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 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 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]

1 MJ: Good morning. This general court-martial is called to order in the case of the United States v. Lieutenant Commander Penland, . 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:

2 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.

3 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?

4 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.

5 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.

6 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

7 extenuating information that states that there could have been some evidence of wrongful command influence or either obstruction of justice with this proceeding, sir. MJ: Well, let's get through the counsel rights, and there's certainly a number of issues that you have raised that can be addressed at a later and more appropriate time in our proceeding. Again, I want to focus on your rights to defense counsel because I want to ensure that you have a defense attorney that you're comfortable with and you're willing to go forward with because this case will go to trial at some point and hopefully you will have a Defense team that you're satisfied with at that time. Okay. Let me talk about your civilian defense counsel rights and then I'll ask you about your choices of counsel. You also can be represented at this general court-martial by a civilian defense counsel or counsels of your own choice who would represent you without any expense to the United States. Do you understand that? ACC: Yes, sir. MJ: And your civilian defense counsel could represent you alone or along with any military defense counsel that you have. Do you understand that? ACC: Yes, sir. MJ: Okay. Now let's talk about your rights to defense counsel.

Do you have any questions about those rights to counsel?

8 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----

9 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

10 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

11 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?

12 ACC: I am stating that I have not had an opportunity to consult with anyone concerning this because I requested deconfliction [sic] of the e-mail and also the direction and also Lieutenant Head's appointment letter. TC: Sir, may I be heard? MJ: Certainly. TC: The accused has just stated on the record that she wishes to be represented by Mr. Blevins. Mr. Blevins entered into a motion for docketing with the court months ago. So for the accused to now argue that she had no one to consult with is absolutely ludicrous. ACC: Sir, I have not been able to contact Mr. Blevins either. MJ: Well, it doesn't seem like anyone's been very successful in contacting Mr. Blevins. Let me go back then to the rights to counsel. With regard to any defense counsel you ultimately retain, those counsel will have to be prepared to go to trial in accordance with the schedule that this Court sets. Do you understand that? ACC: Yes, sir. And will I be allowed to see the schedule? MJ: I'm going to set the schedule---- ACC: Yes, sir. MJ: ----momentarily. Again with that caveat in mind, I will give you adequate time, in my mind at least, to procure at least one defense counsel that you're satisfied with. ACC: Yes, sir.

13 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.

14 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

15 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

16 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

17 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."

18 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.

19 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.

20 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

21 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

22 absentia rule, specifically Rule for Courts-Martial 804. That rule provides that once a service member has been brought to a court- martial and arraigned, if that individual is voluntarily absent without authority from the sessions of court that are set, then the court can continue in that person's absence and they will have waived his or her right to be present. Do you understand that? ACC: Yes, sir. MJ: Okay. If you're UA on the 8th of February, 0900, we can proceed without you being here in court. You will have waived your right to be present and your defense counsel will represent you as best he or she can. I don't expect, suggest or imply you're going to be UA from that date. It's important for you to be here to participate. ACC: Yes, sir. MJ: You have obviously come prepared to participate in this trial and that's a good thing. But I do want you to understand the importance of being here on that date. And if for any reason you cannot be here, to communicate that to your defense counsel and the Court as soon as possible so we can address that issue. Understood? ACC: Yes, sir. However, I was directed by my commanding officer to be at the deposition this afternoon at 1300. Are we going forward with that or what? Because I don't want to violate his order.

23 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.]

24 [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.

25 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.]

26 MJ: This morning we're going to discuss a number of important matters, Commander. If you have any questions, you're confused in any way, or just want to talk to your defense attorney, let me know and I'll be glad to give you time to do so. Understood? ACC: Yes, sir. MJ: I'd like to revisit with you your rights to defense counsel. I know we talked about this at our last session of court, but we have a new counsel here so I'd like to get your opinion as to his representation of you. I remind you you have the right to be represented by your detailed military defense, and that was Lieutenant Head and I guess there were several other before him who have also been relieved. You also have the right to be represented by your detailed--I'm sorry--your individual military counsel, Captain Callahan. If you are, in fact, represented by a military counsel of your own choice, then normally your detailed defense counsel would be excused. Military defense counsel represent you free of charge. Do you understand that right? ACC: Yes, sir. MJ: You also have the right to be represented at this general court-martial by a civilian defense counsel at no expense to the United States, and a civilian defense counsel would represent you either alone or along with your military defense counsel. Do you understand that right?

27 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.

28 MJ: Very good. And the Marines have landed. For the record again, I was detailed to this court-martial by the Circuit Military Judge of the Western Judicial Circuit. I am properly certified and sworn as a military judge in accordance with Articles 26(b) and (c) and 42(a) of the Uniform Code of Military Justice. I will not serve as a witness for either side in this case, nor am I presently aware of any matters which I believe may serve as a basis for challenge for cause against me. Nonetheless, I invite counsel for both sides at this time to voir dire or challenge the military judge as you desire. Lieutenant Commander Messer? TC: I have no voir dire, sir. MJ: Captain Callahan? IMC: None from Defense, Your Honor. MJ: Very well. Lieutenant Commander Penland, we also talked about the type of court-martial that can hear your case and I'd just like to remind you that you have the right to be tried by a court- martial composed of members. If you are found guilty of any offense by the members, then the members would determine the appropriate sentence. Do you understand that right? ACC: Yes, sir.

MJ: You're also advised that at a proper time you may request to be tried by a military judge alone. If that request is approved,

29 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.

30 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

31 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.

32 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?

33 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]

34 MJ: Accused and Counsel, please rise. [The accused and her counsel did as directed.] MJ: Lieutenant Commander Penland, I now ask you how do you plead to the charged offenses; but before receiving your pleas, I must advise you that any motion to dismiss any charged offense or to grant any other form of relief can be made at this time. Captain Callahan, does the Defense have any motions? IMC: Sir, at this time the Defense would respectfully request to reserve motions and pleas till the motions hearing date, with the exception that the Defense still would request that the judge require prosecution to serve 10 days' notice on the Defense before the issuance of any subpoena, as discussed in the 802, Your Honor. MJ: Very well. Please be seated. [The accused and her counsel did as directed.] MJ: You may reserve entry of forum and pleas till the date that I've selected for that on the 10th of April of this year. Let us get into the issue concerning the subpoena. Your oral motion concerning that, Captain Callahan, if you would please articulate for the record the Defense position. IMC: Yes, sir. Sir, the Defense position is there's been an unusual number of subpoenas in this case. I've been served with approximately 12-some-odd subpoenas at this point dealing with a lot of potentially personal and private information of Lieutenant

Commander Penland. Sir, while there's nothing in the law that would specifically require the trial counsel to serve 10 days' notice for

35 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.

36 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.

37 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

38 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?

39 TC: Nothing from the Government, sir. IMC: No, Your Honor. MJ: Very well. This court stands in recess until our next session on the 10th of April. [The Article 39(a) session recessed at 0953 hours, 22 February 2008.] [END OF PAGE]

40 [The Article 39(a) session was called to order at 0922 hours, 10 April 2008.] MJ: Good morning. This general court-martial, convened at Naval Base San Diego, is called to order in the case of the United States v. Lieutenant Commander Penland, United States Navy. Let the record reflect that all parties present at the last session of court are again present before the Court this morning. Let me verify that Lieutenant Commander Penland is present before the Court, attired in the appropriate uniform with all the awards and decorations she's entitled to wear. IMC: She is, Your Honor. MJ: Thank you, Counselor. Good morning, Commander. ACC: Good morning, sir. MJ: The purpose for our hearing this morning is to address five motions that were filed with the Court by the Defense, and the Government has also filed written responses to those motions. Attached to the motions and the responses were a number of exhibits that the Court will also consider in deciding the issues raised by the motions. With regard to our appellate record, the Court has appended to the appellate record Appellate Exhibit VII which was the Defense's motion to suppress certain statements purportedly made by Lieutenant

Commander Penland to Captain Sturges, I believe. The Government reply in opposition is Appellate Exhibit XII.

41 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

42 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.

43 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.

44 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.

45 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

46 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.

47 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.

48 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

49 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

50 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.

51 Q. Were you read your rights at any time at all while you were in there? A. No, I was not. If I can add something further? Q. Certainly, ma'am. A. After the discussion with Captain Harr, when I went back to the supply office, Commander Masi stated to me that the phone call had come in to Commander Ward and it was actually a phone call from the executive officer of the MOBILE BAY, not the commanding officer, and it was two days prior and it was on the 21st, I believe. IMC: Sir, that's all the testimony I have for now on the motion to suppress. With the Court's permission, I'll move on to the motion to dismiss for unlawful command influence and the accuser motion. MJ: Very well. IMC: Thank you, sir. Q. Lieutenant Commander Penland, when did you report in to Naval Coastal Warfare Group ONE? A. January of 2006. Q. And what was your billet there? A. I was the supply officer. Q. What are the general responsibilities of the supply officer on board Naval Coastal Warfare Group ONE? A. At that time I was the agency program coordinator for the government purchase card. I also managed all the procurement requests, all the budget/financial execution contacts. I was also the

52 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----

53 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."

54 TC: Sir, I'm going to object under relevance on this. I'm not sure how this goes to UCI. MJ: Captain Callahan? IMC: It does, sir, because it's going--starting at the very beginning, Lieutenant Commander Penland checks on board, Lieutenant Commander Penland is noticing significant and severe contracting violations which she is bringing up to the attention of the command, to include the chief staff officer, Commander Ward, who eventually ordered the Article 32. Because they failed to take action on these and because of the action they took against her, she filed both IG complaints, requests for audits, equal opportunity complaints. And it goes to show that the command, especially Commander Ward and Captain Sturges, have a personal vested interest in the outcome of this case because of the allegations of contracting violations, equal opportunity complaints, audits and such requested and filed by my client against them. MJ: You may proceed. Overruled as to relevance. IMC: Thank you, Your Honor. Q. Ma'am, did Commander Ward take any action on those issues you raised to him and had presented to? A. Yes. Commander Ward at that time, he was extremely proactive. However, I felt that Lieutenant Commander Marshall was not due to her personal relationship with one of the civilian contractors,

Ike Owens.

55 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

56 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

57 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

58 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.

59 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

60 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.

61 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

62 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.

63 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

64 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

65 mention of phone records. But that particular morning that first set of charge sheets I was presented with all of these copies of phone records that Commander Marshall herself had printed out and ironically they were dated the 20th, the day that that conversation took place. So when I refused NJP, on the spot I exercised my right, Commander Ward excused myself and Commander Masi from his office. Then we went into the lounge. Commander Masi asked me "Did your attorney suggest for you to elect court-martial," and I said, "Sir, I cannot discuss that with you." So when we walked back in---- TC: Sir, I'm sorry to interrupt. I'm going to object to relevancy here. I still don't see how this has anything to do with the unlawful command influence motion. We've covered the allegations that the commander has made. Now we're into her refusing NJP. I don't see a tie. MJ: Captain Callahan? IMC: Sir, specifically we're getting into the equal opportunity complaint and the IG complaint here, the basis for them, who the complaints were made against, which ties into the accuser motion. MJ: Well, whether it's the basis for the complaints or not, I think the significance is that whether they were made or not made and then what impact that might have on the command structure. So if we could ask a little more focused question to get there, please. IMC: Understood, sir.

66 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.

67 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.

68 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.

69 Q. What other senior members of the chain of command did you file a report and disposition of offenses on? A. Commander Doud. Q. And who is Commander Doud? A. Commander Doud, he was the preliminary investigator who conducted the investigation into the allegations made by NCC Wiggan. Q. Did you also file allegations against Chief Warrant Officer Newbacker? A. Yes, I did. Q. And Chief Barton? A. Yes, I did. There were several violations committed by-- reported to have been committed by Senior Chief Barton. One of them was the fact that he failed in his capacity as the CMEO. Q. And what does the CMEO---- TC: Sir, I'm going to object to under relevance here. The UCI motion states that it was Commander Ward and Captain Sturges who used unlawful command influence. I'm not sure why we're getting into all the charges of all these other people. MJ: Captain Callahan? IMC: Again, sir, this just goes into the sheer number of people at the command that have been involved in this, the allegations made against a number of people at the command and it does go to the appearance of unlawful command influence. The courts have stated and held that they are interested in stopping even what appears to be unlawful command influence even without any direct evidence of

70 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.

71 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

72 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.

73

IMC: I think, ma'am, I don't have any further questions for you at this time. Commander Messer may have some questions for you. Thank you, Your Honor. MJ: Commander Messer. TC: Yes, sir. One moment. MJ: Certainly. CROSS-EXAMINATION Questions by the trial counsel: Q. Commander, let's start with the UCI since that's fresh in our memory here. Is there anyone in the senior leadership of, I guess, then Naval Coastal Warfare Group ONE, now MESG ONE, that you haven't filed a complaint against? A. Yes. Q. Who? A. That I have not? Q. Yeah, senior leadership. A. I don't quite understand your question. I mean, are you asking if I filed a complaint against everyone at the command or---- Q. Yes. A. No, I have not, Lieutenant Commander Messer. Q. Who haven't you filed a complaint against? A. Do you want to know who specifically, who I have?

Q. No. I'm--the question is very clear. A. I'm not sure who's on staff there now.

74

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.

75

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.

76

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

77 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

78 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?

79 A. I haven't received a final report yet, so I don't know. Q. And you gave specific names, but do you know how many total people you implicated in your equal opportunity complaint? A. [Reviewing notes.] To have been involved, committed or witnessed, quite a few. Q. I'm sorry. Are those notes you're referring to in front of you there? A. Yes. TC: Sir, I would ask that the witness be instructed that she not refer to her notes in the course of the testimony. MJ: Captain Callahan? IMC: Sir, I don't think it's inappropriate to have her referring to her notes in the course of a--he's asking a lot of detailed questions, how many people, what people, when, where, about a lot of complaints, allegations that have taken place over, you know, a year at this point. MJ: Have these materials been provided to the Government? IMC: I believe some of those are the Government materials that have been, sir, that were filed along with the motion. I'm not sure if all of what she has up there is included with the motions. MJ: Well, if she's relying on it for her testimony, there would seem to be some discovery responsibilities in that regard. But the Court's more concerned, Lieutenant Commander

Penland, with what you remember; and if you can't remember without relying on the documents, then that can be your answer. If there is

80 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?

81 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

82 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?

83 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.

84

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.

85

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?

86 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?

87 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.

88

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?

89 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

90 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

91 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

92 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?

93 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.

94

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.

95

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----

96

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?

97 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."

98

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.

99 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.

100

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."

101

Q. Okay. And then what? What was said by you or him? A. I just said "By all means." Q. Okay. And then what was said? Did he respond? A. That was pretty much it. I mean, it was--he stated this is what's going on and I responded and that was pretty much it. MJ: Okay. That's the questions I have. Captain Callahan, follow up? IMC: Briefly, sir. REDIRECT EXAMINATION Questions by the individual military counsel: Q. Ma'am, just to clarify, the complaint--the allegation of violations of the UCMJ that you made on Lieutenant Commander Marshall, those were forwarded up to Captain Sturges, not to an admiral, correct? A. Yes. IMC: Thank you, ma'am. Nothing further, sir. MJ: Commander Messer? TC: Nothing further, sir. MJ: Commander, thank you for your testimony. ACC: [Resuming seat at counsel table.] MJ: I think this would be an appropriate time to take a brief recess. If we could reassemble at 1100. And if we have additional witnesses, have them standing by at that time. Court stands in

102 recess. [The session recessed at 1054 hours, 10 April 2008.] [The session was called to order at 1107 hours, 10 April 2008.] MJ: Back on the record. TC: Yes, sir. IMC: Yes, Your Honor. MJ: Captain Callahan, any other additional evidence to present on the motions? IMC: Sir, I'd just request that the Court consider the documentary evidence attached to all the motions. MJ: Very well. IMC: And that is it, Your Honor. MJ: Any objection from trial counsel? TC: No objections, sir. MJ: Very well. Evidence from the prosecution on the motions or your responses? TC: Yes, sir. At this time the Government would call Captain Sturges. MJ: Very well. TC: He's a telephonic witness, sir. MJ: Any objection from the Defense to calling Captain Sturges telephonically? IMC: No, Your Honor.

MJ: Very well.

103

CAPTAIN JOHN B. STURGES, III, U.S. Navy (Retired), was telephonically called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. I'd ask that you not have any notes or materials in front of you. A. Okay. Q. Sir, for the record, could you please state your full name, spelling your last. A. John Bellow [ph] Sturges, III, S-T-U-R-G-E-S. Q. And, sir, are you currently in the Navy? A. No, I'm not. Q. Are you retired? A. Yes, I am. Q. When did you retire from the Naval Service? A. Effective 1 December 2007. Q. And where are you currently employed? A. At Booz Allen Hamilton in San Diego. Q. And, sir, briefly before we get into the substance of my questioning, how long did you serve in the Navy? A. A little over 30 years.

Q. And during that time, did you come to know the accused in this case, Lieutenant Commander Penland?

104 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.

105

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

106 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.

107

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

108 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

109 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

110 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.

111

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

112 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.

113

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

114 like it would be the right thing to do. TC: All right, sir. I don't have any further questions for you. I'm sure defense counsel does, so I'd just ask you to remain on the line. WIT: Okay. MJ: Captain Callahan. IMC: Thank you, Your Honor. CROSS-EXAMINATION Questions by the individual military counsel: Q. Good morning, sir. Can you hear me? A. Yes, I can. Good morning. Q. Sir, it's Captain Callahan, Marine Corps type. I am representing Lieutenant Commander Penland as her defense counsel. A. Okay. Q. I have just a few questions for you, sir. First of all, are you aware of charges that Lieutenant Commander Penland made against other members of Naval Coastal Warfare Group ONE and forwarded to you for your action on those charges? A. Yes. Q. Did those allegations include charges against your chief staff officer, Commander Ward? A. Yes. Q. And did they also include allegations against Lieutenant

Commander Marshall? A. Yes.

115

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.

116

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

117 Wiggan? Could she maybe have said she didn't call and harass her? Could she maybe have said she didn't call her last night? Could she have said she didn't call her during the time the military protective order was issued? A. No. Because this was actually after the military protective order had expired. So, no, she very clearly stated, you know, as I recall to the best of my recollection that she did not call Petty Officer Wiggan. Q. And was it the commanding officer or the executive officer of the MOBILE BAY that called over? A. The CO called me. My chief staff officer may have been called by the XO. Q. And, sir, isn't it true that you issued a military protective order previously instructing Lieutenant Commander Penland not to have contact with this woman partially because of issues of allegations that she was having an affair with the petty officer's husband? A. That's correct. IMC: Thank you, sir. No further questions. ACC: Okay. MJ: Lieutenant Commander Messer? TC: Just briefly. [END OF PAGE]

118 REDIRECT EXAMINATION Questions by the trial counsel: Q. Sir, Lieutenant Commander Messer again. In your time in command of Navy Coastal Warfare Group ONE, did you have any other sailors file equal opportunity complaints? A. Nobody filed a complaint. We did have one chief petty officer had a--had a--what I would term an insensitive racial remark posed to him by another chief petty officer and we took appropriate action in that case, but that was the only one that I recall happening while I was at the command. Q. And this is a command of 3,000 people? A. That's correct. Q. Did you have any of your subordinates file IG complaints? A. Yeah, there were a couple. Well, not IG complaints but Congressionals. Q. And were there any other complaints of sexual harassment other than those raised by Commander Penland? A. No. And when I say there's 3,000 people, it's not like an aircraft carrier. They're--you know, there's multiple subordinate commands inside Naval Coastal Warfare; so, you know, just to kind of clarify that, you know, I don't reach out and touch 3,000 people every day as a commander. You know, I kind of have a staff and then there are other subordinate commanders, commanding officers.

119 Q. But those complaints would come through your office, correct, sir? A. Oh, yes. TC: Thank you, sir. I have no further questions. WIT: Okay. MJ: Captain Callahan, anything further for this witness? IMC: Briefly, please, sir. MJ: Very well. RECROSS-EXAMINATION Questions by the individual military counsel: Q. Good morning, sir. It's Captain Callahan again. A. Good morning. Q. Sir, were you aware of Lieutenant Commander Penland's previous accomplishments in her career before reporting in to your command? TC: Sir, this is outside the scope of redirect. IMC: Sir, it goes directly to--he's raising and insinuating that Lieutenant Commander Penland does nothing but run around and make complaints against everybody, and I'm trying to point out that prior to reporting into this command Lieutenant Commander Penland had been a very successful officer and there's no history of complaints being raised before this. MJ: I'm not sure the witness would have a basis for that, but you can ask him in terms of his opinion about what he believed her prior performance was.

120 IMC: Thank you, sir. Q. Sir, did you have any knowledge of Lieutenant Commander Penland's prior service before reporting in to you? A. I had heard she was a very good--very good officer and a very good supply officer. That was kind of the limited--you know, you don't see officer fitness reports. And, as I recall, she came from a ship on the East Coast, so I wouldn't have really known her personal reputation very much. But again from what I generally collected I thought that she came as a good officer. IMC: Thank you, sir. Nothing further, Your Honor. Thank you. MJ: Lieutenant Commander Messer? TC: Nothing further, sir. [The witness was duly warned and temporarily excused telephonically.] MJ: Further evidence from the prosecution in response to the Defense motions? TC: Yes, sir. At this time the Government would request a brief recess in place so I may find my next witness. It will be Lieutenant Commander Marshall. MJ: Very well. TC: All rise. [All persons did as directed.] MJ: Carry on, please.

[The session recessed at 1134 hours, 10 April 2008.]

121 [The session was called to order at 1135 hours, 10 April 2008.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the court at this time. LIEUTENANT COMMANDER MEI LING A. MARSHALL, JAG Corps, U.S. Navy, was called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Would you please state your full name, spelling your last for the record. A. My name is Mei Ling Amoy [ph] Marshall. My last name is spelled M-A-R-S-H-A-L-L. Q. And, Commander, please state--or are you currently in the Navy? A. I am. Q. What is your current duty station? A. I am stationed as the staff judge advocate at Maritime Expeditionary Security Group ONE. Q. How long have you been in the Navy? A. I've been in the Navy almost 15 years. I attended four years of Annapolis; it doesn't count. But 15 active duty. Q. How long have you been at Navy Coastal Warfare Group ONE?

A. Almost three years.

122 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.

123 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.

124 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.

125 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

126 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.

127 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

128 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.

129 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

130 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

131 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

132 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?

133 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.

134 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.

135 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--

136 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

137 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.

138 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

139 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.

140 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

141 military judge on the 21st of January that that was the person by whom she wished to be represented. Q. But at no time throughout this process was your office ever contacted and the request made to you that the accused wanted a speedy trial? A. No. Q. Just one moment. [Reviewing notes.] Now, you have no knowledge of the meeting on 21 February 2007 with Captain Sturges and the accused when they discussed her phone calls? A. I have no personal knowledge. I wasn't a witness to that. I have heard what came out of it, the stories are consistent, but I don't have any personal knowledge. TC: Thank you. I have no further questions. MJ: Captain Callahan. IMC: Thank you, sir. CROSS-EXAMINATION Questions by the individual military counsel: Q. Good afternoon, ma'am. A. Good afternoon, Captain. Q. Ma'am, if I can turn your attention back to the motion for docketing which was signed the day after charges were preferred, correct?

A. No. The motion for docketing----

142 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.

143 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

144 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.

145 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.

146 IMC: Thank you, ma'am. No further questions, sir. MJ: Redirect? TC: No, sir, nothing further. [The witness was duly warned, temporarily excused, and withdrew from the courtroom.] MJ: Further evidence from the prosecution on these motions? TC: Sir, the Government has one more issue. I guess it can be considered evidence. There was an 802 conference held on the 7th of November where the motion for docketing was discussed. Present at that 802 conference were myself and Captain Allred. Mr. Blevins was available or was present telephonically. I would like the Court to consider that 802 as evidence as to the motion for docketing motion; however, I recognize the military judge is not the same military judge who was present at the 802. I would ask the Court is there an adequate record of that 802 in the pass-down or in the folder and, if not, the court would--or the Government would request that Captain Allred be called as a witness to recount on the record the substance of that 802. MJ: If I recall, was there not an e-mail generated that summarized the 802? TC: The Government is not aware of such an e-mail. The purpose of the 802 was very brief, just mainly to confirm the motion for docketing. However, given testimony of the accused that her--she--her counsel was no longer retained at that point, I think it's important

147 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

148 as proposed. 39(a) set for 28 January." TC: Sir, the Government's satisfied that you've now read that into the record. We do not require a copy be made as an exhibit. That's now on the record as to what was discussed, and the Government is satisfied. MJ: Well, I still want to make it part of the record; and again, if you want to follow up on that on the other side, then, you know, there may be an appropriate way to do that. IMC: Yes, sir. Sir, actually also I don't know if this is a good time to bring it up, but while we're on the subject of 802's, are there any other 802's that--and I understand there were 802's that I was e-mailed from you, but are there other 802's other than this one in that folder that I'm not aware of? MJ: No. IMC: Thank you, sir. MJ: Okay. So aside from that 802 summary, anything else from the Government? TC: The Government would ask that the enclosures to its five motions be considered. MJ: Very well. Any objection from the Defense? IMC: No objection, Your Honor. MJ: I'll just--I'll note there's some overlap between the two packages, but that's okay.

IMC: There are, Your Honor.

149 MJ: That's all right. Okay. Anything else in terms of evidence for today's motions from either side? TC: No, sir. IMC: No, Your Honor. MJ: Okay. Why don't we take a brief recess, reassemble at 1230 hours and I'll receive argument and an amplification of the arguments you've raised in your motions and your responses. Court stands in recess. Carry on, please. [The session recessed at 1216 hours, 10 April 2008.] [The session was called to order at 1237 hours, 10 April 2008.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the court at this time. Counsel, at this time I'd like to receive further argument, if you'd so desire, amplifying the arguments you've raised in the motions and responses. I think probably the best way to do it is to go through each motion and response and allow each party the opportunity to argue on that particular motion rather than have a single argument on all five motions. Why don't we start with the motion to suppress. Captain Callahan. IMC: Yes, sir. Sir, if I may just briefly, to amplify the arguments made in that one. The test for whether or not somebody is being interrogated isn't whether or not they're specifically asking

150 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

151 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.

152 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

153 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."

154 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.

155 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.

156 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

157 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

158 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.

159 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

160 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

161 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.

162 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

163 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.

164 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.

165 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.

166 MJ: I gather the same question to the Defense would you answer affirmative? IMC: Depending on the testimony of Petty Officer Wiggan, sir. MJ: Captain Callahan, have you had an opportunity to review the tapes that have been provided to you concerning the Article 32? IMC: I have not, sir. As the trial counsel stated, they were delivered to me this morning. He did deliver them to defense counsel prior to me; I did not receive them from him. I believe he threw them out; I think he tried to play them on a regular cassette player and my understanding is they don't, so he assumed that they were broken. MJ: Yeah, you need a special court reporting transcribing machine to do that. IMC: I believe so, sir. They're different from the format we use in the Marine courts. We use FTR and they're on a CD, but I will get with the court reporter and make sure I get the proper equipment to play, sir. MJ: Very well. At this point, with regard to the Article 32 transcript, I'll request that you make that attempt. If you're unable to decipher or discern those tapes or if they're inaudible please re-raise this question. So I'm going to defer on this particular motion. IMC: Understood, Your Honor. MJ: Very well. And let's finally end with the 707 speedy trial issue, and I guess wrapped into that is also the motion for docketing, if you'd like to address those together. Anything further from the

167 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

168 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

169 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

170 that the trial counsel discovered additional charges and brought them to the attention of the command, we're talking many more months where major changes could have been made to the charge sheet, many more months where additional charges could have been added. This isn't just some small matter. It's a very important matter, sir. And the Government doesn't have clean hands in this. It would be one thing if Lieutenant Commander Penland had told her lawyers, no, don't sign it, they signed it anyway and then the Government never found out about it. It's kind of the how can we attribute any wrongdoing on the Government's part to this. This was attorney/client privileged communication. But in this case she did contact the Government; she told her commanding officer of the problem. So whereas the Government may not have an obligation to fix it when they're not aware of it and they certainly don't have an obligation to fix it when they're not aware of it, as soon as she brought this up to her commanding officer the Government is now involved in having an obligation to fix this. The Government did not. And, therefore, I would respectfully request that the Court hold the motion for docketing as not valid in this case and that the time entered into as excludable delay still be counted against the Government. Thank you, Your Honor. MJ: Lieutenant Commander Messer. TC: Sir, I'll respond first to the motion for docketing arguments and then briefly touch on the 707 issue which defense counsel chose not to--not to address.

171 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

172 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.

173 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

174 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

175 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.

