
as a witness during the sentencing portion of this trial.
Principles of Sentencing: Our society recognizes five
principal reasons for the sentence of those who violate the law. They
are:
(1) Protection of society from the wrongdoer;
(2) Punishment of the wrongdoer;
(3) Rehabilitation of the wrongdoer;
(4) Preservation of good order and discipline in the
military; and
1002
(5) The deterrence of the wrongdoer and those who know of
his or her crime and his or her sentence from committing the same or
similar offenses.
Voting Procedures on Sentencing: When you close to
deliberate and vote, only the members will be present during your
closed session deliberation, and your deliberation should begin with a
full and free discussion on the subject of sentencing. The influence
of superiority in rank shall not be employed in any manner to control
the independence of the members in the exercise of their judgment.
When you have completed your discussion, then any member
who desires to do so may propose a sentence, and you do that by
writing out on a slip of paper a complete sentence. The junior member
of the panel will collect the proposed sentences and submit them to
the president who will arrange them in the order of their severity.
You then vote on the proposed sentences by secret written
ballot. All must vote; you may not abstain. Vote on each proposed
sentence in its entirety, beginning with the lightest, until you
arrive at the required concurrence, which is two-thirds or 6 members.
The junior member will then collect and count the votes. The count is
then checked by the president who will announce the result of the
ballot to the members.
If you vote on all of the proposed sentences without
arriving at the required concurrence, again 6 members, you then must
repeat the process of proposing and voting on the sentences. The
second time around, if a member desires to do so, you may vote on all
1003
new proposals or proposals rejected on an earlier vote. But once a
proposal has been agreed to by the required concurrence, that is,
6 members, then that becomes your sentence.
You may reconsider your sentence at any time prior to its
being announced in open court, but after your determination--after you
have determined your sentence, if any member suggests you reconsider
the sentence, open the court and I shall give you further specific
instructions for the procedure on how to do so. Should that occur,
when the court has reassembled, the president should announce that
reconsideration has been proposed without reference to whether the
proposed reballot concerns increasing or decreasing the sentence.
As an aid in putting your sentence in proper form, you may
use Appellate Exhibit LXI, a sentence worksheet.
Bailiff, please approach and provide Appellate Exhibit LXI
to our senior member, Captain Gentile.
[The bailiff handed AE LXI to the president.]
MJ: The worksheet is not intended to express any opinion either
by me or by counsel as to what would be an appropriate sentence in
this case, for you alone have the responsibility to make that
determination.
Captain Gentile, with regard to the worksheet, when you
finalize your sentence, cross out the inapplicable portions, fill in
any applicable blanks, and sign the form at the bottom.
If, during your deliberations, you have any questions
concerning sentencing matters, please open the court and I will take
1004
those matters up with you. Again, I would ask that if you have any
questions, write them down on one of the forms provided so that an
accurate record of your question can be maintained.
You may not consult the Manual for Courts-Martial or any
other writing not admitted, and any instructions must not be
interpreted as indicating any opinion on my part as to what would be
an appropriate sentence in this case.
In your deliberations room, you will have all the exhibits
that have been admitted into evidence. Please do not write on any of
these exhibits, except obviously for the sentence worksheet.
Members, in accordance with your best judgment, based upon
the evidence that has been presented in this court, and your own
experience and general background, you should select a sentence which
best serves the ends of good order and discipline in the military, the
needs of this accused, and the welfare of society.
If there are any questions about these instructions,
members, please raise your hands. Negative response from all panel
members.
Do counsel for either side have any objections not already
on record to the instructions given or requests for additional
instructions not already on record?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. Bailiff, if you would please approach our court
reporter and retrieve the exhibits that have been properly admitted
1005
into evidence, specifically Prosecution Exhibits 1 through 26, except
Number 4, and Defense Exhibit A.
Captain Gentile, if you would verify that those exhibits
are in the folder that's been provided to you, sir. Again, that's
Prosecution Exhibits 1 through 26, except for Number 4, and Defense
Exhibit A.
