Court Martial of LCDR Syneeda Penland (partial draft released by Penland to media)

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

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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]

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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:

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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.

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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?

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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.

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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.


ACC: Yes, sir.

MJ: And your civilian defense counsel could represent you alone

or along with any military defense counsel that you have.


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

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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.


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.

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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.


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.


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.


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.


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.


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



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.


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.


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.


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.


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.

64

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.


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.

67

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.

68

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.

70

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.


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


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.

75

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.

76

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.


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.

86

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.

89

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?

90

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

91

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


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.


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

103

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.


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?


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


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

113

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.

114

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

115

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.


CROSS-EXAMINATION


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.

116

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.


TC: Just briefly.

[END OF PAGE]

119



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.

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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


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.

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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.


Nothing further, Your Honor. Thank you.



[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.


122


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


follows:

DIRECT EXAMINATION


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.

124

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.

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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

129

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--

137

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

138

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.

139

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.




CROSS-EXAMINATION


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


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.


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.


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.



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.

153

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

158

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

159

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.

160

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

161

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

162

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.

163

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

164

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.

165

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.

166

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.

167

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.


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

168

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

169

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

170

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

171

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.


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.

172

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

173

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.

174

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

175

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

176

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.

177

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?



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]

178

[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.







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.

179

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?


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?

180

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.

181

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.

182

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?




183

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.


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.





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).


[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



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.

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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.


Sir, I have no further questions.


TC: No questions, sir.



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?



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?


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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.


attachment?

IMC: I have, Your Honor.

MJ: Any objection to the Court's consideration of it?


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.

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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

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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?

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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

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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.


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

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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

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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

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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.

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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

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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.

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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?


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?

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TC: No, sir.


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

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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;

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(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.


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?


[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.


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.


MJ: Are there other matters we need to address on the record,

counsel?


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.

214


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.



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


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.


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.





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.


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.


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.


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?


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?


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.

230

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

231

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.

232

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?


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?


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.



MJ: Court is called to order.


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.


MJ: Very well. All be--please be seated.


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


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.


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.


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.


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.


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?


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.


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.


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?


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?




MJ: Anything else we need to address on the record this

morning?


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?


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?


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.


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.


MJ: Very well. The court stands in recess until 0800 hours

Wednesday morning. Carry on, please.


[END OF PAGE]

254


2008.]


case of the United States v. Lieutenant Commander Penland, United

States Navy.







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?


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.


MJ: Any objection to providing it to the members in its present

form, Appellate Exhibit XXXV?

TC: No, sir.


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.


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.


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?


258

MJ: Any objection to the Government's use of it for opening

statement?


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?


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.


MJ: Very well. Court will stand in recess until 0900. Carry

on, please.



MJ: This 39(a) session is called to order.



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.


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.


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.


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


Commander Brendon Doud, United States Navy. Negative


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).


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.


Lieutenant Commander Kristen McCarthy, JAG Corps, United

States Navy Reserve. Negative response from all panel members.

Commander Matthew Masi, United States Navy. Negative


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


Commander Larry Milner, United States Navy. Negative


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


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


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?


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?


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


Do any of you sign, prepare or provide information for the

evaluation or fitness report of any other court-martial member?


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?


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.



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.



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


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 will be unable to follow

my instructions on the law that must be applied to this case?


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.



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.



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: 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


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


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?


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


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.


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.


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


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


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.




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.



MJ: Lieutenant Commander Messer, follow-on questions?

TC: Sir, just briefly.


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.


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.


INDIVIDUAL VOIR DIRE OF CAPTAIN MARY B. NEWTON


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.

303

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.


304

IMC: Please, sir.

MJ: Very well.



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.



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.

305

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.


INDIVIDUAL VOIR DIRE OF CAPTAIN JOSEPH STUYVESANT


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.

306

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

307

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.

308

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.

309

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?


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.

310

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.


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.

311



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.


MJ: ----our questions or your responses with them.

[CAPT Stuyvesant withdrew from the courtroom.]

MJ: And let the record reflect that Captain Stuyvesant has


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.


INDIVIDUAL VOIR DIRE OF CAPTAIN ALLEN D. BOOKER


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.

312

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.

313

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----

314

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?


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?

315

A. No, sir.

TC: I have no further questions.




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.


Thank you, Your Honor. No further questions.

316

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.


INDIVIDUAL VOIR DIRE OF CAPTAIN JODY K. BLONIEN


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?