176 MJ: Anything further, Lieutenant Commander Messer? TC: Just that the Defense has shown no prejudice to the accused, sir. MJ: Thank you, counsel, for your presentations and arguments on behalf of the Court. Certainly some rather interesting and perhaps novel issues for me to address. I will endeavor to issue written rulings for your benefit before our next scheduled hearing, which is 23 April. If I did not already note, Appellate Exhibit XVI was appended to the record and that was the note summary from Captain Allred's 802 conference of 7 November, copies of which have been provided to both parties. Are there other matters we need to address on the record this afternoon? TC: Nothing from the Government, sir. IMC: No, Your Honor. MJ: Very well. Court stands in recess to 23 April. Carry on, please. [The Article 39(a) session recessed at 1318 hours, 10 April 2008.] [END OF PAGE]

177 [The Article 39(a) session was called to order at 1016 hours, 23 April 2008.] MJ: Good morning. This Article 39(a) hearing is called to order in the case of the United States v. Lieutenant Commander Penland, United States Navy. Let the record reflect that all parties present at the last session of court are again present before the Court this morning. Let me verify that Lieutenant Commander Penland is present before the Court, attired in the appropriate uniform with all the awards and decorations she's entitled to wear. IMC: She is, Your Honor. MJ: Very good. The purpose for our 39(a) hearing this morning is several fold. The first is to receive the Court's ruling on the five Defense motions that were litigated at our last session of court. I will note for the record that the rulings were issued via e-mail. They are in written form and have been appended to the record as Appellate Exhibit XVII and Appellate Exhibit XVIII. The first appellate exhibit I referenced, Appellate Exhibit XVII, covers four of the five Defense motions: Specifically the motion to suppress which was granted in part; the motion to dismiss pursuant to Rule for Courts-Martial 707, that was denied; the motion to dismiss based on unlawful command influence and the unit commander as accuser, that was denied; and the Defense motion for transcript of the Article 32 hearing, that was deferred.

178 With regard to Appellate Exhibit XVIII, the Defense motion was granted in part to address deficiencies in the Article 32 convening process; the Court granted that motion in part to reopen the Article 32 hearing and to provide a supplemental report to the Convening Authority of this case, Commander Navy Region Southwest. Have parties for both sides had an opportunity to review the Court's rulings on these motions? IMC: Yes, Your Honor. TC: Yes, sir. MJ: Very well. Let me just briefly revisit the Article 32 transcript issue. Captain Callahan, have you had an opportunity to review the tapes of the Article 32 that were provided to you? IMC: I have not, sir. Those don't work actually on Depot's, so I was going to go up to Miramar and listen to them. However, from speaking with the trial counsel, Captain [sic] Messer, and with Commander Marshall, my understanding is a significant portion of the testimony was not actually recorded anyway, that there's a defect in the tapes. MJ: That's regrettable. IMC: So---- MJ: Well, all the more reason to reopen the Article 32 and perhaps revisit those witnesses if you feel the need. IMC: Yes, sir.

MJ: Very well. Are there other Defense motions at this time that you would like to pursue?

179 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.

180 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.

181 So I would certainly not object to the Court scheduling it for the week afterward and then just leaving it open if any reason it needs to be bumped further than that to allow the parties to submit an appropriate continuance. MJ: Are both counsel available the week of 19 May? TC: I am, sir. IMC: I am, sir. MJ: Excellent. Well, then let's do this. Let us reschedule this case for trial for that week, the week of 19 May. Hopefully that will give each side an opportunity to prepare and respond accordingly to the Court's ruling as to the Article 32 hearing. If we need to reschedule that based on additional developments, that's obviously an option, but I do want to try and lock in some time in our docket should the case go forward as presently referred. So let's set aside the week of 19 May for trial. And it becomes problematic for me. I will be leaving the bench the following week, so this case would then be passed off to another judge. In looking at the long range docket, unless we procure a reserve judge or a Marine judge, we are looking towards the middle of June for trial. So just for planning purposes, that those appear to be the options that are available to us. Other matters we need to discuss on the record, counsel? IMC: Not from Defense, Your Honor.

MJ: Lieutenant Commander Messer? TC: Nothing from the Government, sir.

182 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]

183 [The Article 39(a) session was called to order at 1007 hours, 14 May 2008.] MJ: Good morning. This 39(a) hearing is called to order in the case of the United States vs. Lieutenant Commander S. L. Penland, United States Navy. Let the record reflect that all parties present at the last session are again present before the Court at this time. I will note that our court reporter for this session is Ms. Dixon, and she has been previously sworn. Let me verify that Lieutenant Commander Penland is present before the Court, attired in the appropriate uniform with all the awards and decorations she's entitled to wear. IMC: She is, Your Honor. MJ: Thank you, Captain. Good morning, Lieutenant Commander. How are you? ACC: Good morning, sir. Just fine. MJ: Good. The purpose for our hearing this morning is several fold. The first is to address a Defense request for continuance. That request and motion has been marked Appellate Exhibit XIX, and the Government's response in opposition to that request has been marked Appellate Exhibit XX. I was also not sure. I had not had a note that we have received forum election, as well as entry of pleas, so I want to cross check that this morning, as well, and address any other preliminary

184 pretrial matters that we need to address. At present, this case is scheduled for trial to commence next Monday, dependent upon the outcome of the Defense continuance request. So without further delay, why don't we address the Defense continuance request. Captain Callahan, do you have any evidence you'd like to offer in support of your request for continuance? IMC: Yes, sir. Sir, I'd like to call Lieutenant Commander Penland to the stand. MJ: Very well. ACC: Sir, could I carry my notebook just for notes, reference notes? MJ: Captain, do you desire your client to take a notebook to the stand in aid of her testimony? IMC: Sir, yes, sir, please. MJ: Very well. TC: Sir, this witness was previously sworn at a prior 39(a). MJ: Thank you, Counselor. [END OF PAGE]

185 LIEUTENANT COMMANDER SYNEEDA L. PENLAND, U.S. Navy, was recalled as a witness for the defense, was reminded of her oath, and testified as follows: DIRECT EXAMINATION Questions by the individual military counsel: Q. Good morning, ma'am. A. Good morning. MJ: And I gather this is for the limited purpose of the motion? IMC: It is, Your Honor. MJ: Thank you. Q. Lieutenant Commander Penland, do you know the status of the original IG complaint that you submitted? A. It's still pending. Q. And when was that IG complaint submitted? A. I first contacted Dave Bernell [ph] on the 30th of March of 2007. Q. And what were the general things that you were requesting the IG to investigate in that IG complaint? A. The misconduct by Lieutenant Commander Marshall, Commander Ward, Senior Chief Barton, Commander Masi pertaining to reprisal, acts committed against me, and also to include contract violations and---- Q. And what was the approximate dollar value of the contract violations that you were requesting they look into?

A. Up to about 20 million or more.

186 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.

187 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.

188 Q. And can you explain exactly what NECC is, what it does, what an ISIC is and how their command and what their job and oversight is at Naval Coastal Warfare Group ONE. You can sum that up. Q. As far as pertaining to Supply or just overall? I mean, they're---- A. Overall command. They're the command in charge of Naval Coastal Warfare Group---- A. Yes. Q. ----ONE, correct? A. Yes, they are. Q. And Naval Coastal Warfare Group ONE--and Naval Coastal Warfare Group ONE supplies falls under their purview? A. Yes. IMC: Thank you, ma'am. Sir, I have no further questions. MJ: Lieutenant Commander Messer. TC: No questions, sir. EXAMINATION BY THE COURT-MARTIAL Questions by the military judge: Q. Commander Penland, do you have any idea, were you apprised as to the time line for the completion of these investigations concerning your complaints? A. Sir, my initial complaint that I filed with NECC IG back in

March, Dave Bernell had a 10-day reporting requirement to report a complaint of reprisal directly to DOD IG, and he failed to meet that

189 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.

190 Q. Ninety days. A. Yes, sir. Q. Have you been given any kind of status report concerning your second complaint? A. I did receive confirmation that they have taken immediate action because it is a complaint of reprisal, which is why they like to have those complete within 90 days so additional acts of reprisal won't come about against a service member. Q. Aside from the substance of the second complaint, were you requested to provide any additional information or documentation concerning the alleged acts of reprisal? A. What they asked me to do is basically reference the first one, and I did in its entirety, and they would--they would investigate that, and I also included additional information to support my most recent allegations. MJ: Follow-on questions, Captain Callahan? IMC: No. Thank you, Your Honor. MJ: Lieutenant Commander Messer? TC: No, sir. MJ: Thank you, Commander Penland. ACC: [Resuming seat at counsel table.] MJ: Further evidence from the Defense in support of your request for continuance?

IMC: No, Your Honor.

191 MJ: Evidence from the prosecution in support of your position, Commander Messer? TC: Sir, the Government has appended to their response an e-mail that was received this morning from the SJA of MESG ONE that was sent to her from David Brunell--Bernell, who is the IG inspector, which just gives a status of the investigation which the Defense cited in their continuance request. MJ: Captain Callahan, have you had an opportunity to review the attachment? IMC: I have, Your Honor. MJ: Any objection to the Court's consideration of it? IMC: No, Your Honor. MJ: Very well. Aside from that, anything further, Commander Messer? TC: No, sir. MJ: The Court has received and reviewed both the motion and the response. I'm familiar with the arguments outlined in the request for relief. Captain Callahan, do you care to argue further in support of your position seeking continuance? IMC: If I may, please, briefly, Your Honor. MJ: Certainly. IMC: Sir, Commander Penland at this point has given over 18 years of service to the Navy and now at this point the Navy is trying to rush her into a court-martial before these complaints are done.

192 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

193 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

194 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?

195 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

196 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

197 trial. As it turns out, despite a deposition being ordered and a deposition being convened, Lieutenant JG Wiggan did not show up at that hearing, therefore, a deposition was not taken. Now the Government has gone to great length and expense to have Lieutenant JG Wiggan flown back early from deployment and be present at trial to testify. There is also a grant of immunity and an order to testify in this case to Lieutenant JG Wiggan from Rear Admiral Hering. So the Government has the expectation that Lieutenant JG Wiggan will take the stand and testify at trial. That immunity order does extend to pretrial interviews, as well, so Defense has every right, just as the Government does, to interview the witness prior to trial with the cover of immunity. MJ: When was the order to testify provided in this instance concerning Lieutenant JG Wiggans? TC: That order was signed on 6 May 2008. I have the original copy here. I can provide a copy to the Court to attach as the next appellate exhibit in order---- MJ: Very well. TC: ----at the next break. MJ: If you would do so, please, at the next recess. Anything further in terms of---- TC: Nothing further from the Government, sir. MJ: Captain Callahan?

IMC: Sir, in brief response, it certainly does make a big difference whether these allegations are substantiated. Captain

198 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

199 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

200 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

201 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.

202 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

203 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.

204 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.

205 MJ: And you believe that is--that his advice has been in your best interest concerning this continuance request? ACC: Yes, sir. MJ: Very well. Anything further from either side concerning the Defense request for continuance? IMC: Not from Defense, Your Honor. TC: Sir, I'd just like to note that at the time the Defense filed the speedy trial motion the same investigations were open at that time, too. Nothing further. MJ: Very well. The Court will take this matter under advisement, to review the additional information submitted to it. I believe, Government Counsel, you have an additional submission you'd like to have marked during the recess. TC: That's correct, sir. MJ: Very well. The Court will receive and review that exhibit, as well. I believe that will be Appellate Exhibit XXI. If we could reassemble at 1100 hours. Court stands in recess. Carry on, please. [The session recessed at 1037 hours, 14 May 2008.] [The session was called to order at 1110 hours, 14 May 2008.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the court at this time.

Counsel, are there other matters we need to address prior to entry of the Court's ruling on the Defense motion for continuance?

206 TC: No, sir. IMC: Not from Defense, Your Honor. MJ: Very well. The Court enters the following ruling pertaining to Appellate Exhibit XIX, the Defense request for continuance: Pursuant to Rule for Courts-Martial 906(b)(1), the Defense motion for continuance is granted in part. This Court notes that this is this particular defense counsel's first request for a continuance. However, the Court also notes that the continuance requested essentially is an open-ended continuance dependent on the independent actions of inspector generals who are necessarily outside the control of the Court. The Court also notes that the basis, at least the first basis for the requested continuance, completion of these inspector general investigations, involve matters unrelated to the charged offenses and are collateral to the merits of the case. The Court finds that what is significant is that there were allegations of fraud and reprisal brought by the accused against Captain Sturges and others under his command raising their potential impeachment for bias. Whether the allegations are ultimately founded or unfounded by the investigative process collateral to these proceedings does not enhance substantially or diminish substantially the impeachment value of the alleged allegations. If unfounded,

Captain Sturges and others still would be subject to impeachment for animosity towards the accused for bringing false complaints. If

207 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;

208 (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

209 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

210 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

211 request is approved, then I would serve as the military judge detailed to hear your case and I would determine your guilt or innocence concerning the alleged offenses. And if you were found guilty of any offense, then I would determine the appropriate sentence based upon any guilty findings. Do you understand that option? ACC: Yes, sir. MJ: Have you discussed these choices with your defense counsel? ACC: Yes, sir. MJ: Do you wish to be tried by a court-martial composed of members or by military judge alone? ACC: By members, sir. MJ: Very well. We will assemble the necessary members. And, Captain Callahan, aside from the issue I have left concerning Lieutenant JG Wiggans and appropriate relief, does the Defense have any motions at this time? IMC: No, Your Honor. [END OF PAGE]

212 MJ: Is the accused prepared to enter pleas to the charged offenses? IMC: Yes, sir. MJ: You may do so. Accused and Counsel, please rise. [The accused and her counsel did as directed.] MJ: I must advise you that any motion to dismiss any further offenses--any further motions to dismiss any offenses or to grant any other form of relief should be made at this time. Captain Callahan? IMC: Sir, no further motions. Commander Penland pleads: To all Charges and Specifications: Not Guilty. MJ: Very good. Your pleas will be entered into the record, Commander. Please be seated. [The accused and her counsel did as directed.] MJ: Are there other matters we need to address on the record, counsel? IMC: Not from Defense, Your Honor. TC: Sir, I think it should be addressed the issue of communications to Lieutenant JG Wiggan on the part of the accused in this case. There's some concern on my part that the witness may be intimidated possibly by certain parties in this matter to either not testify or to not comply with the order to do a pretrial interview. I'd ask that the accused at this time be warned that any conversations or communications with the potential witness in this matter would be improper.

213 MJ: Captain Callahan? IMC: Well, sir, the Government's asking a somewhat unusual request. I mean, do they have any evidence or anything to back up any of these concerns or complaints they're raising? MJ: Well, at this point, absent any further information or evidence to suggest that Lieutenant Commander Penland would attempt to obstruct justice in this case, the Court will not make such an admonition on the record. Obviously counsel have independent responsibilities and I expect them to fulfill those. IMC: Understood, Your Honor. TC: Nothing further, sir. MJ: Very well. This court stands in recess until Monday morning when we take up either preparations for trial or address additional requested relief. Court stands in recess. Carry on. [The Article 39(a) session recessed at 1121 hours, 14 May 2008.] [END OF PAGE]

214 [The Article 39(a) session was called to order at 1018 hours, 19 May 2008.] MJ: Good morning. This 39(a) hearing is called to order at Naval Base San Diego in the case of the United States v. Lieutenant Commander Penland, United States Navy. Let the record reflect that all parties present at the last session of court are again present before the Court this morning with one substitution. Ms. Brown has been detailed court reporter for this session, and she has been previously sworn. Let me verify that Lieutenant Commander Penland is present before the Court, attired in the appropriate uniform with all the awards and decorations she's entitled to wear. IMC: She is, Your Honor. MJ: Very good. The purpose for our hearing this morning is to address a number of issues that arose since our last session. The first was a second request for a continuance from the defense counsel which was submitted through e-mail exchange on the 16th of May. That has been marked as Appellate Exhibit XXXIII. The Government response strongly opposing the continuance is marked Appellate Exhibit XXIII. We'll take that matter up momentarily. Additionally the Government had also filed with the Court a motion to amend charges and specifications. That motion has been marked as Appellate Exhibit XXVII and supporting the Government's request is Appellate Exhibit XXVI. The Defense response to the Government motion to amend in opposition has been marked Appellate

215 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.

216 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

217 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

218 today, preliminary to trial. I was also informed that there is potentially one Defense witness on the merits who would be produced to testify telephonically since she is on deployment; with the accused's permission, we can do that Friday, and the Government will make the necessary arrangements to procure that testimony if the Defense decides to offer it to the members. And then I also discussed with counsel my desire to go into the counsel voir dire questions and the voir dire process today to make sure that's clear prior to trial. Do counsel concur with my summation of the 802 conference? TC: Yes, sir. IMC: Yes, Your Honor. MJ: Very good. Then why don't we discuss the continuance issue. Captain Callahan, I have marked your request for continuance from the 16th of May as Appellate Exhibit XXXIII. Essentially you have requested the Court grant a continuance. If you would just briefly summarize the purpose for the continuance and what you hope to accomplish by it. IMC: Briefly, sir, to be able to interview Lieutenant JG Wiggan. At this point he has not subjected himself to interviews from either myself or from trial counsel. Defense would like to be able to interview this witness so that we may plan and properly prepare our trial strategy based on what this witness will testify to.

219 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

220 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

221 week, those witnesses should be available. MJ: And what about the Defense witnesses that have been requested, are they also available? TC: I do not know, sir. MJ: Captain Callahan? IMC: My understanding is that they will be, sir. MJ: Very well. And certainly the parties can explore on voir dire, as you desire, any difficulties with the members for this case continuing to the following week. Certainly that's a prospect with many of the cases we try here, that they may, in fact, continue into the following week, so that is a matter that we would typically address and adjust for as necessary. Lieutenant Commander Messer, with regard to the potential concerns that Lieutenant JG Wiggan had concerning the grant of immunity, if you would, please, provide to his counsel the necessary documentation and paperwork, if that has not already been provided to Lieutenant JG Wiggan, concerning the immunity grant and order to testify. TC: Aye, sir. Just for the record, who is his defense counsel? IMC: Captain John Dunn at Miramar. TC: Yes, sir. I will contact Captain Dunn. MJ: Very well. And also, with regard to the divorce issue, Lieutenant Commander Messer, you did launch some inquiry concerning that. If you would expand for the record what you discovered.

222 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?

223 IMC: Sir, just briefly. I did phone tag with the attorney that is representing Lieutenant Wiggan for his divorce proceedings. He indicated that the divorce has been finalized; it's been finalized for some time. Again this is what he indicated to me in a voice mail message. He said that the proceedings were bifurcated, which is what is usually done in California now when parties own real estate due to difficulties with getting the real estate sold. The divorce will be finalized, but the case will stay--remain open in the courthouse for the division of the assets until the house is actually sold so they can determine whether or not any monies can be distributed from that or I guess potentially whether or not any debt is going to be distributed from that on a short sale. So his indication is that they are, in fact, divorced and the divorce is finalized, sir. MJ: Anything further from either side on the continuance issue? TC: No, sir. IMC: No, Your Honor. MJ: Very well. The Court is prepared to issue a ruling concerning the Defense request for a continuance. The Court has at this point, having reviewed the evidence submitted to it, as well as considered the arguments of both sides, determined that a reasonable continuance is appropriate in the interest of justice. However, with regard to the remaining matters that counsel desire to address during the continuance, the Court finds a brief recess is more appropriate given the interest at stake for both

224 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?

225 TC: Yes, sir. What time would you like the members here on Wednesday? MJ: 0800 would be fine. TC: Aye, sir. MJ: Defense counsel clear, as well? IMC: Yes, Your Honor. MJ: Let's next address the Government motion to amend the charges. The Government request to amend has been marked Appellate Exhibit XXVII. Also in support of that is Appellate Exhibit XXVI. The Defense response in opposition has been marked Appellate Exhibit XXV. Lieutenant Commander Messer, were you able to procure the relevant portions of the Joint Ethics Regulations? TC: I have not. As I said, sir, the current instruction is already in evidence, sir, as an appellate exhibit as the document I'm requesting judicial notice of. I will provide another copy for the purpose of your review. I have not had a chance to research to find if there is a prior copy of the JER that was erroneously alleged. MJ: Very well. Well, again I'd like to make a comparison to see if there's any substantial changes and whether there are some exceptions or exclusions that apply to one version and not the other which would aid in the Court's determination as to whether this was a major or minor change, and I think that probably at this point it would be more prudent to just defer until we have the opportunity to review the two cited sections.

226 Counsel, why don't we then go into the questions I've raised in drafting the findings instructions in this case. I had a number of questions concerning the form of the charges or specifications. These questions I sent to you by electronic message on May 15th and both parties apparently have had an opportunity to consider the questions since I have received from counsel some responses to those questions. Specifically the Government's response was marked as Appellate Exhibit XXIV. I don't believe I've had a written response from defense counsel, but I'll certainly give you an opportunity to respond orally here, Captain Callahan. You did provide several cases; I gather that will aid in your argument. With regard to the first question, "Is the Specification of Charge I a lesser included offense, multiplicious or an unreasonable multiplication of charges of Specification 1 of Charge III," Lieutenant Commander Messer, I believe in your response you provided some amplifying detail that apparently will show that there is essentially a separate offense involved. Is that correct? TC: That's correct, sir. MJ: Would you amplify for the record how so. TC: Yes, sir. The Government's position is that these offenses arise out of separate criminal transactions. With respect to Charge I and the sole Specification thereunder, the allegation there is that the accused used her personal--excuse me--that the accused used her government issued cell phone to make personal phone calls. In support

227 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

228 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.

229 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

230 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.

231 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.

232 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.

233 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

234 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

235 it's charged, that they haven't charged anything that's an indecent act. MJ: Lieutenant Commander Messer, anything further on this issue? TC: Nothing further, sir. MJ: Very well. Counsel, I'll take your arguments under submission. I'm going to defer ruling in terms of these specific offenses until Wednesday morning at 0800 hours. If you should come across any additional case authority that supports your position or is more on point concerning the issues before the Court as to the nature of the specifications, I would appreciate your providing that to the Court and your adversary counsel prior to that time; and I'll push the members' assembly time to 0900 hours since we'll have to make changes, if necessary, to the cleansed charge sheet. The last matter I'd like to discuss with you on the record this morning is the voir dire process. Do you both have the Navy- Marine Corps Trial Guide available? Captain Callahan? IMC: Sir, I left mine in my office. TC: I do not have mine, sir. MJ: All right. Why don't we take a recess here in a moment. Specifically, I'm going to go through Appendix A1 with you which are the group voir dire questions that the Court typically asks. I'll need your input for those, and it would be helpful if you actually had

236 the questions in front of you. So perhaps you can borrow one from your defense counsel compatriots. IMC: Yes, sir. MJ: Very well. Anything else we need to address on the record before we take a brief recess here? IMC: Not from Defense, Your Honor. TC: No, sir. MJ: Very well. Commander Messer, you might want to get the word out to your witnesses concerning the adjusted schedule. Why don't we take about 20 minutes here for that to occur, as well as for you to procure your trial guides. Court stands in recess. Please reassemble at quarter after the hour. Carry on, please. [The session recessed at 1056 hours, 19 May 2008.] [The session was called to order at 1125 hours, 19 May 2008.] MJ: Court is called to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time. Counsel, I'd like to take a moment with you to go over the voir dire process, if you would please follow along in the Navy-Marine Corps Trial Guide, Appendix A1. Typically I'll ask all the questions in this section that apply to the circumstances of the case and I need some input from you to make that determination. If I don't discuss a question, you can presume that I will ask the question as it's reflected in the trial guide.

237 I'll begin on Page A1-1, Question Number 4. I will use the witness list you've provided to ask the members if they're familiar with the prospective witnesses. Again if there's any changes, especially any additions, please let me know before we assemble the members. In Question 6 I noted that we have officer members--I'm sorry--officer witnesses. So I will ask Question 6 tailored for officer witnesses. We also have, I gather, enlisted witnesses, as well, so that would be an appropriate question. I could not tell but did not immediately discern that there are law enforcement witnesses. Are there any law enforcement witnesses in the case? TC: Not for the Government, sir. IMC: No, Your Honor. MJ: Very well. All be--please be seated. [All persons did as directed.] MJ: All right. So I'll skip that part. I'll also skip Questions 7 and 8. I gather there are no forensic tests involved? TC: Correct, sir. MJ: Okay. Is this case related to any other case? TC: No, sir. IMC: Not that I'm aware of, sir. MJ: Okay. So I'll skip Question 10. That part of Question 10

I'll ask, the first part of Question 10.

238 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.

239 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.

240 IMC: Yes, Your Honor. MJ: Okay. With regard to Question 31, I'll ask that question specifically with regard to Lieutenant Commander Penland. Are there prospective witnesses of other ethnic or racial backgrounds that counsel want to discuss with the members? IMC: Not Defense, Your Honor. TC: No, sir. MJ: Okay. And Question 32 I don't expect will be necessary. Then I'll invite your counsel questions and then, finally, I'll finish up with the catchall question, Number 33. In the past, I have been a little more restrictive in permitting counsel questions even if they were redundant; I'll permit them to be asked of the members. Obviously just because you've written out a question and I've approved it doesn't necessarily mean you'll want to ask it if it's already been addressed by another question, but I'll let counsel run that risk. Let's discuss the Defense proposed voir dire questions first since that was the first one marked with the court and that would be Appellate Exhibit XXX. TC: Sir, I still have never received a copy of that. MJ: Oh, okay. IMC: My apologies. I thought I had e-mailed that to you. MJ: All right. Why don't we come back to that. We'll take up the Government's questions first and then we'll give you a recess. Lieutenant Commander Messer.

241 IMC: [Handing a copy of AE XXX to trial counsel.] TC: I've just been provided a copy. That's fine, sir. I can follow along. MJ: Oh, okay. I just wanted to make sure you're familiar with them and to determine if you have any potential objections or concerns with regard to the---- TC: We can address them now, sir. MJ: Very well. With regard to the Defense proposed voir dire, my only suggestion was there are a number of "he's." I would change that to "she" to reflect the gender of your client. IMC: Yes, sir. MJ: And also I note that we typically use the term "accused" in our system. You've chosen "defendant." Either/or and however you want to address that is fine. You just might want to make that comparison for the members so they're not confused. IMC: Yes, Your Honor. MJ: Since I think a couple of them actually have been prior court-martial members, if I recall their questionnaires [marked as AE XXII], two of them I think were, in fact, in cases involving me. One was Commander Grundy; he was a senior member in one case. I think it was BH fraud case. And Captain Blonien, she was in a case; I'm not sure she actually sat through it, though. It may have been a members for sentencing case. But we'll go into that individually with the members.

242 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.

243 MJ: Well, maybe you can rephrase Question 7 to reflect levels of proof or burdens of proof, if you wish. IMC: Yes, sir. MJ: Certainly the members, since a number of them are--well, all of them are fairly senior--may have had the authority to impose non judicial punishment in the past. I think that's a fair question to pose to them and perhaps even the consequences of non judicial punishment as opposed to a court conviction. So I'll permit the questions, but if you would please refocus them to incorporate your concerns with regard to the levels or burdens of proof. IMC: Yes, Your Honor. MJ: Commander Messer, other concerns with regard to the Defense questions? TC: Just a moment, sir, briefly. I would note that Admiral Hering's name is misspelled. There is only one R in his name. [Reviewing AE XXX.] Question Number 28 is--I think is a bit vague as to has any member ever faced an allegation of violating the law. I don't know. I think members would be confused by that question and I don't know that that's proper in group voir dire anyway. MJ: Captain Callahan? IMC: Sir, what I'm looking for is people that may have been involved with the law enforcement process through their being accused of a crime themselves and because of their experiences dealing with that have affected their opinion of the justice system or potentially

244 formed biases in regards to my particular client. I have no problem asking that question in individual voir dire vice group voir dire if the Court feel it more appropriate. MJ: Well, I think since it's phrased as an allegation, I don't believe that's going to bring undue attention to any particular member, so if you'd like, you can ask it as a group, or if you want to reserve it for individual, I'll leave that to your discretion. IMC: Yes, Your Honor. MJ: Commander Messer, other concerns? TC: Just a minute, sir. [Reviewing AE XXX.] No, sir, no other objections. MJ: Very well. You may ask the questions subject to the limitations we've discussed, Captain Callahan. And have you had an opportunity review Appellate Exhibit XXXII, the Government's proposed voir dire questions? IMC: I have, Your Honor. MJ: Any objection to any of the questions posed? IMC: Yes, sir, to Question Number 7. I think it's an improper question getting into argument as to the deliberative process between the members, that one member doesn't want to see a guilty verdict and whether--or a punishment because another member doesn't want to see a punishment, and whether that's going to affect the deliberative process of the member.

MJ: Lieutenant Commander Messer, what are you trying to develop in terms of bias or potential basis for challenge here?

245 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,

246 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?