PRES: [Verifying receipt of applicable exhibits.] Did you say
1 through 26?
MJ: Yes, sir, except for Number 4.
PRES: Oh, right, that's correct. And Defense Exhibit A.
MJ: Very good, sir.
Members of the Court, once again, should it become
necessary for you to leave the deliberation room for any purpose, we
must return to an open session of court, recess, reassemble, and again
formally close for deliberations. You are reminded that this is a
vital legal requirement to ensure that you are all present at all
times for your deliberations.
Are the members prepared to deliberate as to an appropriate
sentence, Captain?
PRES: We are.
MJ: Very well, sir. This court is closed for your
deliberations. You may depart for the deliberation room.
BAILIFF: All rise.
[All persons did as directed, and the members withdrew from the
courtroom.]
1006
MJ: Court is closed. Carry on.
[The court-martial closed at 1638 hours, 24 May 2008.]
[The court-martial opened at 1815 hours, 24 May 2008.]
MJ: Bailiff, please ask the members to join us.
BAILIFF: All rise.
[All persons did as directed, and the members entered the courtroom.]
MJ: Members, please take your seats when you arrive at them.
[The members did as directed.]
MJ: This court will come back to order.
Let the record reflect that all parties present prior when
the court closed for deliberations are again present before the Court,
to include all of our members.
All others, please be seated.
[All persons did as directed.]
MJ: Captain Gentile, has the court determined an appropriate
sentence in this case?
PRES: Yes, we have, Your Honor.
MJ: Sir, is that sentence accurately reflected on the
sentencing worksheet?
PRES: Yes, it is.
MJ: Have you signed the worksheet, sir?
PRES: Yes, I have.
MJ: Bailiff, if you would please bring the worksheet to me so I
can determine if the sentence is in appropriate format.
[The bailiff handed AE LXI to the military judge.]
1007
MJ: Thank you. [Reviewing AE LXI.]
Sir, if I would ask you to cross out all the punishments
that were not selected.
PRES: No problem. Thanks.
[The bailiff handed AE LXI to the president; the president crossed out
punishments not selected.]
MJ: And if I could see the worksheet once again, please.
[The bailiff handed AE LXI to the military judge.]
MJ: [Reviewing AE LXI.] The sentence is in proper format.
Bailiff, if you would please return the sentence worksheet
to our senior member.
[The bailiff handed AE LXI to the president.]
MJ: Accused and Counsel, please rise.
[The accused and her counsel did as directed.]
MJ: Captain Gentile, if you would please announce the sentence
of this court.
PRES: Lieutenant Commander Syneeda L. Penland, Supply Corps,
United States Navy, court-martial sentences you: To be reprimanded; To forfeit $4500 of your pay and allowances per month for 2 months; To be confined for 60 days.
MJ: Thank you. Please be seated.
[The accused and her counsel did as directed.]
MJ: Bailiff, if you would retrieve the sentencing worksheet
along with the other exhibits and return them to our court reporter.
[The bailiff did as directed.]
1008
MJ: Members, I promised you some answers to the questions you
raised that were outlined in Appellate Exhibit LIX and L. I think my
initial answer is going to be to recite to you one of our rules for
courts-martial, specifically Rule for Courts-Martial 301:
"Any person may report an offense subject to trial by
court-martial. Ordinarily any military authority who receives a
report of an offense shall forward it as soon as practicable the
report and any accompanying information to the immediate commander of
the suspect."
You are also advised that a record of this trial will be
provided to the Convening Authority, Commander Navy Region Southwest,
who will have his staff judge advocate review that record. You, as
Naval officers, have an opportunity, and perhaps a responsibility if
you feel necessary, to bring matters to the Convening Authority's
attention that are related to your duties here. And I'll leave it at
that.
I do want to give you this additional information to assist
you to determine what you can discuss about the case now that it's
over for you.