317

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

318

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.





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.


No further questions, Your Honor.

MJ: Lieutenant Commander Messer, follow up?

TC: Just a few follow up, Your Honor.


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.

321

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, 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.


INDIVIDUAL VOIR DIRE OF COMMANDER KEVIN A. GRUNDY


Q. Still on our list, huh, Captain--Commander?

A. Yes, sir, I am.

Q. Well, welcome back.

322

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

323

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?


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.

325


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


[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


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

329

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,


TC: Yes, sir.



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

330

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.





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?

331

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.



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



[END OF PAGE]

332

INDIVIDUAL VOIR DIRE OF COMMANDER JOHN R. TUCKER


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.

333

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.

334

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.


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

335

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.






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.



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


If we could have Commander Good, please.

[CDR Good entered the courtroom and was seated.]

337

MJ: Let the record reflect that Commander Good has rejoined the

court. All others, please be seated.


INDIVIDUAL VOIR DIRE OF COMMANDER CHARLES P. GOOD


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.

338

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.

340

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

343

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?


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.

344

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.






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: 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



INDIVIDUAL VOIR DIRE OF COMMANDER TONJA L. KELSCH


Q. Commander, I believe that you indicated you know Captain

Blonien.

A. Captain Blonien.

Q. Blonien.

A. Yes, sir.


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.

346

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.

347

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.


TC: Yes, sir.

348


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.





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.


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


350

Please be seated.


MJ: Counsel desire to recall any other members for further

questioning? Lieutenant Commander Messer?

TC: No, sir.



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 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?


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?


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.


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.



Bailiff, please ask the members to rejoin our court if they

are all assembled.


[END OF PAGE]

353

[The court-martial was called to order at 1132 hours, 21 May 2008.]

MJ: All rise.


MJ: Members, please take your seats when you arrive at them.


MJ: This court is called back to order.


the recess are again present before the Court at this time, to include

all of our members.



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.


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.


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.


[END OF PAGE]

355


2008.]

MJ: The 39(a) session is called to order.


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

356

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.


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.


MJ: Other matters we need to address outside the members'

presence?

TC: No, sir.



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.


[END OF PAGE]

359


MJ: All rise.



Captain Booker, you have been seated to the left of our

senior member.

Members, please take your seats.


MJ: All others, please be seated.




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.

360

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

361

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.

362

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


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.

363

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

364

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.


MJ: And if we could depart the building.


365


MJ: Bailiff, if you would please ask the members to join us.

BAILIFF: Yes, sir.

MJ: All rise.





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.



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

366

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

367

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.

371

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.

372

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

374

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


follows:

DIRECT EXAMINATION


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


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?




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: 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.


STOREKEEPER CHIEF STACY L. ZOGAIB, U.S. Navy, was called as a witness

for the prosecution, was sworn, and testified as follows:

DIRECT EXAMINATION


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.


TC: Sir, under 902, Section 11, this is--we've attached to

these records a certificate of authentication and these self-

authenticating records.


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.



IMC: Briefly, sir. Thank you.

CROSS-EXAMINATION


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.




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


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.




panel members.

387


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.


BRIAN DUFFY, civilian, was called as a witness for the prosecution,

was sworn, and testified as follows:

DIRECT EXAMINATION


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.


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




391


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




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.


CROSS-EXAMINATION


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.


398


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.


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.



MJ: All rise.




399




all of our members.



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.


COMMANDER BRENDON X. DOUD, U.S. Naval Reserve, was called as a witness

for the prosecution, was sworn, and testified as follows:

DIRECT EXAMINATION


Q. Commander, for the record, could you please state your full


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.


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.


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----



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.


MJ: The members may depart.



[END OF PAGE]

403


2008.]



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.


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?



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.



MJ: This 39(a) session is called back to order.


the recess are again present before the Court at this time, except for

the members who remain in the deliberation room.


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?


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?


410



Bailiff, please ask the members to rejoin us at this time.

BAILIFF: Yes, sir.


[END OF PAGE]

411


MJ: All rise.



Court is called back to order.



all of our members.

Members, please be seated. All others may be seated at

this time.


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.


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?


MJ: Members, questions for this witness? Negative response



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.


MJ: Please reassemble at 20 minutes to the hour. Court stands

in recess.




TC: All rise.






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.


418



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.


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


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.


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



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----


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.