247 IMC: Again just the concern that it's dealing with the conduct unbecoming an officer. They are going to be instructed on conduct unbecoming an officer as part of their instructions from the military judge. MJ: Commander Messer? TC: Sir, I think this is different from 10 in that we're not presupposing they understand any regulation or instruction. I'm just inquiring into people's views and biases. Obviously if we have a member that answers negatively--negatively to this question and says "No, I don't think that officers should be held to a high moral and ethical standard," I mean, that's an issue that needs to be investigated on individual voir dire. That's the root of the Government's case and of the offenses before the court. MJ: I'll allow the question, although frankly it may be a bit confusing since the word "high" is somewhat vague. You might want to reconsider phrasing that more closely to the definition of Article 133, but I'll allow the question. Captain Callahan, other concerns with regard to the Government's questions? IMC: Yes, sir. In regards to 15 and 16, they're beginning to argue the facts of the case. MJ: Lieutenant Commander Messer? TC: Again, sir, I believe this is a permissible question going to any bias of the witness.

248 MJ: Well, I agree Question 15 is definitely too close to the facts and circumstances of this case, and that would not be a permissible question. With regard to 16, you may be able to rephrase it such that it does not go into the facts and circumstances of the case. If you want to test them with regard to their willingness to consider circumstantial evidence, you may ask a question along those lines. I think in 14 you have suggested that, although I'm not sure you've defined circumstantial evidence for their consideration and they won't have that instruction when I give them their preliminary instructions. But with regard to the specific facts and circumstances of photographs sent over the Internet, again that's awfully close to the facts of this case; it would not be permissible to commit the members to one way or the other with regard to those facts. So if you want to reconfigure Question 16 to reflect my anticipated instruction concerning circumstantial evidence, you can do that, but let's steer clear of the unique facts and circumstances of this case. Captain Callahan, other concerns with regard to the remaining questions? IMC: No, Your Honor. MJ: Very well. Subject to the Court's limitations, you may ask those questions on group voir dire as reflected in Appellate Exhibit

XXXII.

249 With regard to individual voir dire, my practice typically is to permit counsel considerable latitude in individual voir dire. If there are questions you want me to pose to the member individually on your behalf, let me know. I'll certainly be receptive to that request. Some questions might be more embarrassing, that counsel would prefer the Court ask; if there are those kinds of questions, I'll be glad to consider such requests. Any questions concerning the voir dire process we're going to use Wednesday? IMC: Not from Defense, Your Honor. MJ: Lieutenant Commander Messer? TC: Nothing from the Government, sir. MJ: Anything else we need to address on the record this morning? IMC: No, Your Honor. TC: Sir, with respect to the issue you had with minor/major change in the instruction, the preliminary research that we're coming up with is that the JER instruction is dated August 30th, 1993. So the JER instruction--the date on the--original date on the charge sheet was the original date of the Joint Ethics Regulation. The Joint Ethics Reg--portions of the Joint Ethics Reg were changed on March 25th, 1996 to include the section that we referenced. So---- MJ: So it's the original date, as amended by the next date?

TC: Right. So, I mean, technically I guess the Government's position now is it may not be proper to change the date to the amended

250 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.

251 MJ: So even if you struck out the section citation, there still would be a citation to a violation of the Joint Ethics Regulation; it would just not be a specific citation to a section? TC: That's correct, sir. MJ: And so the greater specificity in this instance the Government wishes to focus on one particular section and that's the section you wish to amend to? TC: That's correct, sir. MJ: And what's that section number? TC: That section number is 2-301. MJ: And then after the date of 30 August 1993, it would be "as amended by"? TC: "25 March 1996." MJ: Very well. Captain Callahan? IMC: Sir, I still have the same objections as written in the motion, in regards to whether or not that's amended and the change to promulgation date held off for further research on that myself, sir. MJ: Very well. Why don't you look into that further. I mean, if it's a typographical and administrative error, that's certainly a horse of a different color. IMC: Yes, sir. MJ: And if the Government is amending the specification to provide greater specificity, as it would in perhaps a Bill of

Particulars, then that again might not be a major change. IMC: Understood, Your Honor.

252 MJ: Very well. If counsel could look into those issues. Again, we'll resolve them Wednesday morning before we assemble the members. Anything further from either side on the record? TC: No, sir. IMC: No, Your Honor. MJ: Very well. The court stands in recess until 0800 hours Wednesday morning. Carry on, please. [The Article 39(a) session recessed at 1151 hours, 19 May 2008.] [END OF PAGE]

253 [The Article 39(a) session was called to order at 0828 hours, 21 May 2008.] MJ: Good morning. This 39(a) hearing is called to order in the case of the United States v. Lieutenant Commander Penland, United States Navy. Let the record reflect that all parties present at the last session of court are again present before the Court this morning. Let me verify that Lieutenant Commander Penland is present before the Court, attired in the appropriate uniform with all the awards and decorations she's entitled to wear. IMC: She is, Your Honor. MJ: Very good. A number of matters I'd like to address this morning before we assemble the members for the selection process. The first is with regard to the Government's motion to amend the Specification of Charge I, that motion is granted. The Court finds that the modification is a minor amendment or a minor change to the Specification to reflect the correct section of the Ethics Regulation that was allegedly violated. Specifically, the Court finds that the change does not alter the substance of the alleged offense and provides greater specificity for the members and double jeopardy protection for the accused. Had the Government not been permitted to make that amendment, the language that was incorrect could have been stricken and the Specification would still state an offense under the code. So, therefore, the motion is granted as to amending the Specification under Charge I.

254 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.

255 Counsel clear as to the Court's ruling on this matter? IMC: Yes, Your Honor. TC: Yes, sir. MJ: Very well. The next thing I'd like to discuss is the cleansed charge sheet that will be provided to the members. That has been pre-marked as Appellate Exhibit XXXV [sic]. Have counsel for both sides had an opportunity to review the cleansed charge sheet? TC: Yes, sir. IMC: Yes, Your Honor. MJ: Any objection to providing it to the members in its present form, Appellate Exhibit XXXV? TC: No, sir. IMC: No, Your Honor. MJ: I may have misspoke. Let me just double check that reference to the appellate number. Appellate Exhibit Number--it's either XXXV or XXXVI. Ah, XXXVI. I misspoke. Okay. We'll provide Appellate Exhibit XXXVI to the members. Speaking of members' folders, have counsel had an opportunity to review the members' folders to ensure that only proper materials are in the folders? TC: Yes, sir. IMC: Yes, Your Honor. MJ: Very well. Have you also had an opportunity to review the members' spaces and deliberation area to ensure that there are no improper materials in those areas?

256 TC: I have, sir. IMC: Yes, sir. MJ: Very good. I will also note for the record over the evening recess counsel provided updated witness lists to the Court. Rather than encumber the appellate record, I'll permit counsel to swap out the most current version of the witness list for the one that we've already marked. I also reviewed the maximum punishment issue we addressed earlier. I concur that at least at present, given the state of the charged offenses, the accused faces a maximum authorized punishment of 16 years' confinement and dismissal. Counsel concur? TC: Yes, sir. IMC: Yes, Your Honor. MJ: Obviously that may change based upon findings or if there are lesser included offenses; but with regard to advising the members of the punishments, that would be the advice I'd provide them at this point. Let me also discuss a Government demonstrative aid. That was actually marked Appellate Exhibit XXV. It apparently is some sort of a time line. Have you had an opportunity to review the demonstrative aid, Captain Callahan?

IMC: I have, Your Honor.

257 MJ: Any objection to the Government's use of it for opening statement? IMC: No, Your Honor. MJ: Very well. Commander Messer, how do you intend to utilize your demonstrative aid? Are you going to use the computer screens or do you have an overhead? What is the approach you're going to use? TC: Sir, my thought was to put the document on the Elmo and then publish it via the video monitors to the members. MJ: Very well. You can do that. Have you had an opportunity to check and make sure everything is functioning? TC: Well, sir, no, I haven't and that may be an issue. It might be easier, you know, if the Court would agree to just make copies for each member and provide it in their folder or to them as a demonstrative aid. MJ: Well, since it's a demonstrative aid, I don't want them to have that to take back with them. That might give them an undue emphasis on it. What we can do, though, is after the selection process of the members, we're going to take a lunch recess. You can test the equipment at that point. TC: Yes, sir. MJ: Very well. I'll also note I did have a question concerning one of the members. Apparently the names didn't match the convening order and the questionnaires. There was further inquiry conducted by the Government. Apparently one of the members has since changed her name since the original amending order was prepared. Commander

258 Hostetler is now Commander Galvez and that actually has resulted in an additional amending order 03B-07. So I think that issue has been resolved. The court reporter has informed me that the prosecution has pre-marked a number of its exhibits for the merits. I will also note that with regard to judicial notice, the Court received a supplemental request for judicial notice from the prosecution, and that's been marked Appellate Exhibit XXXVII. Captain Callahan, have you had an opportunity to review that request for judicial notice? IMC: I have, Your Honor. MJ: Any objection to it? IMC: No, sir. MJ: And also with regard to the earlier judicial notice concerning the Joint Ethics Regulation, any objection to the Government's request for judicial notice of that regulation? IMC: No, sir. MJ: Very well. I will fine tune my findings instructions. I will note also for the record I did a supplemental draft of the findings instructions and provided that to counsel. Since it is obviously in very preliminary form, I'm not going to mark it at this time as an appellate exhibit, but I will make the necessary changes to incorporate the judicial notice requests.

Counsel, we also discussed earlier stipulations of fact concerning jurisdiction. Have the parties reached a stipulation that

259 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

260 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.

261 MJ: Well, in either event, it will be at a 39(a) session outside the members' presence to determine what his stance is concerning his participation here. I am not going to, at least at this point, conduct a mini trial to determine the validity of the order. I mean, if he's aware of the order, then he will obey or disobey it at his peril. We'll have to see if there's other remedies or relief the Court can provide to either side if you have such a request. Be prepared with that obviously at a 39(a) session outside the members' presence. Okay. Other matters we need to address on the record this morning before the members assemble at 0900? TC: No, sir. IMC: Not from Defense, Your Honor. MJ: Very well. Court will stand in recess until 0900. Carry on, please. [The session recessed at 0839 hours, 21 May 2008.] [The session was called to order at 0909 hours, 21 May 2008.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time. During the recess, it was brought to the Court's attention that Lieutenant JG Wiggan had consulted with defense counsel and is apparently willing to submit to pretrial interviews, so the Court will give counsel additional opportunity to do that during the lunch recess.

262 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.

263 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]

264 [The court-martial was called to order at 0913 hours, 21 May 2008, pursuant to the orders previously inserted in the record.] MJ: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Good morning, members. I believe we have all our captains in the first row and commanders in the second row. Please take your seats when you arrive at them. [The members did as directed.] BAILIFF: All rise. MJ: No. Members may be seated. That's okay. All others, please be seated. [All persons did as directed.] MJ: Good morning, members. This general court-martial is called to order in the case of the United States v. Lieutenant Commander S. L. Penland, Supply Corps, United States Navy. Lieutenant Commander Messer, if you would please state the jurisdictional data for the court-martial. TC: Yes, sir. This court is convened by Commander, Navy Region Southwest, by General Court-Martial Convening Order 03-07, dated 6 November 2007, as amended by Special Court--or General Court-Martial Amending Order 03A-07, dated 14 May 2008, and 03B-07, dated 20 May 2008. The accused, Lieutenant Commander Syneeda L. Penland,

Supply Corps, United States Navy, Navy Coastal Warfare Group ONE, and the following persons detailed to this court-martial are present:

265 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

266 need to be made, please raise your hand and we'll note those for the record. [The members did as directed.] MJ: Affirmative response from Captain Gentile, Captain Booker. Captain Gentile, what's the change, sir? MEMBER [CAPT GENTILE]: Dental Corps. MJ: Dental Corps. MEMBER [CAPT GENTILE]: Correct. MJ: Yeah, I thought that. Captain Booker, sir? MEMBER [CAPT BOOKER]: Supply Corps. MJ: Supply Corps. We'll add that. Excellent. Those were the two changes I thought we needed to make. Are there any other changes that need to be made, members? Negative response from all of our panel members. Very well. The members will now be sworn. Commander Messer. TC: Sir, would you like me to make the changes to the convening order at this time? MJ: If you'd like to do that now, you may approach. TC: Thank you, sir. I'm retrieving from the court reporter which has been marked as---- MJ: They're not marked.

TC: Oh. MJ: That should be amending order 3A.

267 [Trial counsel made pen-and-ink changes to Amending Order 03A-07.] MJ: And have the changes been made, Commander? TC: Sir, I've made the changes to the convening order. MJ: Very well. If you will please swear the members at this time. TC: Members, please rise. MJ: All rise. [All persons did as directed, and the members were duly sworn.] MJ: Thank you. All please be seated. [All persons did as directed.] MJ: This general court-martial is now properly assembled. Lieutenant Commander Messer, is the Government ready to proceed? TC: Yes, sir. The prosecution is ready to proceed with trial in the case of the United States v. Lieutenant Commander Syneeda L. Penland, Supply Corps, United States Navy. The general nature of the charges in this case are violations of Uniform Code of Military Justice, Article 92, 107, 133 and 134. The charges were preferred by LN2 Saniya Solis, United States Navy, investigated by Lieutenant Commander Ken Ian, Judge Advocate General Corps, United States Navy, and Lieutenant Commander Kimberly McCann, Judge Advocate General Corps, United States Navy, and forwarded with recommendation as to disposition to Commander, Navy

Coastal Warfare Group ONE.

268 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.

269 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

270 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

271 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

272 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

273 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.

274 MJ: Do any of you know the counsel assigned to this case? Negative response from all panel members. Do any of you know the accused in this case, Lieutenant Commander Penland? Negative response from all panel members. The following individuals may be called as potential witnesses in the case. If you are familiar with them, please raise your hand and I'll note that for the record. NCC Kimberly Lewis-Wiggan, United States Navy. Negative response from all panel members. Lieutenant JG Mark Wiggan, United States Navy. Negative response from all panel members. Commander Brendon Doud, United States Navy. Negative response from all panel members. Lieutenant Commander Thomas Moninger, M-O-N-I-N-G-E-R, United States Navy. Negative response from all panel members. Captain John B. Sturges, United States Navy (Retired). Negative response from all panel members. PS1 Cheston A. Lee, United States Navy. Negative response from all panel members. SKC Stacy Zogaib, Z-O-G-A-I-B, United States Navy. Negative response from all panel members. Lieutenant Commander Kristen McCarthy, JAG Corps, United States Navy Reserve. Negative response from all panel members.

Commander Matthew Masi, United States Navy. Negative response from all panel members.

275 Mr. Brian Duffy, civilian employee. Negative response from all panel members. PS1 Crawford, United States Navy. Negative response from all panel members. Captain Mike Johnson, United States Navy. Negative response from all panel members. Commander Larry Milner, United States Navy. Negative response from all panel members. Captain Jack Noel, United States Navy. TC: Sir, I believe Commander Grundy had a---- MJ: Oh, Commander Grundy? MEMBER [CDR GRUNDY]: Could you repeat that previous one. MJ: Commander Larry Milner, United States Navy. Affirmative response from Commander Grundy. Negative response from the other panel members. Captain Good? MEMBER [CDR GOOD]: For Captain Noel, sir. MJ: Very well. Thank you. Okay. And that was Commander Good. Molisa Cooper, San Marcos, California. Negative response from all panel members. William Blair, San Diego, California. [Negative response from all panel members.] MJ: Chief Warrant Officer Stephen Gevias, G-E-V-I-A-S, H and S

Battalion, MCRD. Negative response from all panel members.

276 And YN1 Christina Cunningham, USS MOBILE BAY. Negative response from all panel members. Statement: Members, when you decide whether to believe or disbelieve a witness, you should consider the witness' intelligence, candor and manner of testifying, relationship to either side of the case, whether that testimony is corroborated by the other evidence, and any other factors from your own experience that would indicate to you whether or not the person is telling the truth. Question: Do any of you have any personal prejudices or feelings which would influence your deliberations in any way or prevent you from weighing the testimony of each witness in this case by the same standards you would the testimony of all witnesses? Negative response from all panel members. Statement: A person's status, such as an officer or a policeman, cannot be used as the sole basis to consider that person's testimony more believable than the testimony of any other witness. However, you may consider that status along with all other factors when weighing the credibility of that person. Question: Would any of you give the testimony of an officer witness any higher credibility than the testimony of an enlisted person solely because of the individual's status as an officer? Negative response from all panel members. Do any of you know anything at all about the facts or issues in this case? Negative response from all panel members.

277 Has anyone mentioned anything to you or have you read anything about the incidents alleged in the charges you've just read? Negative response from all panel members. Statement: During the court-martial, it may occur to you that the testimony of a witness or some other evidence submitted causes you to recall something that you do not now recall about this case. If any of you have such a recollection, you must totally disregard that recollections as if you had never heard of it, and this applies throughout the court-martial. Question: Is there any member who cannot follow this instruction? Negative response from all panel members. Statement: You also must be able to do this even if what you previously heard or read or what you now recall conflicts with or is different from what you hear in the courtroom. Question: Is there any member who cannot follow that instruction? Negative response from all panel members. Do any of you sign, prepare or provide information for the evaluation or fitness report of any other court-martial member? Negative response from all panel members. Do any members know the other panel members? Affirmative response from Commander Grundy and from Commander Kelsch and Commander Galvez and Captain Newton. Okay. Captain Newton, who do you know?

MEMBER [CAPT NEWTON]: I know Commander Grundy. MJ: Okay. Anyone else from the panel?

278 MEMBER [CAPT NEWTON]: And Commander Galvez. MJ: Okay. Commander Galvez, Captain Newton? MEMBER [CDR GALVEZ]: Yes. MJ: Anyone else? MEMBER [CDR GALVEZ]: No, sir. MJ: Commander Grundy, Captain Newton? MEMBER [CDR GRUNDY]: Captain Newton and, I'm sorry, Captain---- MJ: Captain Blonien? MEMBER [CDR GRUNDY]: Yes. MJ: Okay. And Captain Blonien? MEMBER [CAPT BLONIEN]: Commander Kelsch, sir, and work together, but I was thinking she was coming to a command. MJ: Okay. MEMBER [CAPT BLONIEN]: So I just kind of know her. MJ: And Commander Grundy, as well? MEMBER [CAPY BLONIEN]: Commander Grundy, as well. MJ: Thank you, ma'am. Okay. And Commander Kelsch? MEMBER [CDR KELSCH]: Captain Blonien. MJ: Thank you. Okay. Did I miss anyone? [Negative response from all panel members.] MJ: And we'll ask you individually about those associations when we have you for individual follow up.

279 Do any of you have immediate family members who are law enforcement officers, prosecuting or defense attorneys, or otherwise employed in law enforcement activities? Affirmative response from Captain Blonien, Commander Good, Commander Grundy and Captain Gentile and Commander Good. Statement: Each court member is entitled to an equal voice and vote with all the other members, regardless of rate, grade or rank. Influence through the use of pay grade, position or command is strictly prohibited. Question: Is there any member who cannot follow this instruction? Negative response from all panel members. Statement: It appears that this case may have extended sessions during the day. I anticipate probably 1830 for the balance of this week or perhaps a little bit later depending on where we are in the flow of testimony, additionally with a Saturday session, if necessary. When you are assigned as a member of this court-martial, this assignment becomes your primary duty and takes precedence over all the other duties you may have. Nonetheless, we're all individuals with other obligations and commitments. So I ask, do any of you have any official duties or personal matters that you must attend to that might affect your ability to properly discharge your duties as a court-martial member due to the expected sessions of this court? Affirmative response from

Commander Grundy and Commander Good. Commander Galvez, no? MEMBER [CDR GALVEZ]: Well----

280 MJ: Kind of, sort of? MEMBER [CDR GALVEZ]: Need time to make some arrangements. MJ: Very well. We can talk about that. And just for planning purposes, after we're done with the members' selection process, I'll anticipate taking a fairly lengthy lunch hour, so if you need to make any adjustments, there will be adequate time to do so, at least for this evening. Negative response from the other panel members. Statement: As court members, you must keep an open mind regarding the verdict until all the evidence is in and you have been instructed on the law of this case. Question: Is there any member who cannot follow this instruction? Negative response from all panel members. Statement: I will instruct you prior to your deliberations on the guilt or innocence of this accused. I will advise you that she must be presumed to be innocent unless and until her guilt is established by legal and competent evidence beyond a reasonable doubt; that in this case, if there is a reasonable doubt as to the guilt of the accused, that doubt shall be resolved in her favor and she shall be acquitted. I will also instruct you that the burden of proof to establish the guilt of the accused beyond a reasonable doubt rests upon the Government. I will give you other instructions concerning the law, as well, that you must follow.

Question: Have any of you formed or expressed an opinion concerning the guilt or innocence of this accused? Negative response

281 from all panel members. Statement: You may expect or desire the accused to testify. You are advised that the accused has an absolute right not to testify in this case. The fact that an accused may elect not to testify in her own behalf may not be considered adverse to the accused in any manner. The burden of proof to establish the guilt of the accused beyond a reasonable doubt rests upon the Government. This burden never shifts to the accused to establish her innocence or to disprove any fact necessary to establish each element of the offenses alleged. Question: Is there any member who cannot follow this instruction? Negative response from all panel members. Question: Is there any member who will be unable to follow my instructions on the law that must be applied to this case? Negative response from all panel members. If sentencing becomes necessary, members, based upon any findings of guilty, you must keep open minds regarding that sentence until all the evidence is in and you have been instructed as to the law. Your decision as to an appropriate sentence must be based solely on the matters that are properly presented to you during this trial. Therefore, as members, you cannot have in your own minds a set sentence until the case is over. Question: Is there any member who cannot follow this instruction? Negative response from all panel members.

282 In the event the accused is found guilty of any offense, then it becomes your duty to adjudge an appropriate punishment. Again, I will instruct you on the law you must follow in arriving at an appropriate sentence in this case based upon any guilty findings. Included will be my instruction to the effect that you should consider all matters presented in extenuation and mitigation of the offenses by the accused, as well as any matters presented in aggravation of the offenses by the trial counsel. Question: Is there any member who cannot follow this instruction? Negative response from all panel members. Statement: Again, if sentencing becomes necessary based on any guilty findings, you must arrive at an appropriate punishment and each of you must be able to give fair consideration to the entire range of permissible punishments in this case from the least severe which would be no punishment at all, the conviction itself serving as a punishment, to the most severe which could include a dismissal and confinement for up to 16 years. Question: Will each of you be able to give such consideration to the full range of punishments if sentencing becomes necessary? Okay. Affirmative response from all panel members. Statement: I will instruct you once again, if sentencing should become necessary, that you may not have any preconceived formula or any fixed, inelastic or inflexible attitudes concerning a particular type of punishment that you feel must or should be imposed, including any opinion as to whether a dismissal or confinement must be

283 adjudged simply because of the nature or number of these offenses or because the accused has been found guilty. Question: Is there any member who cannot follow this instruction? Negative response from all panel members. Question: Have any of you formed or expressed an opinion at this time as to the sentence that should be adjudged in this case, if sentencing becomes necessary? Negative response from all panel members. Question: Having reviewed the charges and specifications before you, do any of you at this time harbor any thoughts or feelings regarding punishments that might reasonably affect your ability to adjudge a completely fair, impartial and appropriate sentence in this case if the accused is convicted of any of the charged offenses, anything at all? Negative response from all panel members. Question: Is there anything at all in your past education, training or experience or any other matter that you feel that you would not be able to set aside and that would make it difficult or impossible for you to conduct your deliberations in a completely fair, impartial or unbiased manner, anything at all? Negative response from all panel members. Question: Are any of you aware of anything whatsoever, whether I have touched on it or not, that you feel should be disclosed or that you would feel would have an affect on your ability to sit as a fair and impartial member in this case or that might in any way improperly influence your deliberations in this case? Negative

284 response from all panel members. Do any of you know Rear Admiral Hering, the Convening Authority of this case? Affirmative response from Captain Stuyvesant. MEMBER [CAPT STUYVESANT]: Stuyvesant. MJ: Stuyvesant. Thank you, Captain. And Commander Galvez. Negative response from all other panel members. Does any member know Captain Sturges? Negative response from all panel members. MEMBER [CAPT STUYVESANT]: Excuse me. I may know of him. I'd have to see him. The name sounds somewhat familiar, but I'm not sure. MJ: Aye, sir. MEMBER [CDR GOOD]: I would have the same response. MJ: Very well. MEMBER [CDR GOOD]: His name is familiar to me. MJ: He was, I believe, a commanding officer of Naval Coastal Warfare Group. IMC: Naval Coastal Warfare Group ONE, sir. MJ: Does that help, members? Still need the face? Very well. And a negative response from other panel members. Question: Do any of you have any racial, ethnic, religious or other prejudices that would prevent you from serving as a fair and impartial member of this court-martial? Negative response from all panel members.

Question: Does the fact that the accused is African- American cause you to have any feelings toward her that would prevent

285 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

286 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

287 exist in the evidence? Affirmative answer all members. Do the members understand that two people may remember the same event a slightly different way? Affirmative answer all members. Do the members understand that although two witnesses may remember the same event slightly differently, this does not mean that both witnesses did not witness the same event? That's affirmative answer all members. Is there any member who feels inclined to vote against the Defense or against the Government at this point in time? Negative response all members. And, lastly, is there anything about this case that makes you hesitate to sit as a member? Negative response all members. Thank you, sir. MJ: Captain Callahan, questions for the panel? IMC: Thank you, Your Honor. Good morning, ladies and gentlemen. Ladies and gentlemen, has any member heard Admiral Hering, Captain Sturges or Captain Harr discuss military justice issues? Negative response from all members. Will the fact that Admiral Hering convened this court- martial affect your evaluation of this case? Negative response from all members. Has any member received any legal advice or counsel, whether professional or personal, from Lieutenant Commander Messer, Lieutenant Commander Marshall or any judge advocate serving as the SJA

288 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

289 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

290 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

291 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

292 response from all panel members. Members, I'll give you my first, what I call my standard instructions. Any time you're outside this courtroom, you may not discuss the facts of this case with anyone until you're in your closed session deliberations for the many reasons I discussed earlier. If anyone should attempt to discuss the case with you, stop that person immediately and advise me at the next session of court. Please do not refer to any sources related to this case or the law related to this case when you're outside the presence of the courtroom, unless it's been properly admitted to you. Members, what I anticipate is that we will probably invite you all to return individually to ask you several questions. I cannot fix exactly how long that process is going to take. I can tell you we'll start with our senior member, Captain Gentile, and we'll work our way down through the panel based on your seniority and as reflected in the convening and amending orders. Typically it's 10 to 15 minutes of questions per member, maybe more, maybe less. So if you're near the top on the list, then please stand by in the deliberations room. If you're near the bottom, you can go stretch your legs, grab a snack, make a call, do whatever you like, but please don't stray too far from the deliberations area. Again, if you have any questions at this time, please raise your hand and I'll be glad to address them with you.

[Negative response from all panel members.]

293 MJ: Very well. Members, if you would, please, close your folders. Captain Gentile, unless you need a break, sir, we'll ask you to remain with us. And I will at this time excuse the other members. Please remain in the deliberations room---- BAILIFF: All rise. MJ: ----unless you're near the bottom. [All persons did as directed.] MJ: The members may depart except for Captain Gentile. [Except for CAPT Gentile, all other members withdrew from the courtroom.] [The court-martial recessed at 0959 hours, 21 May 2008.] [END OF PAGE]

294 [The Article 39(a) session was called to order at 1000 hours, 21 May 2008.] MJ: Please be seated, Captain. MEMBER [CAPT GENTILE]: Thanks. [Being seated.] MJ: And let the record reflect that all the members have departed except for Captain Gentile. INDIVIDUAL VOIR DIRE OF CAPTAIN MICHAEL J. GENTILE Questions by the military judge: Q. Captain, I believe you indicated that you have close family members or friends who are involved with either the law, in terms of prosecution of defense or--and medicine, I gather, as well? A. Correct. Well, medicine, yeah, that's---- Q. Obviously. A. That's okay. My brother-in-law is a defense attorney in Colorado Springs. My nephews on my wife's side are both law enforcement officers down in Florida. Q. With regard to your brother-in-law, what kind of law does he practice, sir? A. Gosh. Q. Does he practice criminal law, do you know? A. I think so, yeah. I mean--yeah, I wouldn't be able to tell you---- Q. Okay.

A. ----to be honest.

295 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.

296 Q. Are you still a practicing member of the church? A. Yes, I am. Q. Obviously the church has some fairly specific views concerning adultery. Will you be able to at least set those aside for the purposes of this trial and base your determinations as to what the law is as I instruct you on the law? A. Yes. Q. And, sir, you're a dentist, is that correct? A. Correct. Q. You have a specialty I think, as well? A. I'm a prosthodontist. Q. What exactly is that, sir? A. Oh, prosthodontist is dental implants, crown and bridges, dentures, partials. MJ: Thank you, sir. MEMBER [CAPT GENTILE]: Sure. MJ: Follow-on questions for Captain Gentile, Lieutenant Commander Messer? TC: None from the Government, sir. MJ: Captain Callahan? IMC: Thank you, sir. Questions by the individual military counsel: Q. Sir, just to be clear, you do not know anybody that's either committed adultery or anybody--any spouse that's--anybody that's had their spouse commit adultery?