I'll first remind you that when you took your oaths as
members, you swore not to disclose or discover the vote or opinion of
any particular member of the court, unless required to do so in the
due course of law. This means that you may not tell anyone about the
way you or anyone else on the court voted or what opinion you had or
they had, unless I or another judge require you to do so in open
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court. You are each entitled to that privacy.
On the other hand, you are free to talk to anyone about the
case, including me, the attorneys, or anyone else. You can also
decline to participate in such discussions, if that's your choice.
Your deliberations are carried on in the secrecy of the
deliberation room to permit the utmost freedom of debate and so that
each of you can express your personal views without fear of being
subjected to any public scorn or criticism by the accused, the
Convening Authority, or by anyone else.
In deciding whether to answer questions about this case
and, if so, what to disclose, you should have in mind your own
interests and the interests of the other members of your court.
Does any member have any questions at this time that I can
answer? Negative response from all panel members.
Members, I thank you for your service during these extended
sessions, especially for your focus and for your consideration, and in
a moment you are relieved and you may return to your normal duties,
which I hope includes liberty. Please leave behind any exhibits, and
I think we've collected those. You can take your notes with you, if
you'd like, or you can leave them behind and they'll be destroyed by
our court reporter.
Members of the court, thank you. You may stand down and
resume your normal duties. You are excused.
BAILIFF: All rise.
[All persons did as directed.]
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MJ: Members may depart.
[The excused members withdrew from the courtroom.]
MJ: Please be seated.
[All persons did as directed.]
MJ: This 39(a) session is called to order.
Let the record reflect that the members have departed from
our courtroom.
Let me verify with the parties. There is no pretrial
agreement in this case, correct?
TC: That's correct, sir.
IMC: Correct, Your Honor.
MJ: Very well. Captain Callahan, have you had an opportunity
to discuss appellate and post-trial rights with your client?
IMC: I have, Your Honor.
MJ: If I could retrieve the appropriate appellate exhibit.
[The court reporter handed AE LXV to the military judge.]
MJ: Lieutenant Commander Penland, I am holding up Page 2 of
Appellate Exhibit V [sic]. Above the words "Signature of Accused"
there is a signature. Is that your legal signature?
ACC: [Shaking head.]
MJ: You're shaking your head. Did you sign this document?
ACC: [No response.]
MJ: Commander?
ACC: [No response.]
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MJ: Let me just approach it in a different way. Captain
Callahan, did your client sign this document?
IMC: She did, Your Honor.
MJ: And did you have an opportunity to explain and discuss all
the appellate and post-trial rights that are outlined in this
document?
IMC: I did, Your Honor.
MJ: According to this document, your client has elected to have
her copy of the record of trial along with the staff judge advocate or
legal officer recommendation to be delivered to you. Is that correct?
IMC: It is, Your Honor.
MJ: Very well. Appellate Exhibit LXV will be appended to the
record of trial in this case.
And at this point, counsel, is there anything else we need
to address on the record?
TC: No, sir.
IMC: No, Your Honor.
MJ: Very well. This court-martial stands in adjournment.
Carry on.
[The court-martial adjourned at 1822 hours, 24 May 2008.]
[END OF PAGE]
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AUTHENTICATION OF RECORD OF TRIAL In the case of LIEUTENANT COMMANDER SYNEEDA L. PENLAND SERVICE CORPS, U.S. NAVY NAVAL COASTAL WARFARE GROUP ONE I have examined the record of trial in the foregoing case. _____________________2008 ________________________________ K. W. MESSER LCDR, JAGC, USN TRIAL COUNSEL I have examined the record of trial in the foregoing case. _____________________2008 ________________________________ P. J. CALLAHAN CAPT, JAGC, USMC INDIVIDUAL MILITARY COUNSEL _____________________2008 ________________________________ R. W. REDCLIFF CDR, JAGC, USN MILITARY JUDGE
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