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.



TC: It's offered for state--not for the truth of the matter but

state of mind of the declarant.


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.


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.


IMC: Briefly, please, Your Honor.

MJ: Very well.

CROSS-EXAMINATION


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.




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.



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?



Q. PS1, do you know the quarterdeck phone number to the MOBILE

BAY?

A. Not now, sir. No, sir.

TC: No further questions.


IMC: Nothing further. Thank you, Your Honor.

MJ: Follow-on questions from our members? Negative response



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.


[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


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.


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.


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



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


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.



TC: Yes, briefly, sir.



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.




RECROSS-EXAMINATION


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.


TC: Nothing--excuse me. Nothing further, sir.

436


panel members.


the courtroom.]


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


MJ: Court stands in recess. The members may depart.


MJ: Carry on. Court's in recess.



TC: All rise.







all of our members.



MJ: Lieutenant Commander Messer, your next witness, please.

TC: Yes, sir. The Government calls Lieutenant Commander

McCarthy to the stand.




[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


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


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?


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


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.




CROSS-EXAMINATION


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.



TC: Just briefly.



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.


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 courtroom.]


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.]


[END OF PAGE]

447


2008.]





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.


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


this evening?

TC: No, sir.


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.


[END OF PAGE]

449


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.


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?



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.


452


MJ: All rise.






the overnight recess are again present before the Court at this time,

to include all of our members.



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).




[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


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.


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.



CROSS-EXAMINATION



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


WIT: Sure.

IMC: No further questions.

MJ: Redirect?

TC: Sir, just real briefly.



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.


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.



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?


IMC: Briefly, if I may, Your Honor.

MJ: Very well.

RECROSS-EXAMINATION


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.




TC: No, sir.

MJ: Follow-on questions from any member? Negative response



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.




LIEUTENANT COMMANDER THOMAS P. MONINGER, U.S. Navy, was called as a


DIRECT EXAMINATION



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


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----



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.


472


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----


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




475



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?



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.


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



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.




TC: No further questions, sir.


panel members.


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.




MJ: Carry on.



MJ: Bailiff, please ask the members to join us.

BAILIFF: Yes, sir.

MJ: All rise.







all of our members.

All others may be seated.



case?

478

TC: Yes, sir. At this time the Government would call Chief

Kimberly Lewis-Wiggan to the stand.




NAVY COUNSELOR CHIEF KIMBERLY LEWIS-WIGGAN, U.S. Navy, was called as a


DIRECT EXAMINATION


Q. Chief, for the record, could you please state your full


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.


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].



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


MJ: Objection from the defense counsel?


TC: I'm returning Prosecution Exhibit 23 to the court reporter.


identification is now admitted into evidence and the words "for

identification" will be stricken by the court reporter, and you may


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?


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



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.



492



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?


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?


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



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.




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.


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




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 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.


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




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.


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].



Q. Chief, do you recognize that document?


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.



511



IMC: No objection.



identification" will be stricken by our court reporter, and you may


TC: I'm publishing it, the exhibit, to the members now, sir.

MJ: Very well.


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.


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].



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.


IMC: No objection.




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


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----


522


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.


13 for identification. I'm showing Prosecution Exhibit 13 for ID to

the Defense [showing PE 13 for ID to Defense].




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.


IMC: No objection, sir.





TC: Thank you, sir. I'm publishing it now.


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.


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].



Q. Chief, do you recognize that e-mail or do you recognize

that?


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.


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: I've retrieved Exhibit 14 from the witness. I am now

publishing it to the members.

MJ: Very well.


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].


the witness at this time [handing PE 15 for ID to the witness].




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 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.


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?


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.







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.


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].



Q. Do you recognize that, Chief?


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


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





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----


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. 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



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.


courtroom.]


543


2008.]





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.


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.


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?


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?


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


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?

553

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.

554

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.

555

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.


557


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 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.


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


publish the exhibits at an appropriate time.

Other matters we need to address outside the members'

presence?

TC: No, sir.


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.


559


MJ: All rise.







all of our members.



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.


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?



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.


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.


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.



CROSS-EXAMINATION




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.






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.


IMC: Briefly, Your Honor.

RECROSS-EXAMINATION


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.





panel members.


the courtroom.]


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.


MJ: Members may depart.



[END OF PAGE]

585


2008.]




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.


MJ: Very well. Bailiff, if you would please ask the members to

rejoin the court. This 39(a) session is concluded.