297 A. I'm going to have to say no. Q. Yes, sir. I believe you indicated you served as an investigating officer before, sir? A. It was quite a while ago, probably as a lieutenant commander. It had to do with someone breaking the chain of urinalysis, sir. Q. Yes, sir. And then, lastly, sir, is there anything about the Catholic Church's teachings on adultery that would affect the sentence you would give in this case if Lieutenant Commander Penland was found guilty? A. No. IMC: Thank you, sir. Thank you, Your Honor. MJ: Lieutenant Commander Messer, follow-on questions? TC: Sir, just briefly. Questions by the trial counsel: Q. Sir, based on your involvement as an investigating officer back when you were an O-4, would that in any way cloud your judgment or change your opinion in this case on how you go about evaluating the evidence in this case? A. It was so long ago, I'm going to have to say no. TC: Thank you, sir. MJ: Captain Callahan?

IMC: Nothing further, Your Honor. Thank you.

298 MJ: Captain, thank you for your responses. You may join the other members at this time. And if we could have Captain Newton, please, Bailiff. All rise. [All persons did as directed, and CAPT Gentile withdrew from the courtroom.] MJ: And let the record reflect that Captain Gentile has rejoined the other members. [CAPT Newton entered the courtroom and was seated.] MJ: Let the record reflect that Captain Newton has rejoined the court. All others please be seated. [All persons did as directed.] INDIVIDUAL VOIR DIRE OF CAPTAIN MARY B. NEWTON Questions by the military judge: Q. Captain, could you just briefly explain what your present duty assignment involves. A. Yes. I'm currently the N1, director of manpower personnel administration for Commander, Naval Special Warfare Command. Q. Would you have any involvement with the Naval Coastal Warfare Group at all here in San Diego? A. I don't. Q. And you were not familiar with the name Captain Sturges? A. I am not.

MJ: Okay. Thank you, ma'am. Follow-on questions for Captain Newton? Actually, I think

299 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.

300 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.

301 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.

302 Q. Any recall of how well he did there? He obviously got through it. A. I don't recall that, no, sir. Q. Okay. How about Commander Galvez? A. We have only recently had maybe two or three phone calls of a professional nature. She works at Surface Forces in the N1 shop and I'm in the N1 at Naval Special Warfare Command, so we've had occasion only over the last couple of weeks. She was actually inquiring about being the relief in my job. Q. Oh, okay. A. Then I called her just yesterday asking if she knew of a situation where I could help one of the Sailors who was negotiating orders and so recent and purely professional help. Q. Anything about your association with either of the officers which would cause you to hesitate to serve with them as a member of this panel? A. No, sir. Q. Based on those associations, do you believe that the individual officers will, in fact, be able to exercise their equal voice and vote? A. I do, sir. MJ: Follow-on questions for Captain Newton, Lieutenant Commander Messer?

TC: Not from the Government, sir. MJ: Captain Callahan?

303 IMC: Please, sir. MJ: Very well. Questions by the individual military counsel: Q. Good morning, ma'am. A. Good morning. Q. Ma'am, I noted from your court-martial questionnaire that you've given nonjudicial punishment before. A. Yes. Q. Approximately how many times have you given nonjudicial punishment? A. I would say approximately four or five times. Q. Did any of those cases of NJP involve either adultery, orders violations or false official statements? A. No. IMC: Thank you, ma'am. Thank you, Your Honor. MJ: Lieutenant Commander Messer, anything, follow up? TC: No, sir. MJ: Thank you, Captain. You may rejoin the other members. Please do not discuss the questions or your answers with them at this time. You may rejoin them. BAILIFF: All rise. [All persons did as directed, and CAPT Newton withdrew from the courtroom.] MJ: And if we could have Captain Stuyvesant.

304 BAILIFF: Stuyvesant, sir? MJ: Stuyvesant. Thank you. And let the record reflect that Captain Newton has departed the courtroom. [CAPT Stuyvesant entered the courtroom and was seated.] MJ: And let the record reflect that Captain Stuyvesant has rejoined the court. All others, please be seated. [All persons did as directed.] INDIVIDUAL VOIR DIRE OF CAPTAIN JOSEPH STUYVESANT Questions by the military judge: Q. Captain, if we could begin with what are your present duties at the Commander, Naval Air Forces? A. I'm stashed over there. I just returned from IA and I'm---- Q. And welcome back, sir. A. Thank you. And I'll be PCS'ing to the Navy Region in August. Q. What will be your duties at the Navy Region, sir? A. I'll be the chief of staff. Q. Congratulations. A. Thank you. Q. I believe with regard to your questionnaire you indicated that you've been a commanding officer in a number of settings, is that correct, sir?

A. Yes.

305 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

306 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.

307 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.

308 Q. Any close friends or acquaintances involved with that setting? A. No. Q. Did any of those cases involve criminal prosecution aside from the ones you discussed with us here? A. No. Q. I believe you also indicated reading some sort of a news account involving adultery. What do you recall, sir? A. I was thinking of the recent case with Vice Admiral Stufflebeam who was somebody that I knew fairly well. Q. Is there anything about that particular case that you read or that you know about that would cause you to be reluctant to serve here as an impartial member of the case? A. No. Q. Do you have any strong opinions as to how the situation was handled with Vice Admiral Stufflebeam? A. No. MJ: Follow-on questions for Captain Stuyvesant? Lieutenant Commander Messer? Questions by the trial counsel: Q. Good morning. You indicated that you know Rear Admiral Hering. What type of involvement have you had with him? What level of relationship do you have?

A. I met him probably twice and had a short interview with him about a year ago for the upcoming job that I'm going to.

309 Q. Do you see any apparent or actual conflict here with you assuming duties as the chief of staff come end of summer and the fact that you'll be called on to be a voting--you may be called on to be a voting member of a court-martial he convened here today? A. No. Q. Do you feel pressured in any way that because you're going to work for Admiral Hering that he may change his opinion of you if you were to, say, acquit the accused in this case? A. No. Q. And just to be clear, you have not had any discussions with the admiral or anyone else from the Region about this case? A. I haven't spoken to Admiral Hering since June of last year. TC: Thank you, sir. No further questions. Questions by the military judge: Q. Captain, during your discussions with Admiral Hering, did he discuss his views of good order and discipline or concerns along those lines that he may have for this Region? A. When we talked during the interview, we talked mostly about alcohol use and he asked me about different techniques that we used in Sigonella related to our DUI numbers came significantly down and he asked specific questions about what we did. So that was as close to discipline as we talked. MJ: Thank you, sir.

Commander Messer, anything further at this point? TC: No, sir.

310 MJ: Captain Callahan? IMC: No. Thank you, Your Honor. MJ: Very well. Captain, thank you for your responses. You may join the other members at this time. Please do not discuss---- BAILIFF: All rise. [All persons did as directed.] MJ: ----our questions or your responses with them. [CAPT Stuyvesant withdrew from the courtroom.] MJ: And let the record reflect that Captain Stuyvesant has rejoined the other members. And if we could have Captain Booker, please. [CAPT Booker entered the courtroom and was seated.] MJ: Let the record reflect that Captain Booker has rejoined the court. All others, please be seated at this time. [All persons did as directed.] INDIVIDUAL VOIR DIRE OF CAPTAIN ALLEN D. BOOKER Questions by the military judge: Q. Captain, what are your present duties at SPAWAR? A. Director of contracts. Q. And you're a Supply Corps officer, sir? A. Yes, sir. Q. How long have you been in Supply Corps? A. Twenty-two years.

Q. And you do not know Lieutenant Commander Penland? A. No.

311 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.

312 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----

313

Q. Despite those religious beliefs and teachings, will you be willing and able to follow my instructions as to the law of adultery and apply my instructions to the case issues that are submitted to you? A. Yes, sir. Q. Any hesitation to do that based on your religious beliefs? A. No, sir. MJ: Follow-on questions for Captain Booker, Lieutenant Commander Messer? Questions by the trial counsel: Q. Captain Booker, in the course of your duties, have you been involved in any IG complaints dealing with contract irregularities? A. No. Q. Have you ever been called on to investigate any type of contract irregularities, either commands you've worked at or other commands? A. No. Q. Have you--and I think you've already answered this. You're not aware of any allegations of contract irregularities at Navy Coastal Warfare Group ONE? A. No. Q. Does the fact that Commander Penland is a member of the

Supply Corps, as you are, affect your judgment in the case for better or for worse in any way?

314 A. No, sir. TC: I have no further questions. MJ: Captain Callahan. IMC: Thank you, Your Honor. Questions by the individual military counsel: Q. Good morning, sir. Sir, I believe you indicated that you served as an investigating officer before? A. Yes. Q. Approximately when was that? A. Back in when I was on board the USS BELLEAU WOOD as supply officer and that was back in 2002. Q. What was the general nature of that investigation? A. Theft. Q. Is there anything from serving as an investigating officer that would make you more favorable towards the Government at a court- martial? A. No. Q. And also, sir, in regards to your religious beliefs, in the event that Lieutenant Commander Penland is convicted, is there anything about your religious beliefs that require you or you feel weigh strongly upon you to give a certain sentence? A. No, sir.

IMC: Thank you, sir. Thank you, Your Honor. No further questions.

315 MJ: Lieutenant Commander Messer, follow-on questions? TC: No follow-up questions, sir. MJ: Very well. Captain, thank you for your responses. You may rejoin the other members. Please do not discuss those responses or our questions. BAILIFF: All rise. [All persons did as directed, and CAPT Booker withdrew from the courtroom.] MJ: And let the record reflect that Captain Booker has departed the courtroom. If we could have Captain Blonien, please. [CAPT Blonien entered the courtroom and was seated.] MJ: Let the record reflect that Captain Blonien has rejoined the court. All others, please be seated. [All persons did as directed.] INDIVIDUAL VOIR DIRE OF CAPTAIN JODY K. BLONIEN Questions by the military judge: Q. Literally welcome back, ma'am. I know you from another court-martial. If you would just explain to the counsel involved what that entailed. A. There was a court-martial held here end of March and it was a sexual harassment case. Q. And do you recall how that case concluded, ma'am. A. Yes. It was not guilty.

Q. And that with other counsel involved, not these counsel here, correct?

316 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

317 was--she was reporting in and I was leaving, so ships passing in the night. And she does pull duty at Naval Medical Center San Diego, so I see her from time to time, passing duty over to her or she passes it on to me, whichever the shift or duty. Q. Anything about your prior associations with her which would cause you to hesitate to serve as a member with her of this panel? A. No. There's no association with her other than professional, a few minutes at work and that was that. Q. Based on that limited association, are you confident that she could exercise an equal voice and vote with you and the other panel members even though she's junior to you and you're both nurses? A. I would assume so, yes. Q. Anything about the prior association which would cause you to hesitate to think that she could? A. I really--I really don't know anything about her other than, you know, professional passing reports is all I know about her. MJ: Follow-on questions for the Captain, Lieutenant Commander Messer? TC: No, sir. No questions. MJ: Captain Callahan? IMC: Thank you, Your Honor. Questions by the individual military counsel: Q. Good morning, ma'am.

A. Good morning.

318

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,

319 of our clinic and it was handled with the ship. Q. Yes, ma'am. I believe you also indicated that you knew somebody that whose spouse had committed adultery on them, as well. A. Oh, being a nurse, we hear a lot of stuff, you know, from patients and, yes, I've known of people who had, you know, divorces and situations because of adultery, yes. Q. Is there anybody that you've--friends, family, close acquaintance with that's been the victim of adultery? A. Well, not my personal family, no. IMC: Thank you, ma'am. No further questions, Your Honor. MJ: Lieutenant Commander Messer, follow up? TC: Just a few follow up, Your Honor. Questions by the trial counsel: Q. On the situation with the AT who was charged with adultery and you said it was handled by the wing, what are your thoughts on that? Was--did you think that the wing was appropriate in addressing that type of behavior or do you think it was something better left alone? A. Well, I think it affected good order and discipline under the cruise. I'm not sure how long it went on, how many people knew about it. The member--the male member was married and my AT was not. So I think--I think it causes problems in the work setting with favoritism. I think the male was a pilot and she was an AT. So that would just be my perception. I don't really know what happened.

320

Q. Thank you, ma'am. A. But I think it's good order and discipline. It causes problems in the work center. So it does have to be addressed, especially when you go on cruises. TC: Thank you, ma'am. I have no further questions. MJ: Captain Callahan? IMC: No. Thank you, Your Honor. MJ: Captain, thank you for your responses. You may rejoin the other members. BAILIFF: All rise. [All persons did as directed, and CAPT Blonien withdrew from the courtroom.] MJ: Let the record reflect that Captain Blonien has rejoined the other members. If we could have Commander Grundy, please. [CDR Grundy entered the courtroom and was seated.] MJ: Let the record reflect that Commander Grundy has rejoined the court. All others may be seated. [All persons did as directed.] INDIVIDUAL VOIR DIRE OF COMMANDER KEVIN A. GRUNDY Questions by the military judge: Q. Still on our list, huh, Captain--Commander?

A. Yes, sir, I am. Q. Well, welcome back.

321 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

322 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

323 in Ohio. Q. Anything about that particular association which would cause you to favor the prosecution over the defense in this case? A. No, absolutely not. Q. And I believe you indicated you knew Captain Blonien? A. Yes. I met her at that second court-martial. She was a member of the panel. Q. Anything at all about your brief interaction with her that would cause you to hesitate to serve as a member of this panel? A. No, sir. MJ: Follow-on questions, Lieutenant Commander Messer? Questions by the trial counsel: Q. Sir, good morning. You had indicated that you had served as an investigating officer at one time. Could you please explain. A. I was the investigating officer for a case at Portsmouth Naval Shipyard. It involved basically hazing in a group of master-at- arms that they were--the senior guys were allegedly hazing some of their junior members, newer members. Q. How long ago was that, sir? A. That was 2005. Q. And would your dealings with that case in any way influence your ability to be fair and impartial in this matter here today? A. Absolutely not, no.

TC: Thank you, sir. No questions, sir.

324 MJ: Captain Callahan. IMC: None. Thank you, Your Honor. MJ: Thank you again, Commander, for your responses. You may join the other members. Please do not discuss our questions or those responses with them. BAILIFF: All rise. [All persons did as directed, and CDR Grundy withdrew from the courtroom.] MJ: And if we could have Commander Galvez, please. And let the record reflect that Commander Grundy has rejoined the other members. [CDR Galvez entered the courtroom and was seated.] MJ: Let the record reflect that Commander Galvez has rejoined the court. All others may be seated. INDIVIDUAL VOIR DIRE OF COMMANDER ELIZABETH S. GALVEZ Questions by the military judge: Q. I believe in your questionnaire, Commander, you indicated that you were the CO of MEPS, is that correct? A. Yes, sir. Q. And that you had also convened upwards of 10 or more courts-martials? A. Yes, sir. Q. Was that as CO of MEPS or in a different capacity?

A. TPU San Diego had requested lieutenant commanders and above to help work through their caseload and I volunteered and I worked for

325 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?

326 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.

327

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

328 or not it would impact the command and the military structure different from how it would impact the marriage relationship, and I can separate the two, what's between the two parties, and then if both parties involved in the relationship are within the same command or have an influence one way or another and versus an adultery relationship with a civilian or someone who in no way, shape or form would be related to your working environment. Is that the question you're asking? Q. That's a better question than the one I asked so I think that's where I was going. I think the follow on then would be would you be willing to separate out any personal feelings you had about adultery and just focus solely on the law as I give it to you---- A. Yes, sir. Q. ----and apply it to the facts of this case? A. Yes. MJ: Very good. Follow-on questions for Commander Galvez, Lieutenant Commander Messer? TC: Yes, sir. Questions by the trial counsel: Q. Good morning, ma'am. You indicated you have been an investigating officer before. Would you please briefly talk about that. A. Yes. Actually it was years ago, but I was a--it was an allegation of sexual harassment within the command. This was in '94 at a previous duty station which has now been disestablished. But it

329 was a full investigation that lead to recommended legal proceedings for the--I can't think of--those that were alleged to be guilty. Q. Now, your experience with that matter, has that in any way--do you believe it has in any way--well, will it in any way make you--not make you able to be fair and impartial in this hearing or in this court here today? A. No. Actually, I think it's a benefit because of the experience of being able to talk to different witnesses and be able to understand you remember this, you remember that and trying to get things to--once you try to get the facts to reconcile it into a-- something that you can make a decision on. TC: Thank you, ma'am. Sir, I have no further questions. MJ: Captain Callahan? IMC: Thank you, Your Honor. Questions by the individual military counsel: Q. Good morning, ma'am. A. Good morning. Q. Ma'am, I believe you indicated that you've given nonjudicial punishment before? A. Yes. Q. Approximately how many times? A. Just once or twice.

Q. Did either of those cases involve adultery, false official statements or orders violations?

330 A. No. Q. And when you served as a summary court-martial officer, what was the approximate ratio of convicted cases to acquitted cases? A. It's been a while. It's been about four or five years since I was doing that regularly. I'd have to say it was 60/40, 50/50. It was not strong one way or the other. IMC: Yes, ma'am. Thank you, ma'am. Thank you, Your Honor. MJ: Lieutenant Commander Messer? TC: No follow up, sir. MJ: Very well. Thank you, Commander, for your responses. Please do not discuss them with the other members. You may rejoin them at this time. BAILIFF: All rise. [All persons did as directed, and CDR Galvez withdrew from the courtroom.] MJ: And if we could have Commander Tucker, please. Let the record reflect that Commander Galvez has rejoined the other court members. [CDR Tucker entered the courtroom and was seated.] MJ: Let the record reflect that Commander Tucker has rejoined the court. All others, please be seated. [All persons did as directed.]

[END OF PAGE]

331 INDIVIDUAL VOIR DIRE OF COMMANDER JOHN R. TUCKER Questions by the military judge: Q. Commander, from your questionnaire I understand that you graduated and attended the U.S. Navy Academy; is that correct? A. That's correct. Q. During your time there at the academy, did you have any courses concerning military justice or legal matters? A. I did. Q. Is there anything that stands out in your mind about the content of those courses? A. Twenty years later, no, sir. Q. What is your present assignment, Commander? What do you do? What's your---- A. I'm an advanced--what do they call it--command and staff instructor at TACTRAGRUPAC. Q. Do you have any interaction with the Naval Coastal Warfare Group here? A. Not formally. Q. I believe you've indicated you have imposed NJP in the past; is that correct? A. I have. Q. In what capacity? You were a CO or acting? A. I was the officer in charge of a DET.

332 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.

333 Q. Any strong feelings pro defense, anti defense, pro prosecution, anti prosecution based on that experience? A. No. I think I'm pretty fair minded on that issue. Q. I believe you indicated, with regard to adultery, you may hold some religious views concerning that issue? A. I don't see that my views are highly unusual. I--you know, I go to church and, you know, I'm a Bible believing Christian. So that in itself is--should explain my point of view on the matter. Q. Obviously the teachings of the church may be somewhat different than the legal requirements or the law concerning adultery. Would you be able to separate the two and---- A. Absolutely, yes. Q. How would you describe your involvement with the church? A. Well, I'm not a member. I attend First Presbyterian Church downtown fairly regularly, participate in a prayer group on Tuesday morning. MJ: Thank you, Commander. Follow-on questions, Lieutenant Commander Messer? TC: Yes, sir. Questions by the trial counsel: Q. Sir, you indicated that you've been an investigating officer in the past. Could you please elaborate on that. A. Well, I've done a JAGMAN investigation on a--when I was on the USS INDEPENDENCE, I think it was the INDEPENDENCE, where an investigation where line of duty, misconduct--not misconduct--a line

334 of duty investigation on an accident that had occurred on board the ship. A Sailor had gotten injured. Q. How long ago was---- A. I was also---- Q. I'm sorry, sir. How long ago was that? A. Oh, that would have been like '98, late 1998. Then I was a safety officer--squadron safety officer and I conducted at least four, well, mishap investigations. Q. Have you ever conducted any criminal investigations? A. I do not believe so. No, I have not. TC: Thank you, sir. I have no further questions. MJ: Captain Callahan? IMC: Thank you, Your Honor. Questions by the individual military counsel: Q. Good morning, sir. A. Good morning. Q. Sir, obviously the Bible has a lot to say about various punishments and there are certainly passages addressing adultery, going all the way back to Leviticus, which deals with stoning for adultery, to the New Testament where Christ addressed the Pharisees when they brought a woman taken in adultery. Are there any Biblical passages or teachings from the Presbyterian Church that would affect the punishment that you would give in this case if you--if the members found Lieutenant Commander Penland guilty of adultery?

335 A. Well, the question that was asked, the original question that was asked me was do I hold a religious conviction about adultery. Q. Yes, sir. A. So answering that question was an affirmative. Now, as to my ability to discern the difference between them, what my religious teaching is and what the secular or the legal requirements are, I don't have a problem making that distinction and staying within the legal requirements of the law. Q. Yes, sir. A. Did that answer your question? IMC: That does. Thank you, sir. Thank you, Your Honor. MJ: Follow-on questions, Lieutenant Commander Messer? TC: No, sir. MJ: Very well. Commander, thank you for your answers. Please do not discuss them or the questions with the members. You may rejoin them at this time. BAILIFF: All rise. [All persons did as directed, and CDR Tucker withdrew from the courtroom.] MJ: And let the record reflect that Commander Tucker has rejoined the other members. If we could have Commander Good, please.

[CDR Good entered the courtroom and was seated.]

336 MJ: Let the record reflect that Commander Good has rejoined the court. All others, please be seated. [All persons did as directed.] INDIVIDUAL VOIR DIRE OF COMMANDER CHARLES P. GOOD Questions by the military judge: Q. Commander, you're the skipper of USS KIDD; is that correct? A. That's correct, sir. Q. Thank you for taking the time to join us today. I gather from your questionnaire that you're also a graduate of the Naval Academy? A. That's correct, sir. Q. During your time there, you, I gather, also took part in or had a requirement for legal courses or military justice matter courses? A. Naval law, yes, sir, was part of the curriculum back then. Q. Anything that stands out from those courses in your mind concerning criminal law matters, military justice? A. I've had plenty of exposure to that since being an officer, sir. Q. As skipper of the KIDD, have you had to impose nonjudicial punishment? A. I have, sir, many times. Q. Any of the instances involve adultery or charges similar to those before the court today? A. No, sir.

337 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.

338 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.

339 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

340 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

341 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

342 judicial matters, we're supposed to do a good job with that, as well, as part of our, you know, faith. Q. I also believe you indicated that with regard to having read a news account involving adultery. What do you recall reading? A. It was Admiral Stufflebeam which has been in the news quite prominently. Although that's obviously a very old case, it's been kind of resurrected, but it's certainly been in the news. Q. Do you have any strong feelings about how that situation was handled? A. I did not know Admiral Stufflebeam, sir. It's just obviously very shocking and disturbing when somebody is in that high of a position gets impacted by it, but again it was a rather old case that had been dredged up. MJ: Follow-on questions for Commander Good, Lieutenant Commander Messer? Questions by the trial counsel: Q. Sir, during the questioning, you've indicated you've been an investigating officer before. Could you please elaborate. A. Yes, sir. I have not been an investigating officer for a court-martial, but I was appointed as an investigative officer and per the JAGMAN for several different things ranging from, you know, security violations to some misconduct that happened in administrative support in Bahrain, various and sundry things, never really criminal in nature, more, you know, conduct related or again security.

343 Q. Do you feel any of those investigations would in any way influence your ability to be fair and impartial in this matter? A. No, sir. If anything, the reverse. TC: Thank you. I have no further questions. MJ: Captain Callahan? IMC: Thank you, Your Honor. Questions by the individual military counsel: Q. Good morning, sir. Sir, is there anything from either your experience with beliefs as an Evangelical Christian or from the experience that your friend has gone through with the adultery that would require you to give a certain sentence, if sentencing became necessary in this case? A. No. IMC: Thank you, sir. Nothing further, Your Honor. MJ: Lieutenant Commander Messer, anything further? TC: No follow up, sir. MJ: Thank you, Commander Good, for your responses; please do not discuss them or our questions with you. You may rejoin the other members at this time. BAILIFF: All rise. [All persons did as directed, and CDR Good withdrew from the courtroom.] MJ: And, Bailiff, if we could have Commander Kelsch join our court. And let the record reflect that Commander Good has departed from the courtroom.

344 [CDR Kelsch entered the courtroom and was seated.] MJ: Let the record reflect that Commander Kelsch has rejoined the court. All others, please be seated. [All persons did as directed.] INDIVIDUAL VOIR DIRE OF COMMANDER TONJA L. KELSCH Questions by the military judge: Q. Commander, I believe that you indicated you know Captain Blonien. A. Captain Blonien. Q. Blonien. A. Yes, sir. Q. How do you know her? A. I worked with her in Guam a little bit. She was overlapped a couple of months and she was leaving, I was coming in, and then I followed her a little bit in the job that she had done over there in Guam. And then I also had worked with her a little bit here at Naval Medical Center. She is one of the nursing supervisors and I do duty as a nursing supervisor, so purely professional. Q. Anything at all about your interaction with her which would cause you to hesitate to serve as a member of this panel? A. No, sir. Q. Even though you're junior to Captain Blonien, would you feel able to exercise an equal voice and vote with her?

A. Yes, sir.

345 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.

346 Q. Found not guilty? A. Yes. Q. Okay. Anything about your service in that court-martial that would cause you to hesitate to serve as a member in this one? A. No, sir. Q. Would you be willing to set aside any instructions that you received from the judge in that court-martial and base your decision in this case solely on the instructions and the evidence that's developed in this court-martial? A. Yes, sir. Q. Now, with regard to acquaintances, you indicated that, I guess, their personal situation involved maybe an adultery. Do you have any strong feelings about how that impacted them or how it was handled? A. No, sir. Q. No strong feelings? A. No. I think they ended up both being happy. Q. So it worked out for the best? A. Yes. Q. Okay. Do you have a nursing specialty, Commander? A. Meds or medical surgical nursing and ambulatory care. MJ: Follow-on questions, Lieutenant Commander Messer? TC: Yes, sir.

347 Questions by the trial counsel: Q. Ma'am, briefly, do you remember--can you give us some more specifics about that court-martial that you sat on two to three months ago. I guess the first question, where was it located? Was it here in---- A. Right here in this room. Q. And was one of the members that you served with on that court-martial panel Commander Doud? A. I do not recall. No, sir. Q. No? A. I do know that it was not because I was the only commander on board. Everybody else was junior to me. Q. Other than adultery, what other--what were the charges against the accused in that case? A. Fraternization and rape. Q. Other than that--that court-martial, have you sat as a member on any others? A. No. TC: Thank you, ma'am. I have no further questions. MJ: Captain Callahan? IMC: Thank you, Your Honor. Questions by the individual military counsel: Q. Good morning, ma'am.

A. Good morning.

348 Q. Ma'am, you look somewhat familiar. Have I actually--I've been at Balboa for shoulder processes now for, my goodness, about three or four years that have included multiple surgeries. Have you seen me over at Balboa by any chance? A. Not that I'm aware of, not--certainly not that I---- Q. Just wanted to make sure you didn't see me crying or baby- like after surgery or something. MJ: You were probably unconscious, Captain. I don't expect that's going to be repeated here. Q. And then, ma'am, also I believe you indicated you served as an investigating officer before. A. Only in a medical/legal procedure that went wrong and I had to do the investigation for that. IMC: Thank you, ma'am. No further questions. Thank you, Your Honor. MJ: Follow up, Lieutenant Commander Messer? TC: No, sir. MJ: Commander, thank you for your responses. Please do not discuss them or the questions. You may rejoin the other members at this time. BAILIFF: All rise. [All persons did as directed, and CDR Kelsch withdrew from the courtroom.]

MJ: And let the record reflect that Commander Kelsch has rejoined the other members.

349 Please be seated. [All persons did as directed.] MJ: Counsel desire to recall any other members for further questioning? Lieutenant Commander Messer? TC: No, sir. MJ: Captain Callahan? IMC: No. Thank you, Your Honor. MJ: Very well. We'll take a brief recess here so you can contemplate challenges, which we will take up when you return. If we could reassemble at 20 minutes after the hour. Court stands in recess. [The session recessed at 1109 hours, 21 May 2008.] [The session was called to order at 1129 hours, 21 May 2008.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, except the members who remain on recess. Does the prosecution have any challenges for cause? TC: Prosecution does not, sir. MJ: Very well. Does the Defense have any challenges for cause? IMC: No, Your Honor. MJ: Does the prosecution have any peremptory challenge it would like to exercise?

TC: Yes, sir. The Government would exercise its peremptory on Captain Blonien.

