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waive them.I don't think that really plays into the analysis. Itmay be a small factor, but just because -- even assumingthat the defense is right about that, that's not asufficient factor for the waiver of rights and theconfession to be involuntary.And that would be the only response, sir.

MJ: /Ihave no evidence as to this alleged confession made bySergeant Ehlers. There's references both in theAppellate Exhibit XXVI, a passing reference by SpecialAgent Meulenberg. There' s nothing in the body of thegovernment's motion that I see.yCan you point to me, government, any evidence you / O Q J ?provided me about,this statement we're even talkingabout? '

TC: Sir, the only evidence is in a Results of Interview, andthe government has not provided that to the court.MJ: I don't even know -- I assume based on the testimony ofSergeant Ehlers for the limited purposes of the motionhe made oral responses to Special Agent Meulenberg.TC: Yes, sir.MJ: Is someone going to present me some evidence as to thoseoral responses?TC: Yes, sir. I can make the court a copy of that right now.MJ: The court will be in recess while you do that.The Article 39 (a) session recessed a t 1812, 31 July 2007.The Article 39 ( a ) session wa s called to order at 1821,31 July 2007.MJ: The court is called back to order. All parties present

when the court last recessed are once again present.During the recess, I was provided what has now beenmarked as Appellate Exhibit XXIX. It appears to be adocument entitled U.S. Naval Criminal InvestigativeService Investigative Action dated 27 May 2005.

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I take it, Captain Ellis, you want me to consider thisas evidence of the statements made allegedly by SergeantEhlers?TC: Yes, sir.MJ: Lieutenant Melowcowsky, you've been provided a copy ofAppellate Exhibit XXIX?DC: Sir, I have.MJ: Any objection to my considering this as part of thegovernment's response to your motion?DC: f Yes, sir. We'd object on the grounds of authenticity andthe cross-examination. We don't have the opportunity to

cross-examine the witness to determine -- I mean,clearly this is a summary. We don't know what he wassummarizing or in his mind or what details he may or nothave left out.MJ: C Your concerns are shared and noted, but your objection is

\ overruled.DC: Yes, sir.MJ: Additional grounds for your objection?DC: I'm sorry?MJ: Additional grounds for your objection?DC: No, sir.MJ: Very well.

I will consider Appellate Exhibit XXIX.Additional evidence from either side?

TC: No, sir.DC: No, sir.MJ: Does either side feel the need to argue in light -- argueagain in light of Appellate Exhibit XXIX?TC: No, sir.

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