BAILIFF: Yes, sir.


[END OF PAGE]

587


TC: All rise.







all of our members.



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.




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.


588


2008.]


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.





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?


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.


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?


MJ: Have you discussed this matter with any other attorneys who

might be able to provide you legal advice concerning his relief?


MJ: Did you have an opportunity yesterday to make such

consultations if you desired to do so?


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?


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?


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?


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?


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.

598

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


TC: No, sir.




0900 hours. Carry on, please.



MJ: The court is called back to order.


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.


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?


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?


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.



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.


before we take a brief recess to ensure Commander Penland has a Manual

for Courts-Martial?


MJ: Commander Penland, anything else that we need to discuss on

the record before we take that recess?

ACC: No, sir.


quarter to the hour. Carry on, please.






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?


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.






Captain Callahan.

629

Lieutenant Commander Penland, have you reconsidered your

decision to relieve Captain Callahan?


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.



MJ: Very well. Court's in recess. Please reassemble at 1030

hours. Carry on, please.


[END OF PAGE]

631


MJ: Bailiff, please ask the members to join our court.

TC: All rise.






the overnight recess are again present before the Court at this time,




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



632

BRIAN DUFFY, civilian, was recalled as a witness for the prosecution,

was reminded of his oath, and testified as follows:


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


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




635

MJ: There being no objection, Prosecution Exhibits 24 and 25

for identification are now admitted into evidence. The words "for


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.


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.


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.


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.


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.


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].



Q. Do you recognize that document, Mr. Duffy?


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.






646





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: By all means.

IMC: Thank you.

CROSS-EXAMINATION


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.

649

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.



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.




panel members.

[The witness was reminded of his previous warning, temporarily excused

and withdrew from the courtroom.]


case?

650

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.


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:


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


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. This was forwarded to me.

651

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.









652


TC: Thank you, sir.

I'd like to--I'm publishing Exhibit 21 to the members now.

MJ: Very well.


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 is received into evidence. The words "for



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?

654

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?



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."


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: Very well.

656

CROSS-EXAMINATION


Q. Good morning, Chief.


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.


657


panel members.

[The witness was reminded of her previous warning, temporarily

excused, and withdrew from the courtroom.]


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?


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.


MJ: Members, please reassemble at 1130 hours.



[END OF PAGE]

659


2008.]





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?


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?


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?


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.


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?


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.]


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 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.


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.

671

Are the Court's rulings clear as to the Article 133

offenses and the Defense's 917 motions pertaining thereto?

TC: Yes, sir.


MJ: Very well. Are there other matters we need to address

outside the members' presence on the record at this time?

TC: No, sir.



Bailiff, please ask the members to join our court.

BAILIFF: Yes, sir.


[END OF PAGE]

672


BAILIFF: All rise.






the recess are again present before the Court at this time, to also

include all of our members.

Please be seated all others.


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?


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.


LIEUTENANT JUNIOR GRADE MARK P. WIGGAN, U.S. Navy, was called as a


DIRECT EXAMINATION


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.



Q. Good morning, Lieutenant Wiggan.


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.


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.


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


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.


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].


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.


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.


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


A. I think so.

Q. And what did you tell him?



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


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.


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.


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?


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


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


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.


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?


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?


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?


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


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.


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?


Q. Why would you wife have kept a copy of this photo?



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?


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?


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?


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


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.




MJ: Court stands in recess. Carry on.



MJ: Bailiff, please ask the members to rejoin us.

BAILIFF: All rise.









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.


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.


MJ: Redirect?


MJ: Very well.

IMC: Thank you.



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?


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.



TC: Just real quickly.

RECROSS-EXAMINATION


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.


IMC: Briefly, sir.

[END OF PAGE]

737



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.


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



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


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: 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



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.



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.



RECROSS-EXAMINATION


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.







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.


MJ: Court stands in lunch recess. The members may depart.


MJ: Carry on. Court stands in lunch recess.



MJ: Bailiff, please ask the members to join the court.

BAILIFF: All rise.






744

the lunch recess are again present before the Court at this time, to




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.


COMMANDER LARRY D. MILNER, U.S. Navy, was called as a witness for the

defense, was sworn, and testified as follows:

DIRECT EXAMINATION


Q. For the record, Commander, can you please state your full


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.


745



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.




TC: Yes, sir.