350 MJ: Very well. Does the Defense desire to be heard as to the exercise of the Government's peremptory challenge? IMC: No, Your Honor. MJ: Very well. Captain Blonien will be excused. Does the Defense have a peremptory challenge it would like to exercise? IMC: Yes, sir. The Defense will like to use a peremptory challenge on Captain Stuyvesant. MJ: Very well. Does the Government care to be heard as to the exercise of the Defense's peremptory challenge? TC: No, sir. MJ: Very well. It appears that we have a quorum. Excellent. When I invite the members to rejoin us, we will excuse those members who have been excused and then I'll place the members in a lunch recess. During that recess, hopefully counsel will be able to interview with Lieutenant JG Wiggan. For planning purposes at this point, an hour and a half for lunch, do you think that's enough or are you going to need more time with Lieutenant JG Wiggan than that? Commander Messer? TC: Sir, I only anticipate needing about 15 minutes to just get a general idea of what he's going to say and then I'll do a more exhaustive interview this evening. MJ: Captain Callahan?

IMC: Sir, if we could have about two hours actually, sir, I think that would make it a lot easier, because obviously this--

351 depending on what he says may require entire reworking of a Defense opening and theme entirety even. MJ: Okay. We'll do that. Anything else we need to discuss outside the members' presence before they rejoin us? TC: No, sir. IMC: No, Your Honor. MJ: Very well. This 39(a) session is concluded. Bailiff, please ask the members to rejoin our court if they are all assembled. [The Article 39(a) session concluded at 1131 hours, 21 May 2008.] [END OF PAGE]

352 [The court-martial was called to order at 1132 hours, 21 May 2008.] MJ: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Captain Stuyvesant and Captain Blonien, thank you for your service. You are excused. You may depart from the courtroom. All rise. BAILIFF: All rise. [All persons did as directed; CAPT Stuyvesant and CAPT Blonien, the challenged members, withdrew from the courtroom.] MJ: Please be seated. [All persons did as directed.] MJ: Members, at this point it is necessary for me to take an extended lunch recess to allow counsel to make some further preparations for you this afternoon. Again, subject to my standard instructions to not discuss this case amongst yourselves or with anyone else, do not consult any sources, and so on and so forth, those standard instructions, in a moment you may depart on lunch recess. I

353 would ask that you reassemble at 1330. For planning purposes, I hope to be able to press on this evening until about 1800, 1830 hours. So you might want to have either a large lunch or bring some snacks for the afternoon session. When you return, counsel will be given an opportunity to present their opening statements to you. Those typically take 15 to 30 minutes or so apiece, followed by the presentation of the prosecution's evidence. Again for planning purposes, 1800, 1830 hours today, and we'll revisit the schedule for tomorrow once we decide how far we get this afternoon. So subject to my standard instructions, members, you may depart on lunch. If you would please reassemble 1330 hours. BAILIFF: All rise. [All persons did as directed.] MJ: Members may depart on lunch recess. And during the recess, we're going to reconfigure your seating, so don't be too surprised when that happens, members. The members may depart. [The members withdrew from the courtroom. MJ: Court stands in recess. Carry on. [The court-martial recessed at 1134 hours, 21 May 2008.] [END OF PAGE]

354 [The Article 39(a) session was called to order at 1330 hours, 21 May 2008.] MJ: The 39(a) session is called to order. Let the record reflect that all parties present prior to the lunch recess are again present before the Court at this time, except for the members who remain at recess in the deliberation room. During the recess, counsel brought to the Court's attention a concern from the accused that one of the spectators, Lieutenant Commander Marshall, should be excluded from observing the proceedings. Captain Callahan, if you would please restate the position that you are raising here. IMC: Yes, sir. Sir, Lieutenant Commander Penland's position is that Lieutenant Commander Marshall has been involved with acts of reprisal and illegally influencing people, witnesses, command, in this case. She is the subject of numerous complaints that Lieutenant Commander Penland has raised and she feels that she should not be allowed to sit in here and observe the proceedings in here. She has concerns about her trying to use what she sees in here to then influence maybe further witnesses down the line. In regards to the Government's concerns, personally I've never seen an SJA sit in before; I don't think an SJA needs--you know, that's neither here or there as to whether or not it's allowed, but it's certainly not something that's required or a duty for an SJA to sit in so they can go back and report to the command. Certainly the command is more than capable of calling the trial counsel, Commander

355 Messer, if they need any updates or anything on the trial, sir. MJ: Lieutenant Commander Messer, the Government's position? TC: Sir, this is a public proceeding. Absent any action by Lieutenant Commander Marshall that would deem her inappropriate to be in this court or acting out or doing something that would be improper, she should be allowed to view it just like anyone else. These are-- this is a matter of public record that occurs in this courtroom. Anyone should be allowed to view it, and this notion that she'll somehow take the information that comes out of this court-martial and use it against Lieutenant Commander Penland is absurd. So absent some showing that Lieutenant Commander Marshall is trying to disrupt the proceedings with her presence, I would say she should be allowed, like anyone else should be allowed, to be in this courtroom. MJ: Captain Callahan, anything further? IMC: Sir, Commander Penland feels that Commander Marshall has gone back in the past after other court proceedings, after other--for instance, the Article 32 hearing and tried to influence or change people's perceptions or testimonies based on what she observed in the courtroom. That is all I would have to add, sir. MJ: Are there witnesses from the command that are on the list here, prospective witness list? IMC: There are, sir. There's Commander Masi, Captain Sturges who's the former commanding officer of the command, as well. Chief Zogaib, as well, I believe, the Government's first witness. Sir,

356 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,

357 ethical basis to explore that with any potential witness. However, as the Government's indicated, this is a public trial and, absent some specific evidence of witness tampering, obstruction of justice or other improper conduct, the Court's not inclined to prohibit any particular spectator from viewing these proceedings. So the concern is noted and again, if there is some more substance to the concern, please ask to revisit it at an appropriate time. IMC: Understood, Your Honor. MJ: Other matters we need to address outside the members' presence? TC: No, sir. IMC: No, Your Honor. MJ: Very well. This 39(a) session is concluded. Bailiff, if you would see if our members have reassembled after lunch. BAILIFF: Yes, sir. [Verifying members' presence.] Your Honor, all the members are present. MJ: Excellent. Please ask the members to rejoin us. BAILIFF: Aye, sir. [The Article 39(a) session concluded at 1335 hours, 21 May 2008.] [END OF PAGE]

358 [The court-martial was called to order at 1335 hours, 21 May 2008.] MJ: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. Captain Booker, you have been seated to the left of our senior member. Members, please take your seats. [The members did as directed.] MJ: All others, please be seated. [All persons did as directed.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the lunch recess are present before the Court at this time, to include all of our members. Members, I hope you had a refreshing lunch. I have some additional preliminary instructions for you before we receive the opening statements of counsel. First of all, when a witness is called, the counsel who calls that witness questions the witness first and then the opposing counsel will also be given an opportunity to ask questions. In the event counsel make an objection to a question or some item of evidence and I sustain the objection, then you must completely disregard the question or item of evidence. The alternative is that I might overrule the objection, in which case you may properly consider the question or that item of evidence.

359 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

360 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.

361 Also, I will also need to hold sessions outside of your presence with counsel; those are called "39(a) sessions." Those are sessions at which I have to resolve either objections or other matters that are within my responsibility as the military judge. Sometimes the duration of those sessions are extended because new issues arise or there are other matters that must be addressed outside your presence. I will try to estimate as best I can the time for any recesses or periods that are outside your time here in court, but again these sessions may be extended. So I would appreciate your patience consistent with the administration of justice in this case. If there are any questions over these additional preliminary instructions, please raise your hands. Negative response from all panel members. Members, in a moment you are about to hear the opening statements of counsel. You are instructed that the opening statements of counsel are not the evidence of this case. The opening statements are designed to assist you in understanding what evidence it is that counsel anticipates that will be offered to you. Lieutenant Commander Messer, you may present your opening statement at this time. TC: May I enter the well, sir? MJ: You may. And, members, you will note hopefully your computer screens coming to life. If your screen is now activated, if you would please raise your hand.

362 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

363 here to testify at trial, along with Lieutenant JG Wiggan. I've prepared for you a time line and I ask that you follow along as I go through the steps that led to this court-martial here today. Lieutenant JG Wiggan and NC1 Lewis-Wiggan--and I'm going to refer to NC1 Kimberly Lewis-Wiggan as NC1 just because that's her--was her rank at the time of the charges. NC1 and Lieutenant JG Wiggan were married in 2001, March of 2001. In 2006, beginning in March, NC1 Lewis-Wiggan deployed with the MOBILE BAY. She'll tell you on the stand that while she was deployed, her husband began a romantic relationship with Lieutenant Commander Penland. When she returned from deployment in August of 2006, things were not right with her husband. They met in Hawaii for a romantic vacation. Things did not go well. She ended up staying on by herself. The husband flew home alone. When she got back to San Diego, he left. She stayed in the house herself. They stayed apart for about a month and a half. Things were not going well. And then in September---- [Fire alarm sounds.] MJ: Court stands in recess. Members, please cover your notes. BAILIFF: All rise. [All persons did as directed.]

MJ: And if we could depart the building. [The court-martial recessed at 1344 hours, 21 May 2008.]

364 [The court-martial was called to order at 1403 hours, 21 May 2008.] MJ: Bailiff, if you would please ask the members to join us. BAILIFF: Yes, sir. MJ: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: Court is called back to order. Let all parties--let the record reflect that all parties present prior to the recess for the fire alarm are again present before the Court at this time, to include all our members. All others, please be seated. [All persons did as directed.] MJ: Lieutenant Commander Messer, if you would please continue with your opening statement. TC: May I enter the well, sir? MJ: You certainly may. TC: You have before you a time line and I was describing for you that Lieutenant JG Wiggan and NC1 Lewis-Wiggan had decided to separate as of the 1st of August. Now, in mid September 2006 they reconciled. Lieutenant JG Wiggan moves back in with NC1 Lewis-Wiggan, and then a strange thing happens. Approximately a week later or a few days later NC1 Lewis-

Wiggan receives a phone call at work, on board USS MOBILE BAY, and the individual on the phone identifies themselves as Lieutenant Commander

365 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

366 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

367 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

368 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.

369 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.

370 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.

371 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.

372 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

373 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

374 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.

375 MJ: Bailiff, if you would please call PS1 Crawford on behalf of the court. [The bailiff retrieved the witness.] PERSONNEL SPECIALIST FIRST CLASS JEFFREY CRAWFORD, U.S. Navy, was called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. For the record, could you please state your name, spelling your last. A. PS1 Jeffrey Crawford, C-R-A-W-F-O-R-D. Q. Petty Officer Crawford, what is your current duty station? A. PSD, Naval Station San Diego. Q. And could you please briefly describe for the members your duties. A. My daily duties consist basically of tracking military personnel's records, pay records, and updating, as needed. Q. Now, do you know Lieutenant Commander Penland, the accused in this case? A. No, sir, I don't. Q. Did you have the opportunity to review her records in preparation for trial today? A. Yes, sir, I did.

376 Q. And what did those records tell you? A. It stated her date of enlistment. It also stated because she was prior enlisted when she converted to officer. Q. Okay. What was her commission date? A. I don't have that document in front of me, sir. Q. Would it help if--do you--would it help if I refreshed your recollection? A. Yes, sir. TC: May I approach the witness, sir? MJ: You may. TC: I'm showing opposing counsel what is the LOPR printout for Lieutenant Commander Penland. MJ: Do you desire to have that marked as an exhibit, Counselor? TC: Yes, sir. I'd have this marked as the next appellate exhibit in order. MJ: Very well. [The court reporter marked the document as AE XXXVIII.] Q. PS1, I am handing you what is the LOPR for Lieutenant Commander Penland [handing AE XXXVIII to the witness]. Take a moment to read it through. When you're done looking through it, just please look up at me and I will retrieve the exhibit. A. [Reviewing AE XXXVIII.] TC: I'm retrieving what has been marked as Appellate Exhibit

XXXVIII. MJ: Very well.

377 Q. Do you--what date was Lieutenant Commander Penland commissioned? A. August 1st of '97. Q. And has she been on active duty continuously since that time? A. Yes, sir, she has. Q. So the allegations in this case extend from September 2006 to roughly March of 2007. Was she on active duty during that time based on your reading of the LOPR? A. Yes, sir, she was. Q. And she's still on active duty as of today, is that correct? A. Yes, sir. TC: Thank you, PS1. I have no further questions. MJ: Captain Callahan, questions for the witness? IMC: No. Thank you, Your Honor. EXAMINATION BY THE COURT-MARTIAL Questions by the military judge: Q. PS1, can you explain what the "LOPR" is. A. LOPG, basically it's a link to DFAS. It tracks all pay issues and other military issues with every service member, enlisted and officer, sir. Q. Is it LOPT?

A. LOPG.

378 MJ: Oh, G. Follow-on questions in light of those, Commander Messer? TC: No, sir. MJ: Captain Callahan? IMC: No. Thank you, Your Honor. MJ: Questions from our members? Negative response from all panel members. [The witness was permanently excused and withdrew from the courtroom.] TC: Sir, at this time the Government would call SKC Zogaib, Chief Zogaib to the stand. MJ: Very well. Bailiff, if you would please call Chief Zogaib. [The bailiff retrieved the witness.] STOREKEEPER CHIEF STACY L. ZOGAIB, U.S. Navy, was called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. For the record could you please state your full name, spelling your last. A. SKC Stacy Lynn Zogaib, and it's Z-O-G-A-I-B. Q. And what's your current duty station? A. MESG Group ONE. Q. And what is your primary duties? Tell the members what your primary duties are.

A. I'm the Supply Department leading chief petty officer, the LCPO for N4.

379 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.

380 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.

381 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.

382 MJ: Objection from the Defense? IMC: Yes, sir. Objection to authenticity. She's not the custodian of these records; Verizon is. MJ: Lieutenant Commander Messer? TC: Sir, under 902, Section 11, this is--we've attached to these records a certificate of authentication and these self- authenticating records. MJ: Captain Callahan, have you had an opportunity to review the certificate? IMC: If I may have a moment, Your Honor. MJ: Certainly. IMC: [Reviewing PE 3 for ID.] Withdraw the objection, sir. MJ: Very well. Any other objection to the admission of Prosecution Exhibit 3 for identification? IMC: No, sir. MJ: There being no further objection, Prosecution Exhibit 3 for identification is now admitted into evidence. The words "for identification" will be stricken, and you may publish copies of the exhibit to the members as you desire. TC: Aye, sir. Thank you. I'm be returning the exhibit to the court reporter at this time. MJ: Very well.

383 Q. Just a few follow-up questions, Chief. To your knowledge, was the phone number that was in the records assigned to anyone else other than Lieutenant Commander Penland during that time period? A. No, sir. TC: Thank you. I have no further questions. MJ: Captain Callahan? IMC: Briefly, sir. Thank you. CROSS-EXAMINATION Questions by the individual military counsel: Q. Good afternoon, Chief. A. Aye, sir. Q. Chief, I see these phone calls appear to have been printed out off of an Internet---- A. Yes, sir. Q. ----account based on the bottom. Did you print them out? A. We--yes, you can. Q. But the ones that were actually brought here in court have been printed out. Are these ones that you printed out or are these ones that you were sent from Verizon? A. They would have been printed out, I believe. Q. So were you the one that printed them out? A. Yes. I'm sorry I hesitate because I was requested to provide them and so they were provided.

Q. Did Commander Marshall also print any of these out? A. I can't recall with accuracy.

384 Q. After you printed these out, did you send these to Verizon to verify them? A. No, sir. IMC: Thank you. No further questions. MJ: Lieutenant Commander Messer? REDIRECT EXAMINATION Questions by the trial counsel: Q. Chief, just to clarify, is your understanding that the-- please tell for the members how these records were procured for this court-martial. A. I was requested--I requested them from Verizon and they were sent directly to Legal--or they were sent to me, but we funded the document, paid for them, and they were provided. TC: Sir, may I approach and retrieve Prosecution Exhibit 3? WIT: I'm sorry. MJ: You may. WIT: It's been a while. Q. If you could, I'm showing you Prosecution Exhibit 3 [handing PE 3 to the witness], especially--specifically the certificate of authenticity there. Is there any question in your mind that that certificate of authenticity has been forged or corrupted in any way? A. No, sir.

385 Q. And is there any question in your mind that those records before you there are accurate records that accurately reflect the use of that phone during that period? A. They're accurate records, sir. TC: Thank you. I have no further questions. I'm approaching to retrieve the Exhibit 3. MJ: Very well. TC: Returning it to the court reporter. MJ: Captain Callahan, anything further for this witness? IMC: Please, Your Honor. MJ: You may. RECROSS-EXAMINATION Questions by the individual military counsel: Q. Chief, that affidavit states that it came along with records enclosed that are true and accurate copies of the records maintained by Verizon. Did you receive this affidavit? A. No, sir. I request--no, sir, I did not. Q. And you printed the cell phone records out separate from the affidavit, correct? A. Yes, sir. IMC: Thank you. No further questions. TC: Nothing further from the Government, sir. MJ: Questions from our members? Negative response from all panel members.

386 [The witness was duly warned, temporarily excused, and withdrew from the courtroom.] TC: Sir, at this time the Government calls Mr. Brian Duffy to the stand. MJ: Very well. Bailiff, if you would please call the witness on behalf of the court. [The bailiff retrieved the witness.] BRIAN DUFFY, civilian, was called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Mr. Duffy, for the record, could you please state your full name, spelling your last. A. Brian, B-R-I-A-N, Duffy, D-U-F-F-Y. Q. And, Mr. Duffy, where are you currently employed? A. I'm employed here at the Region Legal Service Office in the prosecution section as the trial paralegal. Q. And who do you work for? A. I work for you, sir. Q. And what--could you please explain to the members what your duties are. A. They are various and sundry, but amongst them is being instrumental in the processing of subpoenas, arranging to draft a subpoena up, send it out and then receive the records back in response to the subpoena.

387 Q. Were there any subpoenas for phone records issued in this case? A. Yes. There was---- Q. What subpoenas? A. First there was a subpoena to Cox Communications for phone number (619) 271-7954. Q. And what number was that? A. That was Commander Penland's home phone I was told. Q. And did you get a response to that subpoena that was issued by the office? A. I did. Q. What response did you get? A. It covered the time period that we asked for. Q. Which was? A. 22 December '06 to 27 March '07. Q. Why were records before that time not requested, given the allegations in this case, do you know? IMC: Objection. Relevance. MJ: Commander Messer? TC: Well, sir, the allegations before the court are beginning in September the adultery is alleged to have been charged--or alleged to have began in September of '06. The phone records were not obtained until--or for the period starting in December. I think it's a relative question or relevant question.

388 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.

389 Q. And what does that document contain? A. It contains records of calls made from Commander Penland's home phone number. Q. And do you--is that document in the same condition and accuracy as it was when you received it from Cox Communications? A. May I have one moment? Q. Yes. A. [Examining PE 5 for ID.] Yes, it is. Q. And if you could please look on the second to last page of the document and then please explain for the members what that is. A. It's a certification statement from the subpoena people at Cox Communications who---- Q. And what's the purpose of that certificate? A. It's their authorization that the documents here are actual records of theirs. Q. And you're confident here today that the documents that you're looking at before you are the very same documents you received from Cox---- A. Yes, I am. Q. ----in response to the subpoena? A. Yes, I am. TC: Sir, at this time I'd ask that Prosecution Exhibit 5 for identification be entered into evidence and the words "for identification" be deleted. MJ: Objection from the Defense?

390 IMC: No, Your Honor. Q. Now, Mr. Duffy, I want to talk to you a little bit---- MJ: One minute, Counselor. Prosecution Exhibit 5 will be received into evidence. The words "for identification" will be stricken, and you may publish the exhibit at an appropriate time. TC: Thank you, sir. Q. Mr. Duffy, after receiving these records, did you go through them and review them? A. I did. I went through there looking for matches to the USS PRINCETON's phone number. Q. How did you know that phone number? A. I think I got it off of the roster. Q. And what exact phone number to the USS PRINCETON was it? Was it to a specific location? A. It was to 556-3905, I think it is. Q. Which correlates to what? A. That's the PRINCETON's. Where on the PRINCETON I don't--I can't say for sure. Maybe their quarterdeck or something; I don't know. Q. And after reviewing these phone records, how many calls did you find from Lieutenant Commander Penland's home phone number to the USS PRINCETON?

A. One hundred and forty.

391 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].

392 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.

393 Q. And you've testified that those records you received are in response to a subpoena. I'd like you to look on the first page there. What is that? A. This--as in the previous documents, this is a certification from the subpoena response people at Sprint certifying that these records are what they purport to be. Q. And based on your knowledge of having received those documents from Sprint, are those documents the same documents that you received at the time the subpoena was answered? A. Yes. TC: Sir, at this time I would request that Prosecution Exhibit 18 for identification be entered into evidence and the words "for identification" be deleted. MJ: Objection from the Defense? IMC: No, Your Honor. MJ: There being no objection, Prosecution Exhibit 18 is now admitted into evidence and the words "for identification" will be stricken by the court reporter. You may publish the document at an appropriate time. TC: Thank you, sir. Q. Now, Mr. Duffy, did you review that document after it was received from Sprint? A. I did.

394 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.

395 Q. And what did you find out? A. That there is no final divorce decree in the file. Q. What was in the file? A. There was an agreement to bifurcate the trial, that is, to split the issue of the divorce and let that go forward without any further arguing about it and split the issue off from the arguments over dividing up property. Q. So, according to your investigation, the Wiggans are still married as of now? A. Yes. I confirmed that with the clerk who gave me the file. TC: Thank you, Mr. Duffy. I have no further questions. MJ: Captain Callahan? CROSS-EXAMINATION Questions by the individual military counsel: Q. Mr. Duffy, are you familiar with the bifurcation process of divorce proceedings in California? A. No. That's why I asked the clerk to confirm it. Q. Are you familiar with a proceeding by which a divorce decree is finalized, however, the case maintains with the court because the court is still dividing the property? A. That's, I believe, what we're talking about here. Q. Correct. That's a bifurcation. Are you familiar with the practice in the State of

California in the instance were two couples [sic] are married dealing with real estate where the case is bifurcated, the court divorces

396 them, they are officially divorced, but until the real estate is sold, the case remains open in the courthouse because the court still has to distribute the assets or distribute the liability from the sale of that real estate? A. That's not what the personnel at the court told me. Q. Are you familiar with that process, yes or no? A. No. No, I don't---- Q. You're not familiar with that process? A. I don't do California law. Q. And you are certain that you were told by the court that they are still legally married? A. I am certain that they said that there is no final divorce decree in there. Q. And who is "they"? A. Oh, the people--the Family Superior Court on Sixth Avenue. Q. But you personally have no personal knowledge to whether or not the divorce decree has been issued by a court in this case, do you? A. I personally know that it's not in the file because I looked for a document by that name. I have experience with legal documents just reading them generally. Q. So you are certain that they are still legally married? A. I'm certain there's no final divorce decree in the file.

IMC: Thank you. MJ: Commander Messer?

397 TC: No follow up, sir. MJ: Questions from our witness--for our witness from the members? Negative response from all panel members. [The witness was duly warned, temporarily excused and withdrew from the courtroom.] MJ: Further evidence from the prosecution on the merits of this case? TC: Sir, at this time the Government would ask for a brief recess in place so that--a brief five-minute recess, sir. MJ: Well, it might be an appropriate time to take a recess, nonetheless. Members, if you would please cover your notes. BAILIFF: All rise. [All persons did as directed.] MJ: Subject to my standard instructions, you may depart on a recess. Please reassemble at 1500 hours. Court stands in recess. The members may depart at this time. [The members withdrew from the courtroom.] MJ: Court stands in recess. Carry on, please. [The court-martial recessed at 1449 hours, 21 May 2008.] [The court-martial was called to order at 1504 hours, 21 May 2008.] MJ: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them.

[The members did as directed.]

398 MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Further evidence from the prosecution on the merits of its case? TC: Yes, sir. At this time the Government would call Commander Doud to the stand. MJ: Very well. Bailiff, please call Commander Doud on behalf of the court. [The bailiff retrieved the witness.] COMMANDER BRENDON X. DOUD, U.S. Naval Reserve, was called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Commander, for the record, could you please state your full name, spelling your last. A. Yes. It's Commander Brendon Xavier Doud. Last name is D-O-U-D. Q. Commander Doud, where are you currently stationed? A. Currently at MESG ONE, Maritime Expeditionary Security

Group ONE.

399 Q. And you're currently on active duty? A. No, I'm not actually. Q. What is your status? A. I'm active Reservist. Q. How long have you been in the Navy? A. Twenty-two plus years. Q. Would you briefly tell the members a little bit about your career. A. Sure. My commissioning source was the Naval Academy, class of 1985. I did eight and a half active, mostly in the operations world, surface warfare by trade, DCA COMO, and so eight and a half active and done a number of recalls and mobilizations, support active, a number of tours at Third Fleet, served as the security officer at Naval Station and worked in the Force Protection Directorate and OPS and planning world at Third Fleet, as well. Q. Commander, how long have you been at Navy Coastal Warfare Group ONE? A. Since June of 2006. Q. Do you know the accused in this case, Lieutenant Commander Penland? A. I do. Q. How do you know her? A. As an acquaintance obviously at work, through a work relationship I was familiar with her at MESG ONE, Naval Coastal Warfare Group ONE.

400 Q. Were you ever assigned as an investigator while attached to Navy Coastal Warfare Group ONE? A. I was. Q. And for what matter were you assigned as an investigator? A. I was assigned---- IMC: Objection. Relevance. MJ: Lieutenant Commander Messer? TC: Sir, this is directly relevant to the testimony. He's going to testify about his--the results of his investigation into Lieutenant Commander Penland's case. I'm just establishing the foundation. IMC: The results of his investigation are irrelevant, sir, at this court-martial. The prosecution has the opportunity to present the evidence. The members will determine their own determination as to whether my client is guilty or innocent. TC: Sir, I haven't asked the witness the question what were the results of his investigation. I'm going to ask him about what he discovered in the course of his investigation, who he talked to, what types of evidence he uncovered, things of that nature. MJ: How would that not be hearsay? TC: Well, sir, he's not talking about out-of-court statements. He's going to talk about people, things, giving overviews to the members as far as what he did in the course of his investigation. I would like a chance to go forward with this witness and then we can address any hearsay that comes up at the time.

401 MJ: Members, please cover your notes. Subject to my standard instructions, if you would depart the courtroom for a brief recess while I address this matter with counsel. BAILIFF: All rise. [All persons did as directed.] MJ: The members may depart. [The members withdrew from the courtroom.] [The court-martial recessed at 1508 hours, 21 May 2008.] [END OF PAGE]

402 [The Article 39(a) session was called to order at 1508 hours, 21 May 2008.] MJ: Please be seated. [All persons did as directed.] MJ: The 39(a) session is called to order. Let the record reflect the members have departed from the courtroom. Okay. What specific areas do you intend to pursue, Commander Messer of this particular witness? TC: How did he carry out his investigation, what steps did he go through, who did he talk to, who did he identify as witnesses, did he find those witnesses credible, what evidence did he collect, photographs, how did he obtain those photos, chain of custody of these documents. These documents are all going to be entered into court at a later time. It's important for the members to know how they were uncovered or who they were received from. Also we're going to talk about phone records and how he used those in his investigation and he created a spreadsheet along with Lieutenant Commander Marshall based on those phone records that have already been entered into evidence. I intend to submit that into evidence under M.R.E. 1006 and have him talk about that with the members. MJ: Captain Callahan, do you have any objections to the proffered testimony?

403 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

404 Wiggan's personal phone. All that's being done is reordering the numbers so that the members don't have to go through themselves in the deliberation room with a highlighter and highlight every number. MJ: Captain Callahan? IMC: And again, sir, it's not proper to be admitted into evidence. That's something he can use in argument, that he can present in argument. But this isn't something that's proper to give to the members and to admit into evidence. We're not talking about something so large that it cannot be conveniently examined in court such as what they're talking about. I mean, I'm holding them right here in my hand. We've got a relatively small stack. Certainly the members can look through this. Commander Messer is certainly free to present anything like that as part of his closing argument on arguing on it, but to admit that as evidence to the court is not proper, Your Honor. MJ: The Court agrees. Also with regard to the credibility of witnesses, that certainly is not a pertinent matter at this point for this witness to offer testimony. There has been no credibility attack on the witnesses and his personal opinion as to their credibility would not be relevant at this point. The determination of that credibility rests with the members. As far as I can tell, the only thing I see that would be properly brought forth by this member would be--by this witness would be the foundation for any photographs.

405 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.