CROSS-EXAMINATION


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.


MJ: Captain Callahan, redirect?

IMC: May I have a moment, Your Honor?

MJ: Certainly.

756



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.




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.


Nothing further, Your Honor.



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



CAPTAIN MICHAEL H. JOHNSON, U.S. Navy, was called as a witness for the

defense, was sworn, and testified as follows:

DIRECT EXAMINATION


Q. Captain, for the record, could you please state your full


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.





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.


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.



[END OF PAGE]

761

CROSS-EXAMINATION


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


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.


WIT: Yes, sir.

MJ: Redirect?



panel members.


the courtroom.]


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.


courtroom.]

MJ: Carry on, please. Court is in recess.


764



BAILIFF: All rise.







all of our members.



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


DIRECT EXAMINATION



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.


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.


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.


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.


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


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.



IMC: Yes, sir.

MJ: Very well.

774



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.






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?


my standard instructions, you may depart on a recess. Please

reassemble at quarter to the hour.

BAILIFF: All rise.


775

MJ: The members may depart on a recess.


MJ: Carry on, please.



MJ: Bailiff, please ask the members to join us then.

BAILIFF: All rise.







all of our members.



MJ: Captain Callahan, call your next witness, please.

IMC: Sir, the Defense calls Steven Arnold.




[END OF PAGE]

776

STEVEN H. ARNOLD, civilian, was called as a witness for the defense,

was sworn, and testified as follows:

DIRECT EXAMINATION


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.





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.




781

CROSS-EXAMINATION


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.



IMC: Briefly, if I may, sir.

[END OF PAGE]

785



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.





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.



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?



TC: Just briefly, sir.

RECROSS-EXAMINATION


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.



788

MJ: Additional questions from our members? Negative response

from the members.

[The witness was permanently excused and withdrew from the courtroom.]


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.


DIRECT EXAMINATION


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.


CROSS-EXAMINATION


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.





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.



TC: No, sir.

791


panel members.

[The witness was reminded of his warning and temporarily excused

telephonically.]


case?

IMC: Sir, if we may have about a 15-minute recess to discuss

whether we'll present any further evidence.


please cover your notes. You may depart the courtroom on a recess.

Please reassemble at 1630 hours.

BAILIFF: All rise.


MJ: The members may depart on recess.


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.


[END OF PAGE]

792


2008.]



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?


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?


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?


795




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.


[END OF PAGE]

796



BAILIFF: All rise.







all of our members.



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.


[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


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----


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.


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



IMC: May I have a moment, Your Honor?

MJ: Certainly.

CROSS-EXAMINATION




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.




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.



803



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.


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


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.



IMC: Yes, sir.

CROSS-EXAMINATION


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.



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.




809


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.



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.


RECROSS-EXAMINATION


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.


MJ: Lieutenant Commander Messer, anything further for the

witness?

TC: No, sir.





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


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


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.


[END OF PAGE]

818

CROSS-EXAMINATION


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.



MJ: Lieutenant Commander Messer, anything further for the

witness?

TC: Just briefly.

[END OF PAGE]

820



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.


IMC: Can I have a second, Your Honor?

MJ: You may.

[Defense counsel and the accused conferred.]

RECROSS-EXAMINATION


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: 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.






panel members.



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?


please cover your notes. You may depart from the courtroom in a

recess. Please reassemble at 1800 hours.

BAILIFF: All rise.


MJ: Court stands in recess. The members may depart the

courtroom.


MJ: Carry on. Court stands in recess.



MJ: Bailiff, please ask the members to rejoin the court.

BAILIFF: All rise.









823

MJ: Captain Callahan, does the Defense have any evidence in

surrebuttal?


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


MJ: The members may depart on a dinner recess. Counsel, please

stand by.



[END OF PAGE]

825


2008.]





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.


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?


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 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.


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.


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.


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?


TC: Stand by, sir. Sir, I'm satisfied with that.

MJ: Captain Callahan, also satisfied with the drafting of the

mistake of fact instruction?


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: 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.


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?


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?


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 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


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.


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.


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?


TC: Yes, sir.

MJ: Very well. Aside from our earlier discussions, does either

side desire additional instructions on findings or specific tailoring?


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



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.


[END OF PAGE]

852



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.






the dinner recess are again present before the Court at this time, to




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.

870

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.


courtroom.]

MJ: Court stands in recess. Carry on, please.




BAILIFF: All rise.







all of our members.



MJ: Captain Callahan, your argument on the merits of this case,

please.

881


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

886

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.


please cover your notes and you may depart on a brief recess.

BAILIFF: All rise.

905





[END OF PAGE]

906


2008.]





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.


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.



Bailiff, if you would please ask the members to rejoin the

court.

BAILIFF: Yes, sir.


[END OF PAGE]

908


BAILIFF: All rise.







all of our members.



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




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




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


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.


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.


MJ: Thank you, members. Good evening. Safe travels home.

Court stands in recess.


MJ: Good evening. Safe travels home.


[END OF PAGE]

934


MJ: All rise.


MJ: Good morning, members. Please take your seats when you

arrive at them.




the overnight recess are again present before the Court this morning,


All please be seated.


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.


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.




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.



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.





937


2008.]






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


MJ: Very well. Court stands in recess. Please reassemble

quarter to the hour. Carry on.





the recess are again present before the Court as this time, except for


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?


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: 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.



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?



MJ: Very well. Bailiff, if you would ask the members to join

the court.

This 39(a) session is concluded.


[END OF PAGE]

943


BAILIFF: All rise.







all of our members.



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.


courtroom.]

MJ: Court is closed. Carry on, please.



MJ: Counsel, I am told the members have reached findings. Are

we ready for them to return?

TC: Yes, sir.

945


MJ: Bailiff, please ask the members to join the court.

BAILIFF: All rise.






closure for deliberations are again present before the Court at this

time, to include all of our members.



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: 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: 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.


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.


courtroom.]


[END OF PAGE]

949


2008.]





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?


951


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.


MJ: Very well. This court stands in lunch recess. Carry on.



MJ: This 39(a) hearing is called to order.


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.


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?


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.


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.


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.


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?


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?


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.


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?


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.


MJ: Very well. And I believe we discussed sentencing

witnesses. The Government anticipates one witness, correct?


MJ: And at this point one witness for the Defense?


MJ: Very good. Other matters we need to address on the record

before the members join us?

TC: No, sir.

IMC: No, sir.


Bailiff, please ask the members to rejoin our court.

BAILIFF: Aye, sir.


[END OF PAGE]

963


BAILIFF: All rise.






the lunch recess are again present before the Court at this time, to




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



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


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.


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.


IMC: Nothing. Thank you, Your Honor.


panel members.

[The witness was excused and withdrew from the courtroom.]

MJ: Further evidence from the prosecution on sentencing

matters?


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.


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.


courtroom.]


[END OF PAGE]

969


2008.]



MJ: The 39(a) session is now called to order.


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.


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.


MJ: Anything else we need to address at this 39(a) session?


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.



[END OF PAGE]

973


BAILIFF: All rise.







all of our members.



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



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.


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.


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.


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.


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.


Thank you, Your Honor. I have no further questions.

MJ: Lieutenant Commander Messer, questions for the witness?

TC: Just briefly, sir.

979

CROSS-EXAMINATION


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.




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.


my standard instructions, you may depart on recess. Please reassemble

at 10 minutes to the hour.

BAILIFF: All rise.


MJ: Members may depart. Court stands in recess. Carry on.



[END OF PAGE]

982


2008.]




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?



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?






985


BAILIFF: All rise.







all of our members.



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?


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.


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.


courtroom.]

MJ: Counsel, if we could reassemble in about 10 minutes. Carry

on, please.


[END OF PAGE]

993


2008.]




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.


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?


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.


MJ: Any other matters we need to address on the record before

the members join us?

TC: No, sir.



Bailiff, please ask the members to join our court.


[END OF PAGE]

995


BAILIFF: All rise.







all of our members.



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.


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.


courtroom.]

1006

MJ: Court is closed. Carry on.




BAILIFF: All rise.




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,




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: 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.


MJ: Bailiff, if you would retrieve the sentencing worksheet

along with the other exhibits and return them to our court reporter.


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

1009

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.


1010

MJ: Members may depart.

[The excused members withdrew from the courtroom.]




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?


IMC: Correct, Your Honor.

MJ: Very well. Captain Callahan, have you had an opportunity

to discuss appellate and post-trial rights with your client?


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.]

1011

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.


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

Court Martial of LCDR Syneeda Penland (partial draft released by Penland to media)

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Transcript of Court Martial of LCDR Syneeda Penland (partial draft released by Penland to media)