406 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,

407 Prosecution Exhibit 4 for identification is a summary of that prosecution exhibit that lays out what calls were made to who and how many. If the Court will not allow me to present this as an exhibit, in the alternative I would still like to call the witness to testify to the number of calls made to the different phone numbers which are in Prosecution Exhibit 3. MJ: And Prosecution Exhibit 3 was the government cell phone? TC: That's correct, sir. MJ: Captain Callahan? IMC: Sir, I have no objection based on that proffer. Again on the specific questions and such, I may have objections. MJ: Very well. Okay. You may do so with regard to Prosecution Exhibit 3. Also with regard to any photographs that this witness has foundational testimony to provide, you certainly may lay a foundation, if you think you can, through this particular witness. But with regard to credibility of witnesses, that rests with the members, and at this point I don't believe a summary of evidence already received is appropriate to offer in as a matter in-- on the merits. TC: Understood, sir. MJ: Anything else that you anticipate pursuing with this particular witness?

TC: No, sir.

408 MJ: Do you need a moment to discuss the limitations of his testimony with him outside our presence? TC: Yes, sir, just briefly. MJ: Very well. Court stands in recess. Carry on. [The session recessed at 1516 hours, 21 May 2008.] [The session was called to order at 1524 hours, 21 May 2008.] MJ: This 39(a) session is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, except for the members who remain in the deliberation room. Lieutenant Commander Messer? TC: Yes, sir. In addition to discussing the phone calls and the numbers that are on Prosecution Exhibit 3, I'll also be showing the witness Prosecution Exhibit 1 for identification and just having him speak briefly about the chain of custody of that document, who he received it from and what he did with it when he received it. I will not be seeking to admit that in evidence at this time. MJ: Very well. So it's foundational? TC: That's correct, sir. MJ: Do you anticipate any objection, Captain Callahan, to the additional proffered testimony? IMC: No, sir, not to laying the foundation for those documents. MJ: Very well. Anything else we need to address outside the members' presence? IMC: Not from Defense, Your Honor.

409 TC: Nothing from the Government, sir. MJ: Very well. This 39(a) session is concluded. Bailiff, please ask the members to rejoin us at this time. BAILIFF: Yes, sir. [The Article 39(a) session concluded at 1525 hours, 21 May 2008.] [END OF PAGE]

410 [The court-martial was called to order at 1525 hours, 21 May 2008.] MJ: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. Members, please be seated. All others may be seated at this time. [All persons did as directed.] MJ: Lieutenant Commander Messer, further questions for this witness? TC: Yes, sir. May I approach? MJ: You may. TC: I'm retrieving from the court reporter what's been entered into evidence as Prosecution Exhibit 3. I'm handing Prosecution Exhibit 3 to the witness [handing PE 3 to the witness]. Q. Commander Doud, do you recognize that? A. [Reviewing PE 3.] I do. Q. What is it? A. It's phone records of Lieutenant Commander Penland's government cell phone.

411 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.

412 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.

413 Q. And the four calls to the MOBILE BAY, how did you know---- A. The same thing. Looked up the MOBILE BAY's phone number, verified it was to the MOBILE BAY. Q. And to NC1 Lewis-Wiggan? A. The same thing. TC: Request permission to approach? MJ: You may. TC: I'm retrieving Prosecution Exhibit 3 from the witness. MJ: Commander, if you would move a little closer to the microphone. Our construction noise is competing with you. TC: Retrieving from the court reporter--I've returned Prosecution Exhibit 3, retrieving Prosecution Exhibit 1 for identification. I'm showing Prosecution Exhibit 1 for identification to the defense counsel [showing PE 1 for ID to Defense]. MJ: Very well. TC: I'm handing Prosecution Exhibit 1 for identification to the witness [handing PE 1 for ID to the witness]. Q. Sir, do you recognize that? A. [Reviewing PE 1 for ID.] I do. Q. And how do you recognize it? A. These were photos that were given to me from NC1 Lewis- Wiggan. Q. When did she give you those photos?

A. She gave them to me when I interviewed her on board the USS MOBILE BAY. It would have been late--well, late February. I

414 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.

415 Q. Did you receive any indications from NC1 Lewis-Wiggan or any other witnesses that the photos had been altered? A. No, had not. TC: Thank you. Request permission to approach, sir. MJ: Very well. TC: I'm retrieving Prosecution Exhibit 1 for identification from the witness and I'm returning it to the court reporter. I have no further questions, sir. MJ: Captain Callahan, questions for this witness? IMC: No. Thank you, Your Honor. MJ: Members, questions for this witness? Negative response from all panel members. [The witness was duly warned, temporarily excused and withdrew from the courtroom.] TC: Sir, at this time the Government calls PS1 Lee to the stand. MJ: Very well. IMC: Sir, if I may, before the Government calls that witness, would it be possible to see if we can do some sort of arrangement in regards to the work that's being done in the courtroom. It's making it very difficult to hear. It's distracting for the court with this very serious proceeding that's being held here today, Your Honor.

MJ: Very well. Lieutenant Washington, XO?

416 LT WASHINGTON: Unfortunately--there's a courtroom available upstairs, sir, but the--I move them from right out here and I think they're getting back at me to go up above. I'm---- MJ: We don't have any alternative but to move our forum here? LT WASHINGTON: Yes, sir, unfortunately. MJ: Why don't we take a recess. Members, please cover your notes. Subject to my standard instructions, if you would depart on a short recess. BAILIFF: All rise. [All persons did as directed.] MJ: Please reassemble at 20 minutes to the hour. Court stands in recess. [The members withdrew from the courtroom.] [The court-martial recessed at 1532 hours, 21 May 2008.] [The court-martial was called to order at 1543 hours, 21 May 2008.] TC: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time. And we have seemed to have a reprieve from the construction, so hopefully we'll be able to press forward. All others, please be seated.

417 [All persons did as directed.] MJ: Further evidence from the prosecution on the merits of this case? TC: Yes, sir. At this time the Government would call PS1 Cheston A. Lee to the stand. MJ: Very well. Bailiff, please call Petty Officer Lee on behalf of the court. [The bailiff retrieved the witness.] PERSONNEL SPECIALIST FIRST CLASS CHESTON A. LEE, U.S. Navy, was called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Petty Officer Lee, please state your full name, spelling your last for the record. A. Cheston Alexander Lee, L-E-E. Q. And what is your current duty station? A. My current duty station is the USS BON HOMME RICHARD. Q. How long have you been in the Navy? A. I've been in the Navy 19 years come July. Q. Have you ever served on board USS MOBILE BAY? A. Yes, sir. Q. When was that? A. That would be February, March of '06 to roughly September of '07.

418 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----

419 IMC: Objection. Relevance. MJ: Lieutenant Commander Messer? TC: Sir, I'll go on and ask a follow-up question to clear it up. MJ: Very well. Q. When did her attitude change? A. It had to be when we came back after deployment which was---- Q. Do you remember when you came back from deployment? A. It was roughly November of '06. Q. And what change did you notice? A. She kind of---- IMC: Objection. Relevance. MJ: Overruled. Q. You can answer the question. A. She--her attitude at work kind of changed as far as she wasn't really focused on her job. She was kind of short tempered a little bit, just seemed like she was always being nagged about something. Q. Do you know why her attitude changed? A. After we--after I noticed it, there were some times where I pulled her aside and asked her what's going on and she had stated there was some issues going on at home.

IMC: Objection. Hearsay. MJ: Commander Messer?

420 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?

421 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

422 Department, as well as the chaplain's office, so. Q. Were these phone calls disruptive to the day-to-day--on board the ship? A. Not so much in my office, no. And like I said, more than likely I didn't transfer the call because the person just said, "No, I'll call back" or whatnot. So it wasn't disruptive for my office per se. Q. Did--to your knowledge, did Petty Officer Lewis-Wiggan ever accept any of the calls directly? A. I know I transferred the calls to the chaplain's office. I don't know if she actually took the call or whatnot. It could have been the chaplain who answered; I'm not sure. Q. Did you ever see her after any of those phone calls? A. Yeah. She would come to my office. You know, I'm sure it was after a phone call. I know once we transferred, that maybe a half hour she'd come by the office. Q. What was her demeanor like? A. She--aggravated. She seemed to be a little bit upset. She did say that she did get phone calls from a lady. IMC: Objection. Hearsay. MJ: Commander Messer? TC: It's offered for state--not for the truth of the matter but state of mind of the declarant.

MJ: Captain Callahan?

423 IMC: The fact that she may or may not be receiving phone calls a number of times certainly doesn't go to her state of mind. It's going to the truth of the matter as to whether or not she's receiving these phone calls. That's something that's proper to ask that witness when she's on the stand, Your Honor. MJ: Lieutenant Commander Messer? TC: No further response. MJ: Sustained. Q. Let me finish up with a question. I'm not asking about what she said to you but just her overall demeanor. How did she seem to you? A. Very aggravated, upset. TC: Thank you, Petty Officer. I have no further questions. MJ: Captain Callahan, questions for the witness? IMC: Briefly, please, Your Honor. MJ: Very well. CROSS-EXAMINATION Questions by the individual military counsel: Q. Good afternoon, Petty Officer Lee. A. Good afternoon, sir. Q. Petty Officer Lee, over the course of several months you received approximately four to five phone calls from an unidentified female for Chief--then NC1 Lewis-Wiggan, correct?

A. Over the few months that we were back in port, yes, sir.

424 Q. And Chief Wiggan, she also conveyed to you that she was upset because she wanted to work things out with her marriage, and her husband did not, correct? A. She was upset that she didn't understand why her relationship wasn't working out and that she did seem that she wanted to correct or fix the problem or whatever the issue was, yes, sir. IMC: Thank you. No further questions, Your Honor. MJ: Lieutenant Commander Messer? TC: Nothing further, sir. MJ: Questions from our members? Affirmative response from Commander Kelsch, Commander Tucker. Members, if you would please write out your questions. After you've done so, fold them half so they cannot be read and hold them up after you've completed the question and signed it and I'll have our bailiff retrieve them from you so they can be marked by the court reporter. Negative response from the other panel members. Bailiff, if you would retrieve the questions from our members and provide them to the court reporter. She will mark them as the next appellate exhibits in order. [Questions from CDR Kelsch and CDR Tucker were marked as AE XXXIX and XL, respectively.] MJ: Bailiff, if you would take the questions from our court reporter and provide them to the trial counsel first for his review and then to the defense counsel for his review, and then return them

425 to me. [The members' questions were inspected by counsel for both sides and handed to the military judge for questioning.] MJ: Thank you. Commander Messer, you did not initial the question forms. If you would please do so. [Trial counsel did as directed.] MJ: Thank you. EXAMINATION BY THE COURT-MARTIAL Questions by the military judge: Q. Question from Appellate Exhibit XXXIX: PS1 Lee, approximately how many phone calls did your office handle a month after the deployment? A. From the outside calls coming in, I'd have to say maybe 15, 15 and 20 a month. Q. Thank you. Question from Appellate Exhibit XL: What is the office phone number on the MOBILE BAY? A. I'm sorry, sir. I don't remember what that number is now. Q. Did you receive direct outside calls or were the connected by the quarterdeck? A. They seem to be direct outside calls. There was a different ring for an outside call coming in vice on board the ship, sir.

426 MJ: Thank you. Follow-on questions in light of those from either counsel? REDIRECT EXAMINATION Questions by the trial counsel: Q. PS1, do you know the quarterdeck phone number to the MOBILE BAY? A. Not now, sir. No, sir. TC: No further questions. MJ: Captain Callahan? IMC: Nothing further. Thank you, Your Honor. MJ: Follow-on questions from our members? Negative response from all panel members. [The witness was duly warned, temporarily excused and withdrew from the courtroom.] MJ: And let me return Appellate Exhibits XXXIX and XL to our court reporter. Further evidence from the prosecution? TC: Sir, at this time the Government would call Commander Masi to the stand. MJ: Very well. Bailiff, please call Commander Masi. [The bailiff retrieved the witness.] [END OF PAGE]

427 COMMANDER MATTHEW J. MASI, U.S. Navy, was called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Would you please state your full name, spelling your last. A. Commander Matthew John Masi, M-A-S-I. Q. And, Commander, are you currently on active duty? A. Yes, I am. Q. What is your current duty station? A. Current duty station is Maritime Expeditionary Security Group ONE. Q. And is that the command formerly known as Navy Coastal Warfare Group ONE? A. Yes, it is. Q. How long have you been in the Navy? A. Been in the Navy 18 years next month. Q. And briefly for the members can you just describe your background. A. Went to Navy Supply Corps School back in 1990, graduated from Supply Corps School, went to my first ship, USS IWO JIMA; on there I was disbursing officer, sales officer three years. From there I went to Fleet ASW Training Center as a supply officer. At that time I got out of the Navy for about a year; I was a drilling reservist while I was out, but I was out for a year.

428 Came back in 1995, stationed at Naval Air Station, Naval Air Reserve Point Mugu as a supply officer. From there I went to the USS DEYO as a supply officer. From the DEYO I went to Navy Cargo Handling Battalion FOURTEEN as the OIC. From Navy Cargo Handling FOURTEEN I went down to NAS JRB New Orleans as the assistant supply officer, fleeted up to the supply officer. From NAS JRB New Orleans I went to REDCOM Northwest as the logistics officer of the N4. And from there I came down as a supply officer for used to be NCWG ONE, now MESG ONE. Q. When did you report to Navy Coastal Warfare Group ONE? A. October 4th, 2006. Q. And do you know the accused in this case? A. Yes, I do. Q. How do you know her? A. She worked for me at MESG ONE. Q. Approximately what time period did she work for you? A. She worked for me from October of 2006 to February of 2007. Q. And what was her official title during that time? A. During that time it was assistant--when I got there, we changed it to assistant supply officer. Q. So she reported directly to you? A. Yes. Q. And did you--as her direct supervisor, did you have the opportunity to observe her work? A. Yes.

429 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----

430 IMC: Objection. Relevance. MJ: Lieutenant Commander Messer? Q. Commander, we're not going to get into the performance of the accused at this time. A. Okay. Q. If you could just explain to the members what was the purpose of the meeting. A. The purpose of the meeting was to issue a letter of instruction on Lieutenant Commander Penland. Q. Do you remember when that meeting occurred? A. To the best of my knowledge, it was about--it was on a Friday, end of February. I think it was about the 23rd of February. Q. And do you remember who was present at that meeting? A. Present was the commodore, Captain Sturges; the acting JAG at that time, Lieutenant Commander McCarthy I believe her name was; myself; Lieutenant Commander Penland; and I think the chief staff officer, but I can't--I can't be sure, it was a while ago, which was Commander Jack Ward. Q. And at that meeting, do you remember Lieutenant Commander Penland saying anything? A. She said a lot. Q. Was she--did she say anything about Petty Officer Lewis- Wiggan at the meeting?

A. The commodore asked her--the commodore got--received a phone call from Petty Officer Wiggan's commanding officer and he

431 brought up that Lieutenant Commander Penland was contacting the petty officer on the ship and the commodore brought up--asked Lieutenant Commander Penland, "Have you contacted Petty Officer Wiggans?" Lieutenant Commander Penland said, "No, I have not had contact with Petty Officer Wiggans." The commodore asked her again, still the same answer. And then a final time the commodore said, "So you're telling me to my face you have not contacted Petty Officer Wiggans?" And she said, "No, I have not contacted Petty Officer Wiggans." Q. Was there any question in your mind as to what she intended to relay to the commodore? A. That she's had no contact with Petty Officer Wiggans. Q. So there was no misunderstanding? A. I had--there was no misunderstanding from me, no. TC: Thank you very much, sir. I have no further questions. MJ: Captain Callahan, questions for the witness at this time? IMC: Briefly, Your Honor, please. MJ: Very well. CROSS-EXAMINATION Questions by the individual military counsel: Q. Good afternoon, sir. A. Good afternoon. Q. Sir, isn't it true that you've been the subject of numerous IG complaints that Lieutenant Commander Penland has filed?

A. Yes, I have been.

432 Q. Is it also true you've been the subject of an equal opportunity complaint filed by Lieutenant Commander Penland? A. Yes, I have been. Q. Isn't it also true that you approached Lieutenant Commander Penland and complained to her about bringing the business and issues of Naval Coastal Warfare Group ONE up with Naval Coastal Warfare Group TWO? A. Yes. Q. Is it also true that you complained about her bringing up issues and concerns she had and, instead of addressing them through you, sending them to other officers? A. I don't remember that. I remember the conversation with her about talking to the supply officer at Group TWO. Q. Did Commander Marshall ever come and speak with you about concerns that Lieutenant Commander Penland had raised about you and about the supply office? A. Yes. IMC: Thank you. No further questions. MJ: Lieutenant Commander Messer? TC: Yes, briefly, sir. REDIRECT EXAMINATION Questions by the trial counsel: Q. Commander, do you hold any ill will against Lieutenant

Commander Penland? A. No.

433 Q. Do you want to see bad things happen to her? A. Bad, no. Q. And have you in any way changed your testimony or testified untruthfully here today to achieve that end? A. No. TC: Thank you. I have no further questions. MJ: Captain Callahan? IMC: Thank you, Your Honor. RECROSS-EXAMINATION Questions by the individual military counsel: Q. Sir, so your testimony here today is that even though you have been named in IG complaints, even though you were upset with her about going over your head---- TC: Objection, sir. Asked and answered. MJ: Overruled. Q. Even though you were upset with her about reporting contracting issues to Naval Coastal Warfare Group ONE, even though you were upset that Commander Marshall came, the judge advocate general and for the unit, that you are not upset at her over any of this? A. No. Because the complaints that she raised about the supply operation was before my time; it was actually while she was acting as the supply officer. So any complaints that she would be raised were actually putting herself on report. It had nothing to do with myself. So, no, I wasn't upset about that.

434 Q. And none of those occurred--none of those reports list any time for when you were acting as the division head there? A. Well, department head and---- Q. The department head. A. No. Q. But you were the subject of an equal opportunity complaint and multiple IG complaints she raised? TC: Objection. Asked and answered. MJ: Overruled. WIT: I did answer that, but, yes, I was the subject. Q. And you're not--you don't hold any ill will because you've been named in those multiple complaints? A. I'm just trying to get my job done and move on. If we have to go through those steps to bring the process to a completion, great, we'll just--we'll go through. Q. I understand, sir, that, you know, you have to do your job and you have to move on, and your testimony is you're not altering your testimony any because of that, but your testimony also is you're not even the least bit upset that these very serious allegations have been leveled against you? A. No. IMC: Thank you. No further questions, sir. MJ: Lieutenant Commander Messer?

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

435 MJ: Questions from our members? Negative response from all panel members. [The witness was duly warned, temporarily excused and withdrew from the courtroom.] MJ: Further evidence from the prosecution on the merits of its case? TC: Yes, sir. We have two more witnesses scheduled for today, Lieutenant Commander Moninger and Lieutenant Commander McCarthy. I'm not sure if they are currently here and available. MJ: Very well. TC: I guess we'll send the bailiff quickly to see if they're standing by and, if not, I'd ask for a brief recess. MJ: Your preference as to which one if they're both there? TC: I'm sorry, sir. The Government calls Lieutenant Commander Moninger. MJ: Moninger. Very well. Bailiff, if you would, please, see if the witness is available. [The bailiff did as directed.] BAILIFF: No, Your Honor. He's not available. TC: Sir, the Government asks for a brief recess. MJ: Very well. Members, subject to my standard instructions, please cover your notes. Do not discuss the case amongst yourselves or with anyone else. You may depart on a brief recess. Please reassemble at 20 minutes after the hour. BAILIFF: All rise.

436 [All persons did as directed.] MJ: Court stands in recess. The members may depart. [The members withdrew from the courtroom.] MJ: Carry on. Court's in recess. [The court-martial recessed at 1609 hours, 21 May 2008.] [The court-martial was called to order at 1632 hours, 21 May 2008.] TC: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Lieutenant Commander Messer, your next witness, please. TC: Yes, sir. The Government calls Lieutenant Commander McCarthy to the stand. MJ: Very well. Bailiff, if you would please call the witness on behalf of the court. [The bailiff retrieved the witness.] [END OF PAGE]

437 LIEUTENANT COMMANDER KRISTEN MCCARTHY, JAG Corps, U.S. Naval Reserve, was called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Commander, for the record, can you state your full name, spelling your last. A. Kristen McCarthy, M-C-C-A-R-T-H-Y. Q. And, Commander, what is your current duty station? A. I'm a reservist with--in our Region Legal Service Office Southwest 319. Q. And you're--are you on active duty at this time? A. No. I'm a drilling reservist right now. Q. Do you know the accused in this case? A. She--yes. Q. How do you know the accused, ma'am? A. She was the supply officer at--what was then Naval Coastal Warfare Group ONE when I was mobilized briefly to fill in as the SJA there. Q. How long were you mobilized on that---- A. Approximately two months. Q. And what were the approximate dates of that? A. It was the beginning of January through February, and I detached the first week of March.

438 Q. And that was in the year of what? A. I'm sorry. 2007. Q. And what kind of interaction did you have with the accused during that time? A. I had very little interaction, other than at, you know, department head meetings, command PT, other than the instances as to why we're here. TC: Actually, sir, request permission to approach? MJ: Very well. TC: I'm retrieving from the court reporter what has been previously marked as Prosecution Exhibit 20 for identification. MJ: And while you're doing that, let me just note for the record that LN2 Chico has been detailed court reporter for this session, and she has been previously sworn. TC: I'm showing Prosecution Exhibit 20 for identification to defense counsel [showing PE 20 for ID to Defense]. I'm handing Prosecution Exhibit 20 for identification to the witness [handing PE 20 for ID to the witness]. Q. Commander, do you recognize that? A. [Reviewing PE 20 for ID.] Yes, I do. Q. What is that? A. This is the military protective order that was issued to Lieutenant Commander Penland on the 9th of January of '07.

439 Q. And how is it that you recognize that document? A. Because I was involved in the drafting of this document and I also was the one that presented it to Lieutenant Commander Penland. Q. And does this document appear to be an accurate representation of what you helped draft and serve on Lieutenant Commander Penland? A. Yes, it does. TC: Sir, at this time I would request that Prosecution Exhibit 20 be offered into evidence and the words "for identification" be deleted. MJ: Any objection from the Defense? IMC: No, Your Honor. MJ: There being no objection, Prosecution Exhibit 20 for identification is admitted into evidence. The words "for identification" will be stricken, and you may publish the exhibit at an appropriate time. Q. Lieutenant Commander McCarthy, to your knowledge when this document--well, I should ask you when--after this document was served, when did it expire? A. It expired on the 19th of January 2007. Q. And to your knowledge, was this order ever violated? A. Not to my knowledge, no. Q. Now, were you present at a meeting on the 23rd of February at Navy Coastal Warfare Group ONE? A. Yes.

440 Q. Who was present at that meeting? A. The commodore, Captain Sturges; myself, Commander Masi; and Lieutenant Commander Penland. Q. Do you remember what the purpose of that meeting was? A. Yes. The commodore had received a call from the--I believe the commanding officer of the MOBILE BAY stating that Lieutenant Commander Penland had been--had called NC1 Lewis-Wiggans again, I believe on the 21st of May [sic], and he was calling to let the commodore know that this was starting up again. Q. And what was the--what was the purpose of the meeting? A. Oh, I'm sorry. The purpose of the meeting was to--the commodore wanted to tell Lieutenant Commander Penland in person that she was to have--basically the exact same type of thing this MPO was for originally was that she should have no contact with NC1 Lewis- Wiggan. Q. And what was Lieutenant Commander Penland's response to that? A. He stated, "I just got a call from the CO of the MOBILE BAY that you called her," and her response was, "I have not spoken to that woman" or something along those lines. Q. Did she give a definitive period as to when she had not spoken to that person? A. She said--she said "I have not talked to her since," and she pointed to me, "since JAG told me--gave me that MPO" or----

441 Q. So, in your mind, what was she representing? A. That she had had no contact--she had had no conversations with NC1 Lewis-Wiggans since the 9th of January. Q. And that period would have been about a month and a half? A. Well, this was the 23rd of February that she said that and the MPO was issued on the 9th of January of '07, yes. Q. Now, was there any question in your mind as to the resolve of the accused, in other words, her intent when she made that statement? A. It was her intent to tell the commodore that she did not talk to her. Q. And it was--that was stated in no--I mean, there was no question as to what was stated? A. No. She was very clear. TC: Thank you. I have no further questions. MJ: Captain Callahan, questions for the witness? IMC: Thank you, Your Honor. CROSS-EXAMINATION Questions by the individual military counsel: Q. Good afternoon, ma'am. A. Hello. Q. Ma'am--I'll try and talk around the drill bit there. Ma'am, Captain Sturges asked her one time if she had called and one time she denied calling, correct? A. I'm sorry. Could you repeat the question.

442 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.

443 Q. And isn't it possible that Commander Penland said "I have not been making harassing phone calls to that woman"? A. That's not what I recall. Q. Is there any possibility your memory is shaky on it? A. No. Q. So you don't remember for certain as to whether or not there were interruptions, but you do remember for certain that she said "I have not called, I have not called and harassed"? A. I am quite certain--no. I am quite certain that she said "I haven't spoken to her since JAG told me not to." IMC: Thank you. No further questions, Your Honor. MJ: Lieutenant Commander Messer? TC: Just briefly. REDIRECT EXAMINATION Questions by the trial counsel: Q. Lieutenant Commander McCarthy, are you the--have you been the subject of any equal opportunity complaints or IG complaints filed by Lieutenant Commander Penland? A. Not that I'm aware of. TC: Thank you. No further questions, sir. MJ: Captain Callahan?

IMC: Nothing further, Your Honor.

444 MJ: Either side desire the witness subject to recall for purposes of this trial? TC: Just telephonically, sir. MJ: Very well. I should have asked: Members, any questions for the witness? Negative response from all panel members. [The witness was duly warned, temporarily excused and withdrew from the courtroom.] MJ: Further evidence from the prosecution on the merits of its case this evening? TC: Nothing further this evening, sir. MJ: Very well. Members, in a moment, I will release you in an overnight recess. We are making apparently good progress, so there's no need for a late session tonight. I will not make that same promise with regard to tomorrow or Friday, but perhaps I may be able to as the day develops. Please cover your notes. Again you may take them with you; if you'd like, you can leave them behind and they'll be provided for you in the morning. Given the possibility of a late session and construction debris depending on if we have to shift locations, I'm going to switch to a more comfortable uniform. If you would please return tomorrow at 0900. The uniform will be khaki. If you'd like, you may bring a sweater or a jacket; it may be cold in this space. Subject to the standard instructions to not discuss the case amongst yourselves or with anyone else, the members may depart on an overnight recess to reassemble at 0900 hours tomorrow. Good

445 evening, members. The members may depart. BAILIFF: All rise. [All persons did as directed, and the members withdrew from the courtroom.] [The court-martial recessed at 1642 hours, 21 May 2008.] [END OF PAGE]

446 [The Article 39(a) session was called to order at 1643 hours, 21 May 2008.] MJ: Please be seated. [All persons did as directed.] MJ: This 39(a) session is called to order. Let the record reflect the members have departed from the courtroom. I did neglect to summarize a brief 802 conference we held in the courtroom before the last session of court. Counsel outlined the remaining evidence of the case. The Government anticipates calling four witnesses tomorrow morning and expects to wrap up its case-in-chief by lunch hour. I requested then that the Defense have any witnesses it desires to present available after lunch, and was informed that those witnesses would take perhaps half a day at most. So it would appear that we will be hopefully completed with the evidence on the merits by tomorrow afternoon, late afternoon or early evening. And I requested counsel to be prepared to discuss findings instructions with me at that time. Counsel concur with my summation of our 802 conference? TC: Yes, sir. IMC: Yes, Your Honor. MJ: And for Navy personnel, the uniform will be khaki tomorrow. Lieutenant Commander Penland, you may dress down, if you desire, or you may remain in summer whites. I'll let you discuss that matter with your counsel, however you're more comfortable.

447 Are there other matters we need to address on the record this evening? TC: No, sir. IMC: Not from Defense, Your Honor. MJ: Very well. Thank you, counsel, for your presentations and efforts on behalf of the Court to this point. This court is in overnight recess. Carry on. [The Article 39(a) session recessed at 1644 hours, 21 May 2008.] [END OF PAGE]

448 [The Article 39(a) session was called to order at 0906 hours, 22 May 2008.] MJ: This 39(a) hearing is called to order. Let the record reflect that all parties present prior to the overnight recess are again present before the Court at this time except for the members who remain in the deliberation room. Let me note a change in court reporters. Ms. Brown has been detailed court reporter for this session this morning, and she has been previously sworn. Prior to going on the record this morning, counsel indicated there was an issue they wanted to address on the record concerning a spectator to the court-martial and rather than go into an extensive summary of what we discussed off the record, I'll let Captain Callahan state the concern and a request for the Court. IMC: Sir, Commander Penland would request that Commander Marshall not be allowed to watch the court proceedings. I'll summarize what we discussed. She was called again last night by Commander Marshall. Commander Penland feels that there's a long history of witness intimidation, tampering with her court-martial, illegal influence being done by Commander Marshall against her; and the appropriate way to handle that is to address this as a motion in limine, allow Lieutenant Commander Penland to testify on it and allow the Court to hear what she has to say on it vice using me as a mouthpiece for what is delicate ethical concerns dealing with another attorney. MJ: Lieutenant Commander Messer?

449 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.

450 MJ: Well, I don't see a need for an extensive evidentiary hearing at this point. I think, in an abundance of caution, I'm going to grant the Defense's request. If the contact was made, it was inadvertent. It still is unfortunate that given the scenario and the circumstances of this case that the Convening Authority or the former Convening Authority's SJA would contact the accused during the pendency of her trial and, given the sensitive nature of the prior interactions, I think that it would be most appropriate at this point to ask Lieutenant Commander Marshall to not observe the proceedings. Therefore, the Defense's request to exclude Lieutenant Commander Marshall is granted, subject to reconsideration at a later point. IMC: Yes, sir. TC: Aye, sir. MJ: Other matters we need to address on the record this morning? IMC: No, Your Honor. TC: Nothing from the Government, sir. MJ: Ready for the members? TC: Bailiff, are all the members present? BAILIFF: Yes, sir. TC: We are, sir. MJ: Very good. This 39(a) session is concluded.

Bailiff, please ask the members to rejoin the court. [The Article 39(a) session concluded at 0910 hours, 22 May 2008.]

451 [The court-martial was called to order at 0910 hours, 22 May 2008.] MJ: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the overnight recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Good morning, members. We have additional evidence to offer you this morning. Lieutenant Commander Messer, does the Government have additional evidence it would like to offer on the merits of its case? TC: It does, sir. At this time the Government would call Captain John B. Sturges, III, (Retired). MJ: Very well. Bailiff, if you would please call the witness on behalf of the court. [The bailiff retrieved the witness.] [END OF PAGE]

452 CAPTAIN JOHN B. STURGES, III, U.S. Navy (Retired), was called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Sir, for the record, would you please state your full name, spelling your last. A. John Bellow [ph] Sturges, III, S-T-U-R-G-E-S. Q. And, sir, by whom are you currently employed? A. Booz Allen Hamilton. Q. And do you have any affiliation with the Navy at this time? A. No. Q. Have you ever served in the Navy? A. Yes. Q. In what capacity, sir? A. I retired as a Captain as of 1 December. Q. How many years of service did you have, sir? A. A little bit over 30. Q. And briefly for the members could you please describe your service. A. I graduated from the Naval Academy in 1978 and was a surface warfare officer, had a career predominantly on cruisers, destroyers and associated staffs and concluded my career as Commander, Naval Coastal Warfare Group ONE down in Imperial Beach.

453 Q. Sir, do you know the accused in this case, Lieutenant Commander Penland? A. I do. Q. How do you know her? A. She was my supply officer at Naval Coastal Warfare Group ONE. Q. During what period, sir? A. She was my supply officer probably a little bit--about 14 months. I want to say she reported in 2006---- Q. And was she---- A. Probably early 2006. Q. And was she at the command when you retired? A. She was, but she was assigned TAD to another command. Q. Now, did you ever receive a call from the CO or XO of another ship about Lieutenant Commander Penland? A. I did. I received a call from the Commanding Officer of the MOBILE BAY who wanted to know what was up with my lieutenant commander calling one of his Sailors and bothering her. Q. And what was your response to that phone call? A. I said I'd check into it. We had had similar incidences before and actually the XO had spoken to my chief staff officer about similar incidents. I was hoping we were kind of beyond that because I had actually issued her a military protective order to stay away from this Petty Officer Lewis-Wiggan and so I thought we were beyond that, and then I had received this call from the commanding officer.

454 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.

455 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.

456 Q. Have those complaints in any way made you alter your testimony here today? A. Not at all. Q. Have you--do you hold a grudge against Lieutenant Commander Penland because of those complaints? A. I don't hold a grudge against her because of those complaints. It's more about her behavior and her professionalism as a Naval officer. Q. And because of those complaints have you in any way changed your perception or your memory of that event on that day? A. No, because all those have been subsequent to that event anyway, so it didn't influence it one way or another. TC: Thank you very much, sir. I have no further questions. WIT: You're welcome. MJ: Captain Callahan? IMC: Thank you, Your Honor. CROSS-EXAMINATION Questions by the individual military counsel: Q. Good morning, sir. A. Good morning. Q. Sir, that whole host of complaints includes both IG complaints and equal opportunity complaints, doesn't it? A. It sure does.

457 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.

458 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?

459 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.

460 IMC: Thank you, sir. WIT: Sure. IMC: No further questions. MJ: Redirect? TC: Sir, just real briefly. REDIRECT EXAMINATION Questions by the trial counsel: Q. They touched on IG complaints. As far as you know, is the equal opportunity complaint, has that been resolved? A. I have no idea because I'm--again, I'm not in the Navy anymore, so I really had no visibility on what's the status of the complaints are. I get--people tell me things periodically, but I don't get current updates on them, so I really have no idea what the status is. Q. Are you aware to date if any of these complaints have been substantiated in any way? A. None of them have been. TC: Thank you. No further questions. MJ: Captain Callahan? IMC: Nothing further. Thank you, Your Honor. MJ: Questions from our members? Affirmative response from Commander Good. Negative response from the other members. Bailiff, if you would retrieve the question and bring it to our court reporter who will mark it as the next appellate exhibit in order. And then provide the question to the counsel.

461 [The question from CDR Good was marked as AE XLI and provided to counsel for both sides for their inspection.] MJ: Thank you. Let the record reflect that counsel are reviewing question, Appellate Exhibit XLI. [The bailiff handed AE XLI to the military judge for questioning.] MJ: Thank you. EXAMINATION BY THE COURT-MARTIAL Questions by the military judge: Q. Questions from Appellate Exhibit XLI: Captain, a previous witness, Commander Masi, indicated that the purpose of the 23 February 2007 meeting with Lieutenant Commander Penland was to issue an LOI. Was an LOI issued on this or any other issues during this session? A. No. The LOI was actually issued subsequent to this meeting. Q. Second question: Sir, you characterized Lieutenant Commander Penland as the supply officer, but implied that she had Commander Masi as her department head over her. Commander Masi previously characterized her as assistant supply officer. Could you please clarify her billet title and status, and was she a full department head? A. We have a logistics officer and a supply officer. The logistics I considered was Commander Masi. The supply officer worked for Commander Masi. In that regard, you know, how they termed each other, she essentially de facto was the assistant supply officer.

462 MJ: Thank you, sir. Follow-on questions in light of those? TC: None from the Government, sir. IMC: Briefly, if I may, Your Honor. MJ: Very well. RECROSS-EXAMINATION Questions by the individual military counsel: Q. Her title was, in fact, that of supply officer. She just answered to Commander Masi, correct, sir? A. Yeah. Whatever they called each other, I didn't get involved in that. You know, if that's what he called her, then I thought of her of supply officer. I thought of him as logistics officer. IMC: Yes, sir. Thank you, sir. WIT: You're welcome. IMC: Thank you, Your Honor. MJ: Lieutenant Commander Messer, anything further? TC: No, sir. MJ: Follow-on questions from any member? Negative response from all panel members. [The witness was duly warned, temporarily excused and withdrew from the courtroom.] MJ: And I am now returning Appellate Exhibit XLI to our court reporter. Further evidence on the merits of your case, Lieutenant Commander Messer?

463 TC: Yes, sir. At this time the Government would call Lieutenant Commander Thomas Moninger to the stand. MJ: Very well. Bailiff, if you would please call the witness on behalf of the court. [The bailiff retrieved the witness.] LIEUTENANT COMMANDER THOMAS P. MONINGER, U.S. Navy, was called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. For the record, could you please state your full name, spelling your last. A. My full name is Thomas Patrick Moninger. Last name is spelled M-O-N-I-N-G-E-R. Q. And, Commander Moninger, what is your current duty station? A. I'm currently assigned temporarily to the Bureau of Naval Personnel. I previously was the executive officer on USS PRINCETON, have detached and am en route to the Naval War College. Q. Commander, how long have you been in the Navy? A. I've been in the Navy 14 years and in that time I've served on two destroyers, two aircraft carriers, PRINCETON, and one shore command. Q. Do you know the accused in this case, Lieutenant Commander Penland?

A. I do.

464 Q. Do you recognize her here today? A. I do. Q. Could you just please indicate where she is or identify---- A. She is--she's seated right here [pointing to accused.] TC: Let the record reflect that the witness has identified Lieutenant Commander Penland. MJ: Very well. Q. How is it that you know Lieutenant Commander Penland? A. Well, prior to the court proceedings, I've met her twice. The first time was when USS PRINCETON was in San Francisco in 2006. This was for San Francisco Fleet Week. I walked into the wardroom and saw her with--speaking with Lieutenant JG Wiggan, and Lieutenant JG Wiggan introduced me to her. It was an unremarkable conversation and that was the first time I met her. Q. Was she attached to USS PRINCETON at the time? A. She was not. The--her capacity, as I understood it, was that her organization was providing some sort of security protection for the fleet during Fleet Week in San Francisco and that was what brought her up there. Q. Do you know the nature of her visit in San Francisco? A. I can't--I can't speak to it. I thought it was associated with her--with the force protection associated with the visit, but it looked like it was a personal call on Lieutenant Wiggan.

Q. Was she in uniform at the time? A. She was not.

465 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,

466 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

467 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.

468 Q. And Commander Murphy? A. He was. Q. What uniform was Lieutenant Commander Penland in? A. Lieutenant Commander Penland was not in uniform. She was in civilian clothes, and that struck me as odd. Q. Why did that strike you as odd? A. Well---- IMC: Objection. Relevance. MJ: Commander Messer? TC: Well, sir, the accused has been charged with conduct unbecoming. I think the--all the details of this meeting, including if whether she was in uniform and whether--what the opinion was of the witness as to whether that was appropriate or not is relevant to the charge. IMC: Sir, the opinion of the witness as to whether or not what she's doing is conduct unbecoming or professional or not is certainly not proper to be given to the members. Sir, the members are to determine whether or not the conduct in question was conduct unbecoming, not for the witness. TC: Sir, I've laid a foundation. This witness has extensive military experience, Naval experience, and would be able to form an opinion as to whether he thought that was appropriate conduct under the circumstances.

MJ: Are you offering him as an expert in the area of officer conduct?

469 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.

470 Q. I want to talk to you a little about the details of that conversation. What exactly did Lieutenant Commander Penland tell you with respect to the missing jewelry? A. She said that it was--that she discovered it was stolen from her apartment. I asked how--I asked how would--how would Lieutenant JG Wiggan have been able to steal it from the apartment, how would he--did he break in, and she informed me that he had a key. And so at that point I said, "So he's able to get in and out of your apartment, you've given him a key?" "Yes." "Well, what leads you to believe that it was stolen?" "Well, it's not there." "Well, where do you think--are you alleging that it's on board? Do you"--you know, that's sort of what I thought she was driving at was she wanted some action taken by me. I asked her, "What did you want me to do, because I have no intention of searching his stateroom based on this." And then I suggested to her that if she felt that this was stolen, that she should file a charge with the police, with her command, and I asked her if she was filing a charge with me and she said no. Q. Did you inquire into the status of her relationship with Lieutenant JG Wiggan? A. I did not. This event occurred after I had received a phone call from the executive officer of MOBILE BAY, Lieutenant

Commander Bufkin [ph]. She--that had occurred earlier. IMC: Objection. Hearsay.

471 MJ: Lieutenant Commander Messer? TC: Sir, as of yet the witness has not made a statement. If the witness were to state what the XO said, it would be offered for effect on the listener, not to the truth of the matter. MJ: Objection sustained. Q. The question was initially what was the--if you had inquired into the status of the relationship. Did you? A. I did not. Q. And were you aware of Lieutenant JG Wiggan's marital status at that time? A. I was. Q. And was he married to someone else at that time? A. He was. Q. And do you know who that person was? A. That person was the career--command career counselor on the MOBILE BAY. Q. And how did you know that? A. I knew that because, first of all, I was aware that he was married to an enlisted Sailor on board MOBILE BAY. It's just something in the course of my business I had learned. And additionally, I had a received a phone call from the executive officer of MOBILE BAY telling me that---- IMC: Objection. Hearsay.

MJ: Sustained.

472 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

473 this is on a Friday. So perhaps the discussion that I referred to occurred the day before. She says that she wants to extend an apology because she found the--after an exhausting search, she found the bag with the missing contents and she assumed that Mark had taken it, but her assumptions were wrong. Mark is Lieutenant JG Wiggan. "Appreciate the time that you and Lieutenant Commander Murphy took during your busy schedule and I'd like to extend my personal apologies to you, Lieutenant Commander Murphy and Lieutenant Junior Grade Wiggan and hope that I didn't cause any inconvenience to your command. I also apologize for any embarrassment or shame I may have caused to Lieutenant JG Wiggan and hope that this personal matter does not cause you to lose confidence in his ability to perform his job as MPA." Q. Now, to the best of your recollection, is that an accurate depiction of the e-mail you received from Lieutenant Commander Penland on the 23rd of February? A. It is. Q. And this e-mail doesn't appear to be altered in any way? A. It does not. I forwarded--I responded to her that I appreciated her telling me that. TC: Sir, at this time I would offer into evidence Prosecution Exhibit 17 for identification and ask that the words "for identification" be deleted.

MJ: Objection from the Defense? IMC: No, Your Honor.

474 MJ: There being no objection, Prosecution Exhibit 17 for identification is now admitted into evidence. The words "for identification" will be stricken by our court reporter and you may publish the exhibit at an appropriate time. TC: Thank you, sir. Q. Just one more follow-up question, Commander. Why do you believe Lieutenant Commander Penland apologized in the e-mail? IMC: Objection. Speculation. MJ: Lieutenant Commander Messer? TC: Well, sir, it's the witness' personal recollection or opinion as to his impression of the e-mail. MJ: Why is that relevant? TC: Well, it goes to the conduct unbecoming charge, sir. IMC: Again, sir, we're not dealing with his impression or recollection from seeing somebody in their demeanor. It's a paper e-mail. The members are equally capable of looking and determining an intent from a paper e-mail as the witnesses. MJ: Objection sustained. Q. Did you share this e-mail with anyone else when you received it, Commander? A. I did. I informed the commanding officer of the e-mail. I'm not sure if I forwarded it to him or printed it out and allowed him to read it.

TC: Thank you very much. I have no further questions. Sir, I'm retrieving what has been entered into evidence as

475 Prosecution Exhibit 17 and I'm returning it to the court reporter. MJ: Thank you. Captain Callahan, questions for the witness? IMC: Yes, please, Your Honor. CROSS-EXAMINATION Questions by the individual military counsel: Q. Good morning, sir. A. Good morning. Q. Sir, Lieutenant Commander Penland was polite and cordial the entire time she was dealing with you, wasn't she? A. That is correct. Q. And when you told her to leave the ship with Lieutenant Commander Murphy, she left the ship? A. She did. Q. Did you at any time before that, order her to leave the ship? A. I don't believe I did. IMC: Thank you, sir. No further questions, Your Honor. MJ: Lieutenant Commander Messer? TC: No further questions, sir. MJ: Questions from our members? Negative response from all panel members.

[The witness was duly warned, temporarily excused and withdrew from the courtroom.]

476 MJ: Why don't we take a brief recess here. Members, if you would please cover your notes. Subject to my standard instructions, you may take a recess. Please reassemble at, oh, let's reconvene at 1000 hours. BAILIFF: All rise. [All persons did as directed.] MJ: Court stands in recess. The members may depart. [The members withdrew from the courtroom.] MJ: Carry on. [The court-martial recessed at 0945 hours, 22 May 2008.] [The court-martial was called to order at 1007 hours, 22 May 2008.] MJ: Bailiff, please ask the members to join us. BAILIFF: Yes, sir. MJ: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others may be seated. [All persons did as directed.]

MJ: Further evidence from the prosecution on the merits of its case?

477 TC: Yes, sir. At this time the Government would call Chief Kimberly Lewis-Wiggan to the stand. MJ: Very well. Bailiff, if you would please call the witness on behalf of the court. [The bailiff retrieved the witness.] NAVY COUNSELOR CHIEF KIMBERLY LEWIS-WIGGAN, U.S. Navy, was called as a witness for the prosecution, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Chief, for the record, could you please state your full name, spelling your last. A. Kim Denise Lewis, L-E-W-I-S W-I-G-G-A-N, Q. And, Chief, what is your current duty station? A. I'm at Naval Support Facility, Thurmont, Maryland, Camp David. Q. And how long have you been at Camp David? A. I've been at Camp David approximately four months. Q. And what was your command prior to transferring to Camp David? A. The USS MOBILE BAY (CG 53). Q. How long were you on board USS MOBILE BAY? A. Two years. Q. How long have you been in the Navy?

A. Seventeen years.

478 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.

479 Q. What date were you and Lieutenant JG Wiggan married? A. It was approximately like 2000, March 2000. TC: Sir, may I approach? MJ: You may. WIT: I can't remember exactly. TC: I'm retrieving from the court reporter what has been marked as Prosecution Exhibit 19 for identification. MJ: Is the witness' microphone on? Counselor if you would check. Maybe just move a little closer. WIT: Okay. MJ: Thank you. WIT: No problem, sir. TC: Correction. Prosecution Exhibit 23 for identification. MJ: Very well. TC: I'm showing to defense counsel what has been previously marked as Prosecution Exhibit 23 for identification [showing PE 23 for ID to Defense]. I'm handing Prosecution Exhibit 23 for identification to the witness [handing PE 23 for ID to the witness]. Q. Chief, do you recognize that? A. Oh, yes. This is our marriage certificate and for Oak Harbor, Hawaii. Q. How is it that you recognize that document?

A. I remember it well because we got married at lunch.

480 Q. And as far as you know, is that an accurate depiction of that document? A. Yes, it is. TC: Sir, at this time I would ask that Prosecution Exhibit 23 for identification be entered into evidence and the words "for identification" be deleted. MJ: Objection from the defense counsel? IMC: No, Your Honor. TC: I'm returning Prosecution Exhibit 23 to the court reporter. MJ: There being no objection, Prosecution Exhibit 23 for identification is now admitted into evidence and the words "for identification" will be stricken by the court reporter, and you may publish the exhibit at an appropriate time. TC: Thank you, sir. Q. Now, Chief, were you married to Lieutenant JG Wiggan on September 2006? A. Yes, I was. Q. And were you still married to him on January of 2007? A. Yes, I was. Q. And were you married to him during that entire period of time between September 2006 and June 2007? A. Yes, I was. Q. Are you still married to him now?

A. Yes, I am.

481 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.

482 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.

483 Q. And to your knowledge, did Lieutenant Commander Penland know that you were married to Lieutenant JG Mark Wiggan? IMC: Objection. Speculation. TC: Sir, I can--I'll lay a foundation and then ask the question. MJ: Very well. Q. Did you ever have any conversations with Lieutenant Commander Penland as to your relationship with Lieutenant JG Mark Wiggan? A. When he was on the STOUT or when---- Q. No. At any time. You had just begun to testify that you didn't know Lieutenant Commander Penland during that time, correct? A. No. I never met her because I was on the squadron. I was at VFA-211. We were embarked aboard the USS ENTERPRISE, so I checked on there from the GUNSTON HALL. Then within two months I went on deployment again. So I never--I never met her the entire time he was on the STOUT because I was actually deployed a lot at that time. Q. I'll come back to the question as to whether you believe Lieutenant Commander Penland knew you were married to Lieutenant JG Wiggan. I'd like to now move up in time to when you were on board USS MOBILE BAY. Did you ever deploy on the MOBILE BAY? A. Yes, I deployed on the MOBILE BAY, sir.

Q. When--what were the dates of that deployment? A. I checked in in December. We deployed in March.

484 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

485 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

486 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.

487 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."

488 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.

489 Q. Do you remember the date of that phone call? A. Not off the top of my head, no, sir. It was while--it was so long ago. Q. And when--what else was discussed in that phone conversation other than this person was having an affair with your husband? Was anything--or I should say was anything else discussed? A. No. That was pretty much the gist of the whole conversation just was to my recollection. Q. So after that conversation, what happened next? A. The next thing I know I got an e-mail on my personal e-mail account and then the e-mail was as per something I think--as per our conversation or something or is this the right number to--is this the right e-mail address to contact you at. TC: Sir, at this time I request permission to approach. MJ: Very well. TC: I'm retrieving what has been marked as Prosecution Exhibit 6 for identification from the court reporter. I'm showing Prosecution Exhibit 6 for identification to defense counsel [showing PE 6 to Defense]. I'm handing Prosecution Exhibit 6 for identification to the witness [handing PE 6 for ID to the witness]. Q. Chief, do you recognize that? A. [Reviewing PE 6 for ID.] Oh, yeah.

Q. What is it? A. It was the making contact e-mail from the----

490 Q. Is that the e-mail that you---- A. Uh-huh. Q. ----previously referred to? A. Yes, it is, sir. Q. Does that e-mail look like it did when you received it in your Hotmail inbox? A. Yes, it does. Q. And has the e-mail been altered in any way? A. No. Looks just like this. Q. And what did you do with that e-mail when you received it? A. I just left it on my hotmail account. Q. Did you eventually print it out? A. I did when I--when eventually way, way down the line. It was a long time later that I did print it out. Q. And when you printed it out, is that what the printout looked like? A. Yes, it is. Q. So, in essence, that is the same printout that you printed out? A. Yes, sir. TC: Sir, at this time I'd offer what has been marked for identification as Prosecution Exhibit 6 into evidence and ask the words "for identification" be deleted.

MJ: Objection from the Defense? IMC: No, Your Honor.

491 MJ: There being no objection, Prosecution Exhibit 6 for identification is now admitted into evidence. The words "for identification" will be stricken from our court--by our court reporter, and you may publish the exhibit at an appropriate time. TC: Sir, I'd request now that the exhibit be published to the members. MJ: Very well. And you're going to do that through the use of the Elmo? TC: That's correct, sir. MJ: Members, your computer screens should be activated. If they are not, please raise your hand. [PE 6 was published electronically to the members and witness.] MEMBER [CDR TUCKER]: Can you rotate it 90 degrees to the right? MJ: And that was a question from Commander Tucker and other members. I think we need a little focus, too, Commander. Members, you'll also receive the actual exhibit when you deliberate. TC: Can all members see that fairly accurately? [All members indicated affirmative responses.] Q. Chief, can you see the exhibit on the television screen there in front of you? A. Yes, sir. Q. So you testified that this was the e-mail you received.

What did you believe the purpose of this e-mail was? IMC: Objection. Speculation.

492 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.

493 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.

494 Q. In that second phone conversation, what was discussed? A. Went back to I said the same--I think I said the same stupid line again. I said "If this is really for real, like I stated before, if there's no pictures, no proof, no videotape, no evidence, I don't want--I don't really believe it and I don't--you know, I'm not even buying into it." Q. Did you--was there any reference in that phone conversation by the caller to this e-mail that you had received previously from the other woman account? A. No, huh-uh. Q. So there was no--the caller didn't ask you if you had received the e-mail? A. No, huh-huh. TC: Request permission to approach, sir. MJ: Very well. TC: I'm retrieving--I'm retrieving what has been pre-marked as Prosecution Exhibit 7 for identification from the court reporter. I'm showing Prosecution Exhibit 7 for ID to the defense counsel [showing PE 7 for ID to Defense]. I'm now handing Prosecution Exhibit 7 for identification to the witness [handing PE 7 for ID to the witness]. Q. Chief, do you recognize that? A. [Reviewing PE 7 for ID.] Oh, yeah.

Q. What is that? A. This is another e-mail, the next one.

495 Q. And when was that e-mail received? A. September 28th. Q. Okay. And who was that e-mail from? A. From--still from "the other woman." Q. And does that document that you're holding in your hand there look to be the same representation as that e-mail you received on that date? A. Yes, it is. Q. And did you print out that e-mail some time later after receiving it? A. Yes, I did. Q. Does that document appear to be the printout that you printed out? A. Yes, sir. TC: Sir, at this time I'd offer Prosecution Exhibit 7 for identification into evidence and ask the words "for identification" be deleted. MJ: Objection from the Defense? IMC: No objection, Your Honor. MJ: There being no objection, Prosecution Exhibit 7 is now admitted into evidence and the words "for identification" will be stricken by the court reporter, and you may publish the exhibit as you desire.

TC: Sir, I desire to publish the exhibit now. MJ: Very well.

496 TC: I'm placing it on the Elmo. [PE 7 was published electronically to the members and witness.] Q. Chief, can you see the document in front of you there? A. Yes, sir. Q. Now, what was unique about this document? A. It says as per my request seeing is believing and that's when I got an eyeful. Q. Okay. So did you open the attachments to this e-mail? A. Yes, sir, I did. Q. And what did you see when you opened the attachments? A. I saw my spouse fully erect and looking like he had just had a great time. TC: Sir, at this time I request permission to approach. MJ: Very well. TC: I'm returning Prosecution Exhibit 6 and Prosecution Exhibit 7 to the court reporter and I'm retrieving Prosecution Exhibit 8 for identification from the court reporter. I'm showing Prosecution Exhibit 8 for identification to the defense counsel [showing PE 8 for ID to Defense]. I'm handing Prosecution Exhibit 8 for identification to the witness [handing PE 8 for ID to the witness]. Q. Chief, do you recognize that? A. [Reviewing PE 8 for ID.] Yes, sir.

Q. What there--what do you have there in front of you? A. Pictures of my spouse.

497 Q. When you say pictures, how many? A. Two pictures to be exact. Q. And are those two pictures the same pictures that you saw when you opened the attachments to the e-mail? A. Yes, sir. Q. And those are accurate depictions of those pictures you saw? A. Yes, sir. Q. Do they appear to be different in any way? A. No, sir. TC: At this time, sir, I'd offer Prosecution Exhibit 8 for identification into evidence and ask that the words "for identification" be deleted. MJ: Objection from the Defense? IMC: No objection, Your Honor. MJ: There being no objection, Prosecution Exhibit 8 for identification is now admitted into evidence and the words "for identification" will be stricken from the exhibit by our court reporter, and you may publish the exhibit at an appropriate time. TC: Sir, I'd like to publish the exhibit now. This contains sexually graphic material. I don't know if it's appropriate for the gallery to view it or not. MJ: Lieutenant--do you have a request of the Court, Counselor?

TC: I just raise that issue with the Court, sir. I'm prepared to publish the exhibit to the members, but----

498 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.]

499 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."

500 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.

501 Q. So that was the information that you saw and received from the e-mail; you didn't alter it in any way? A. No, I didn't. TC: At this time, sir, I request permission to approach. MJ: Very well. TC: I'm returning Prosecution Exhibit 8 to the court reporter and retrieving Prosecution Exhibit 9 for identification. I'm showing Prosecution Exhibit 9 for identification to defense counsel [showing PE 9 for ID to Defense]. I'm handing Prosecution Exhibit 9 for identification--it has two parts, part one of two and part two of two [handing PE 9 for ID to the witness]. Q. Chief, do you recognize that document? A. [Reviewing PE 9 for ID.] Yes, I do, sir. Q. How is it that you recognize that document? A. This still is a picture of my husband; and when we did the property thing, it showed the name, the author, and the company which is Home, which I guess is a home computer. Q. Is that an accurate depiction of what you saw on the computer screen when YN1 Cunningham helped you access the properties of the file? Q. Yes, it is. TC: At this time, sir, I'd offer Prosecution Exhibit 9 for identification into evidence ask the words "for identification" be deleted.

502 MJ: Objection from the Defense? IMC: No objection, Your Honor. MJ: There being no objection, Prosecution Exhibit 9 is now admitted into evidence. The words "for identification" will be stricken by our court reporter, and you may publish the exhibit at an appropriate time. TC: Sir, I'm publishing the exhibit to the members now. MJ: Very well. [Part one of PE 9 was published electronically to the members and witness.] Q. And, Chief, just briefly, you testified that's accurate. You--or you're not aware of anyone else besides yourself who authored this---- A. No, sir. Q. ----this properties? Now, before you had shown this--shown this PowerPoint slide presentation to YN1 Cunningham, had anyone else seen it? A. No, sir, just me. Q. Had you allowed anyone else control over it? A. No, sir. Q. So you had retained sole custody until you shared it with YN1 Cunningham? A. Uh-huh.

503 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.

504 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.

505 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,

506 "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.

507 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.

508 Q. To your knowledge, at this time--and just for time frame, we're now end of September, October. A. Uh-huh. Q. To your knowledge, was the relationship continuing at that point? A. From what he told me, it was over. Q. Did he tell you when it had ended? A. He said when he came back, he--when he came back to reconcile, he said "It's over, we're finished, we're done." Q. And he came back to reconcile when? A. This was in what--this was like September-October time frame. Q. Do you remember when in September? A. Not right off the top of my head, no, sir, I don't. Q. So is it possible that, based on what he told you, did you believe that he and Lieutenant Commander Penland were having sexual relations sometime in the month of September? A. They could have been, yes, sir. Q. And he had represented to you at this time that their relationship was over, but you later found that to--did you later find that to be accurate, or inaccurate I should say? A. I would say inaccurate because that's when he--that's-- later on I found out it was inaccurate, yes, sir.

TC: Request permission to approach, sir. MJ: Very well.

509 TC: I'm retrieving what has been marked as Prosecution Exhibit 10 for identification. I'm showing Prosecution Exhibit 10 for identification to the defense counsel [showing PE 10 for ID to Defense]. I'm handing Prosecution Exhibit 10 for identification to the witness [handing PE 10 for ID to the witness]. Q. Chief, do you recognize that document? A. [Reviewing PE 10 for ID.] Yes, sir, I do. Q. Can you please explain what it is. A. He was--this is when I told him if he had received any future e-mails from her and to just forward to me and let me see what is the status. He said since he's--he was trying to reconcile. He says, "Anything you want I'll do it. No problem. I just want us to stay together." So he started forwarding me e-mails that she was sending him. Q. And this was part of an agreement between you and your husband so that he would--being forthcoming with you? A. Yes, to be forthcoming, to say he was on the up-and-up. Q. And does this document look substantially the same as when you received it from your husband? A. Yes, it does. Q. Has it been altered in any way? A. Not to my knowledge.

TC: Sir, at this time I'd ask that Prosecution Exhibit 10 for identification be entered into evidence and the words "for

510 identification" be deleted. MJ: Objection from the Defense? IMC: No objection. MJ: There being no objection, Prosecution Exhibit 10 for identification is now admitted into evidence. The words "for identification" will be stricken by our court reporter, and you may publish the exhibit at an appropriate time. TC: I'm publishing it, the exhibit, to the members now, sir. MJ: Very well. [PE 10 was published electronically to the members and witness.] Q. Now, there is an attachment to this e-mail. Did you view that attachment? A. Yes, sir, I did. TC: Request permission to approach, Your Honor? MJ: You may. TC: I'm retrieving what has been marked as Prosecution Exhibit 11 for identification from the court reporter. I've retrieved Prosecution Exhibit for identification. I'm showing it to defense counsel [showing PE 11 for ID to Defense]. I'm handing Prosecution Exhibit 11 for identification to the witness [handing PE 11 for ID to the witness]. Q. Chief, what is that? A. [Reviewing PE 10 for ID.] This was a letter that she wrote telling him that if they were to get caught, how they would get out of it.

511 Q. Is this the attachment to that e-mail that is now being shown on the video monitor? A. Yes, sir. Q. And does--take a moment to look this through. Does this document appear to be the same document that you read when you opened the attachment to the e-mail that was sent to you by your husband? A. Yes, sir. Q. Why is it that you believe that this---- TC: At this time, Your Honor, I'd ask that Prosecution Exhibit 11 for identification be entered into evidence and the words "for identification" be deleted. MJ: Objection from the Defense? IMC: No objection. MJ: There being no objection, Prosecution Exhibit 11 for identification is now admitted into evidence. The words "for identification" will be stricken by the court reporter, and you may publish the exhibit. TC: I will not be publishing it at this time, sir. It's quite a lot of writing. I'll let the members look at it when they deliberate. Q. But just ask you a few questions, Chief. What was interesting about--well, first of all who did you believe this Word document was created by?

A. I believed it was--I believe that it was created by Lieutenant Commander Penland.

512 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.

513 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.

514 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."

515 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

516 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

517 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.

518 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.

519 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----

520 Q. And roughly what time frame is this? A. This was like right after I got--no. It was like--I don't remember the time. We went--I went over there to--I think I went over there to drop something off or check on something, to ask him about something in regards to the house that we owned in Temecula. So I walk onto the ship and I walk on there saying "I'm here to see Ensign Wiggan." And they were like "Who are you?" I said, "I'm Ensign Wiggan's wife." And they're like "Huh-uh." And this was the quarterdeck guy. He said, "You don't look nothing like his wife. You can't be his wife. We just saw her the other day. She don't look nothing like you." And I was like--so I pull out my ID card and I said, "Yes, I am this person." And he was like, "Huh-uh, no, no. We saw his wife the other day," and the guy was adamant, like I must have been lying. So when he came up to the quarterdeck and he said--he said, "Sir, who is this?" He said, "Oh, that's my wife." And so the guy on the quarterdeck was like, whoa, like he had said something that he shouldn't have said or he leaked something that he shouldn't have leaked and I was just like wow. Q. After the incident, at a later time did someone from the USS PRINCETON ever say anything to you about Fleet Week? A. Yes. I was---- Q. What was--tell us about that.

A. I was walking---- IMC: Objection. Hearsay.

521 MJ: Lieutenant Commander Messer? TC: Sir, it's offered for effect on the listener, not for the truth of the matter. MJ: Why is it relevant? TC: It goes to the witness' actions with respect to what her husband was doing and why she responded accordingly. It's with respect to their marriage, being separated and pursuing a divorce. MJ: Why don't we get the actions first. TC: Yes, sir. Q. So what happened? A. I was walking down the pier and, you know, having your utilities on, so your last name is posted on the back of the utilities. So this guy runs up to me and he's like, "Yeah, are you-- you Ensign Wiggan's wife?" I'm like, "Yeah." He was like, "Somebody told me you were his wife, but I didn't believe it." I was like, "Why don't you believe me?" He said, "We saw his wife at Fleet Week. She don't look nothing like you." I was like--I was like "What?" I said, "Well"--I said, "My ship didn't go to Fleet Week. I was here. We were sitting on the pier during Fleet Week in San Francisco." He was like, "Well, I'm telling you, I saw her and you don't look nothing like--you don't look nothing like the woman we saw at Fleet Week. You're not her." I was like, "I am--I am his wife. I'm not going to make it up." I said, "Yeah, I'm his wife." He was like, "No. You're not dark skinned, you're not" da-da-da-da-da. And this was just a fireman that worked on the ship. He was like, "No. You're not his

522 wife. We met his wife at Fleet Week. That's not you." Q. Was this someone who worked for your husband? A. Yeah, uh-huh. It was just one of the little firemen, and one of the guys I guess told him I was on the next ship over. Q. Now, did you receive any more e-mails from Lieutenant Commander Penland? A. I may or may not have. I'm not really sure. I can't remember the time frame. TC: Request permission to approach, Your Honor. MJ: Very well. TC: I'm retrieving what has been marked as Prosecution Exhibit 13 for identification. I'm showing Prosecution Exhibit 13 for ID to the Defense [showing PE 13 for ID to Defense]. I'm handing Prosecution Exhibit 13 for identification to the witness [handing PE 13 for ID to the witness]. Q. Chief, do you recognize that? A. [Reviewing PE 13 for ID.] Oh, yeah, I remember this one. Q. How do you recognize that? A. This is the--I guess wanted to know about the truth. This was in December. Q. And is that e-mail in the same format as when you received it on that date? A. Yes, it is.

Q. And has it been altered in any way? A. No, it has not.

523 Q. And does that appear to be an accurate depiction of that e-mail? A. Yes, sir. Q. You printed that e-mail out? A. Uh-huh. TC: Sir, at this time I'd offer what has been pre-marked as Prosecution Exhibit 13 for identification into evidence and ask the words "for identification" be deleted. MJ: Objection from the Defense? IMC: No objection, sir. MJ: There being no objection, Prosecution Exhibit 13 for identification is now admitted into evidence. The words "for identification" will be stricken by the court reporter, and you may publish the exhibit at an appropriate time. TC: Thank you, sir. I'm publishing it now. [PE 13 was published electronically to the members and witness.] Q. Chief, the subject of this e-mail was "Truth." What did you believe that to be in reference to? A. I thought this was in reference to the--she had said that she had had a miscarriage prior to this on the phone conversation. Q. So let me just set the time line here. A. Uh-huh. Q. You had had lunch sometime around the PRINCETON change of command. A. Uh-huh.

524 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

525 obviously--maybe you all really want to be together, so I'm going to let it go." So he had moved back into the house because--and I said, "Look. You pay mortgage, I pay mortgage. I cannot rightfully tell you "You can't live in your house." He was living in one room. I was living in the other room. And we're talking about how we're going to take care of everything and move on our separate ways, and then I get this e-mail. I don't know if they had been on the outs or whatever. I really don't know. But I get this e-mail to my job and on the ship when I thought I was pretty much done with the whole situation. It was about the truth in regards to their relationship and her and him and this second baby they was supposedly having. TC: Request permission to approach, sir? MJ: Very well. TC: I'm retrieving what has been marked as Prosecution Exhibit 14 for identification. I'm showing what has been marked as Prosecution Exhibit 14 for identification to the defense counsel [showing PE 14 for ID to Defense]. I'm handing Prosecution Exhibit 14 for identification to the witness [handing PE 14 for ID to the witness]. Q. Chief, do you recognize that e-mail or do you recognize that? A. [Reviewing PE 14 for ID.] Yes, sir, I do. Q. And what is it?

A. This was me. I e-mailed her back and----

526 Q. Well, what's the time frame wise in relation to the e-mail that's on the screen? When was it? A. That was--this was the 24th. It was like the next day. Q. And does that e-mail appear to be an accurate depiction of the e-mail you received on that date? A. Yes, sir. Q. Has it been altered in any way? A. No, sir. Q. And did you print that e-mail out subsequent to receiving it? A. After I received it, printed it up for Commander Doud, yes. TC: Sir, at this time I'd ask that Prosecution Exhibit 14 for identification be entered into evidence and the words "for identification" be deleted. MJ: Objection from the Defense? IMC: No, Your Honor. MJ: There being no objection, Prosecution Exhibit 14 for identification is now admitted into evidence. The words "for identification" will be stricken by the court reporter, and you may publish the exhibit at an appropriate time. TC: I've retrieved Exhibit 14 from the witness. I am now publishing it to the members. MJ: Very well.

[PE 14 was published electronically to the members and witness.]

527 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----

528 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

529 much that in regards to I also, in addition to that, I was saying, hey, don't e-mail anymore, as well. TC: Sir, request permission to approach? MJ: Very well. TC: I'm returning Prosecution Exhibits 13 and 14 to the court reporter. I'm retrieving Prosecution Exhibit 15 for identification from the court reporter. I'll also retrieve Prosecution Exhibit 16. I'm showing Prosecution Exhibits 15 and 16 for identification to defense counsel [showing PE 15 and 16 for ID to Defense]. I'm handing Prosecution Exhibit 15 for identification to the witness at this time [handing PE 15 for ID to the witness]. Q. Chief, do you recognize that? A. [Reviewing PE 15 for ID.] Yes, I do. Q. How is it that you recognize that document? A. This was a part of the giving me the information about the truth. Q. I'm sorry. I missed that. It's---- A. This is information in regards to the truth e-mail. She was sending me information. Q. So this is a response to an e-mail chain that was---- A. Yes. Q. ----that ties in with those other prosecution exhibits? A. And as well as a conversation that we had on the phone.

530 Q. And what was unique about this e-mail that was sent? I'm sorry. Before you do that, does that e-mail look to be the same as the e-mail you received on that date? A. Yes, uh-huh. Q. And has it been in any way changed or---- A. No. Q. ----reformatted? A. Huh-uh. Q. And is this--does this appear to be the printout, that it appears you printed this out on your NMCI account? A. Yes. TC: At this time, Your Honor, I would offer Prosecution Exhibit 15 for identification into evidence and ask the words "for identification" be deleted. MJ: Objection from the Defense? IMC: No, Your Honor. MJ: There being no objection, Prosecution Exhibit 15 for identification is now received by the Court and admitted into evidence. The words "for identification" will be stricken by the court reporter, and you may publish the exhibit at an appropriate time. TC: Publishing--I've retrieved Exhibit 15 from the witness and I'm publishing it at this time. It may be a bit too voluminous to show on the Elmo, but I'll attempt. [PE 15 was published electronically to the members and witness.]

531 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.

532 Q. And the first one occurred when? A. The first one was back in when I first--when I first--in like September-October time frame. Q. And the second one was closer to the holidays? A. Yeah. The second one was supposed to be around November time frame. TC: Request permission to approach the witness, Your Honor? MJ: Very well. TC: I'm handing to the witness Prosecution Exhibit 16 for identification [handing PE 16 for ID to the witness]. It's been previously shown to defense counsel. Q. Chief, do you recognize--do you recognize that? A. [Reviewing PE 16 for ID.] Yes, I do. Q. What is that? A. This is the e-mail from her to me and him, and he had a Yahoo account because he's from Jamaica, so it's about being a dread to a certain extent. Q. Does the e-mail look to be an accurate depiction of what you received on that date? A. Yes. Q. And you printed out that e-mail and that's an accurate reflection of what you printed out? A. Yes, it is.

TC: At this time, Your Honor, I'd offer into evidence Prosecution Exhibit 15 for identification--or I'm sorry--16 for

533 identification and ask the words "for identification" be deleted. MJ: Objection from the Defense? IMC: No, Your Honor. MJ: There being no objection, Prosecution Exhibit 16 for identification is now admitted into evidence. The words "for identification" will be stricken by the court reporter, and you may publish the exhibit at an appropriate time. TC: Thank you, sir. I've retrieved Exhibit 16 from the witness and I'm now publishing the exhibit to the members. MJ: Very well. [PE 16 was published electronically to the members and witness.] Q. Now, this e-mail is sent from an address---- A. Yes. Q. ----at BlackHeaven01Yahoo.com. A. Yes. Q. Who do you believe that e-mail to belong to? A. It's from Syneeda Penland, from Lieutenant Commander Penland. That's her personal e-mail address. Q. And [email protected], who is that person? A. That is Mark's e-mail address. Q. And the subject title, "Hang in there," what are they--what is the purpose of saying "Hang in there"? A. This is in regards to our relationship and how----

Q. Specifically what? What was going on? A. ----how it was ending.

534 Q. What had happened at that point to precipitate this e-mail? A. At that point, to precipitate that e-mail, I had seen the e-mail--I think there was an e-mail either before or after this in regards to--he sent her an e-mail in regards to--in regards to their child, he would take responsibility for it. So he acknowledged it. And she forwarded me that e-mail so that I could see it, that he acknowledges that there is a child between the two of them. TC: Sir, may I approach? MJ: You may. TC: I'm retrieving from the court reporter what has been pre-marked as Prosecution Exhibit 19 for identification. I'm showing Prosecution Exhibit 19 for identification to witness--or excuse me--to the defense counsel [showing PE 19 for ID to Defense]. I'm handing Prosecution Exhibit 19 for identification to the witness [handing PE 19 for ID to the witness]. Q. Do you recognize that, Chief? A. [Reviewing PE 19 for ID.] Yes, I do. Q. And what is that? A. This was the e-mail that she forwarded me from her Yahoo account that he sent her. Q. And that was the e-mail--and is that the e-mail--does that e-mail look to be an accurate depiction of the way you received it on that date?

A. Yes, sir.

535 Q. Has it been altered in any way? A. No, sir. Q. And you printed out that e-mail and it looks as it did when you printed it out? A. Yes, sir. TC: Sir, at this time, Your Honor, I'd offer into evidence Prosecution Exhibit 19 for identification and ask the words "for identification" be deleted. MJ: Objection from the Defense? IMC: No, Your Honor. MJ: There being no objection, Prosecution Exhibit 19 is now received into evidence. The words "for identification" will be stricken by our court reporter, and you may publish the exhibit at this time. Q. Now, you referenced an e-mail in response to the prior e-mail. It this the e-mail that you're talking about? A. Yes, sir. Q. And what of note is important about that e-mail? A. That he acknowledged that they were having a child and that he wouldn't go anywhere and she again found him on NKO account and his number is till the same. Q. And why do you believe that the BlackHeaven at--well, first of all, BlackHeaven01@Yahoo I think we established that you believe that to be Lieutenant Commander Penland? A. Because it was on the other----

536 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.

537 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.

538 Q. So it was at that point, what did you believe the likelihood of your marriage surviving would be? A. There was no likelihood whatsoever. It was officially over. In my mind, if the court didn't say it, I was done. I figured he do that, I don't know what else is going on, so---- TC: Sir, request permission to approach. MJ: Very well. TC: I'm returning to the court reporter what has been entered into evidence as Prosecution Exhibits 15, 16 and 19. And I'm retrieving Prosecution Exhibits 1 and 2 for identification. Q. Now, at some point prior to the events that we just recounted in January, did you--did you go on your husband's laptop computer? A. Yes, I did. Q. When was that? A. It was around--it was like--I think it was the 4th, the afternoon of the 4th before everything just kind of exploded. Q. So it was the 4th of January---- A. Yeah. Q. ----or the 4th of December? A. Oh, no. This was like--this was like December--no, it was like January, January time frame. Q. So it was after the holidays?

A. Yes, through the holidays because he was back at the house, staying there, like I said, pay mortgage, so.

539 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.

540 Q. Is it possible it could have been the name of the camera or the camera company? A. It could have been; Olympic, yeah, it could have been that, as well. I just thought of D.C. Olympics when I saw it. TC: Request permission to approach the witness, Your Honor? MJ: Very well. TC: I'm handing to the witness what has been marked for identification Prosecution Exhibit 1 for identification [handing PE 1 for ID to the witness]. Q. Chief, do you recognize that? A. [Reviewing PE 1 for ID.] Yes, sir. Q. How do you recognize that? A. These are all those photos that's on that file. Q. Is that an accurate depiction of what you saw when you opened that folder? A. Yes, sir. Q. Have those photos in any way been altered as to what they looked like at that time? A. No, sir. Q. And you find that to be a fair and accurate depiction of what you saw? A. Yes, sir. TC: Request permission to approach, Your Honor?

MJ: Very well.

541 TC: I'm now retrieving Prosecution Exhibit 1 for identification from the witness. I'm handing Prosecution Exhibit 2 for identification to the witness [handing PE 2 for ID to the witness]. Q. Chief, just briefly look through those. A. [Reviewing PE 2 for ID.] Q. Do you recognize that? A. Yes, sir. These are the same photos that are on there. Q. What's different between those photos and the photos I just showed you in Prosecution Exhibit 1? A. There's no difference. They're just blown up full size photos. TC: Sir, at this time I'd offer into evidence Prosecution Exhibits 1 and 2 for identification. I'd ask that the words "for identification" be deleted. MJ: Objection from the Defense? IMC: Yes, sir. Sir, the Defense objects to authenticity and requests a 39(a) session so that we address the issue. MJ: Very well. Members, this would be an appropriate time for a brief recess for you. If you would please cover your notes. Subject to my standard instructions, you may depart on recess. Please reassemble at 1130 hours. BAILIFF: All rise. [All persons did as directed, and the members withdrew from the courtroom.] [The court-martial recessed at 1122 hours, 22 May 2008.]

542 [The Article 39(a) session was called to order at 1123 hours, 22 May 2008.] MJ: Please be seated. [All persons did as directed.] MJ: This 39(a) session is called to order. Let the record reflect the members have departed from the courtroom. Captain Callahan? IMC: Yes, sir. Sir, the Defense objects to the authenticity of the photographs. I have two cases that I'd like to provide the Court, as well. The first one is United States v. Riggendahl [ph], and I have copies of both of them and I'll provide them to the Court and counsel. But that case deals with the admittance of photos and a requirement that for photographs to be admitted in court, there has to be a witness present to testify that the photographs are a true and accurate depiction of what they purport to depict. That is not present in this case. That is an older case and the court has since modified that standing somewhat that it's still one way that is acceptable to present photographic evidence to the court. But the court has also adopted what's called a "silent

witness theory" which comes from United States v. Harris and that the pictures can be treated as a witness themselves without having somebody come in to testify that the pictures--that they were there when the photos were taken and the photos are a true and accurate depiction of what they purport to depict. However, what the court in

543 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?

544 IMC: I do not, sir, other than Lieutenant Wiggan's testimony that it's not him and it was never him in those photos and didn't have sex in those photos. And if it is him in those photos, it's him in Hawaii. MJ: Thank you, Counselor. Lieutenant Commander Messer, the Government response? TC: Sir, the Government's position is that I've laid an adequate foundation, that the witness has testified that the matter in question is what the proponent claims and that she found these photos on her husband's computer. She's testified that the images that she saw on the computer are the same images that have been presented here in court and that that was an accurate depiction. The Government would admit that we obviously do not know when the photos were taken. We cannot say what type of a camera they were--I shouldn't say that. We cannot say the--have the person who photographed those images here in court to testify as we don't know who did that. But with that said, to authenticity, that's a question for the members as to how--once we get over that threshold that this witness can certify that, "Yes, that's what I found on the laptop, it is what it is," then it's up to the members as to how much weight they give that evidence. Obviously from the Government's perspective it would be fantastic if we could have the person that was photographing it come in and say, "Yeah, I photographed it with this camera and this is a

545 reliable camera." We don't have that luxury. It still doesn't mean that the photographs don't come in. We've come--we can overcome the authenticity hurdle and that this witness will testify that they're authentic as to how she found it and that should be enough. In addition, if I'd be allowed to lay more foundation, this witness will be able to identify both Lieutenant Commander Penland and her husband in some of those photos offered. MJ: That would be helpful for the Court, and why don't you lay the foundation now. TC: Yes, sir. Questions by the trial counsel: Q. Chief, do you still have in front of you what has been marked for identification as Prosecution Exhibit 2? A. Yes. TC: And just for the sake of--since we're in a 39(a), sir, I'll be putting these up on the Elmo, so all parties can see what photos I'm referring to. MJ: Very well. Q. I'm going to show you what has been marked as Photograph P-4 of the 52 images. [Placing Photo P-4 on Elmo.] If you could just please look on the screen or just go to P-4 in the exhibit in front of you. A. Uh-huh.

Q. Do you recognize that person? A. Yes, sir.

546 Q. How is that--who is that person? A. That's Lieutenant Commander Penland. Q. And how is it that you can recognize that? A. I recognized her from the day that we went to--when we were at the Island Spice, she had on a short sleeve shirt, so her arms were bare and that's the same tattoo. Q. And is there any other--anything else in that photo that makes--that puts you on notice that that's Lieutenant Commander Penland? A. And her red fingernail polish. She tends to like red; I have no idea why. But it was definitely the tattoo more so than anything else. Q. I now direct your attention to what has been labeled as P-28 [placing Photo P-28 on Elmo]. Do you recognize who that person is? A. Yes, sir. Q. How--and who is that person? A. That's Lieutenant Commander Penland. Q. And how is it that you recognize her? A. I recognize her face and I also remember she said she had breast surgery done. Q. Okay. I'm now showing---- A. And the tattoo on her arm is still there, as well.

547 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.

548 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?

549 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.

550 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.

551 Q. I'm showing you P-26 [placing Photo P-26 on Elmo]. Do you recognize who that person is? A. That's Lieutenant Commander Penland. Q. How do you recognize that person as Lieutenant Commander Penland? A. I remember from the tattoo on her arm and the little bracelet. Q. And is there anything significant about the fingernails? A. Yeah, red. Every time I'm--the one time I met her, any time after that it was red fingernail polish. TC: I'd also note for the court, too, that they note the fingernails because we believe that's a factor in many of the photographs where you can't identify either of the individuals, but you can use--well, you can't identify via the body parts, but when you compare the fingernails in various pictures, you can link it back to Lieutenant Commander Penland. Q. And then I'm showing you what has been marked as P-16 [placing Photo P-16 on Elmo], and that is--well, how do you recognize that--who do you recognize in that photo? A. That's Lieutenant Commander Penland's fingernails and that's Lieutenant JG Wiggan's genitalia because he still has the little mole right there. Q. And how is that you came to observe Commander Penland's fingernails?

552 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.

553 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.

554 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

555 the witness and then printed the photos out and that the photos he received and the printout he made appeared to be the same and an accurate depiction of what he had received. MJ: Captain Callahan, do you still renew your authenticity objection? IMC: I do, sir, and that line of questioning doesn't do anything for it because again the courts allow two ways for these to come in: One, for somebody who is actually there to come in and testify and authenticate it, which they could use, you know, somebody--if these actually happened like they said, they could use Lieutenant Wiggan. But he says, "No, it wasn't me, didn't do it." So they cannot come in under that way. The second way they can come in is under the silent witness theory; and again, under the silent witness theory, the court requires that there be proof as to the authenticity of them, proof by the proponent of the evidence, that is, that they're accurately recorded, their equipment used, that the equipment was properly functioning and that they hadn't been altered with in any way. And we're lacking any evidence as to what equipment was used to record these, that that equipment was properly working and any sort of expert testimony as to the fact that these pictures have not been altered. So there's--under case law, these pictures are simply not authentic for the purposes of being admitted to determine that is, in fact, my client and someone else engaged in sexual acts. MJ: Lieutenant Commander Messer, anything further?

556 TC: Nothing further, sir. MJ: Very well. The Court's going to take a brief recess in a moment to review the issue and issue a ruling when we return. Approximately how much longer do you anticipate your direct examination for this witness? TC: One moment, sir. Fifteen minutes maximum, sir. MJ: Very well. Court stands in recess. Please reassemble at 10 minutes to the hour. Carry on. [The session recessed at 1140 hours, 22 May 2008.] [The session was called to order at 1154 hours, 22 May 2008.] MJ: This 39(a) session is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time except for our members who remain in the deliberation room. Counsel, are there any other matters you'd like to discuss concerning the authentication objection concerning the photos? TC: No, sir. IMC: No, Your Honor. MJ: Very well. The Defense objection is noted and overruled. The Court finds that an adequate foundation has been laid for the photographs. There's no indication that the photographs were altered in any manner. The concerns raised by the Defense go to the weight to be assigned to the photographs and those matters certainly may be raised by the Defense on cross-examination of the witness.

557 Therefore, Prosecution Exhibits 1 and 2 for identification are now received into evidence by the Court and the words "for identification" will be stricken by our court reporter, and you may publish the exhibits at an appropriate time. Other matters we need to address outside the members' presence? TC: No, sir. IMC: No, Your Honor. MJ: Very well. Bailiff, please ask the members to rejoin our court. TC: Sir, first I'd ask that the witness be put back on the stand. MJ: Okay. You can bring her back if you want. TC: I'll just go grab her before you get the members. MJ: This 39(a) session is concluded. [The witness reentered the courtroom and resumed her seat at the witness stand.] MJ: Captain, about how long do you anticipate for cross? IMC: I would guess around 15 minutes, sir. MJ: Oh, okay. Then we have no need for a lunch recess before then. Very well. Bailiff, please ask the members to rejoin the court.

BAILIFF: Yes, sir. [The Article 39(a) session concluded at 1157 hours, 22 May 2008.]

558 [The court-martial was called to order at 1157 hours, 22 May 2008.] MJ: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others may be seated. [All persons did as directed.] MJ: Chief, I remind you you remain under oath for your continued testimony. Lieutenant Commander Messer, further questions for this witness? TC: Yes, sir. At this time I'd request that Prosecution Exhibit 1 be published to the members. MJ: Very well. TC: I'm publishing Prosecution Exhibit 1 to the members. [PE 1 was published electronically to the members and witness.] Q. Chief, I'm showing you what is Page 1 of Prosecution Exhibit 1 that's been entered into evidence. Is that an accurate depiction of what you saw when you opened that e-mail folder on your-- or excuse me--that folder on your husband's computer? A. Yes, sir, it is.

559 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.

560 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.

561 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.

562 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.

563 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

564 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.

565 Q. So you believe that to be Lieutenant Commander Penland's body on the left-hand side? A. Yes, I do. Q. Just based on the nails? A. Uh-huh. Yes, I do. Q. And you had the opportunity to review all these photographs, correct? A. Yes, I did. Q. Did you see those red fingernails in many of the other photos? A. Yeah, they're in almost every photo. Q. Did you see anything in these photos that would indicate to you that the people photographed were not your husband and the accused in this case? A. No, I didn't. Q. Chief, I'll move on, just finish up here. What effect has--did this episode have on you from the time when you were first contacted by a person calling themselves Lieutenant Commander Finland until when you and your husband finally decided to divorce? What kind of toll did this take on you? IMC: Objection. Relevance. MJ: Lieutenant Commander Messer? TC: Sir, I would say that it goes--it's relevant in that it goes to the effect that the conduct of the accused had on this Sailor and would go to the conduct unbecoming specification, Specification 1

566 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.

567 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

568 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

569 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

570 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.

571 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

572 talking about and you--I'm not going down." And I was like, "Hey." I said, "Well, let me tell you what my commanding officer told me to tell you the next time you called me on the phone." She was like "What's that?" Okay. Click, and I hung the phone up. TC: Request permission to approach, sir. MJ: Very well. TC: I'm retrieving Prosecution Exhibit 18 from the court reporter. Request permission to publish Prosecution Exhibit 18 to the members, sir. MJ: Very well. [PE 18 was published electronically to the members and witness.] Q. Chief, I want you to take a look on your monitor. This is Prosecution Exhibit 18. It's the cell phone records for the phone number (619) 862-1559, the 1st of February until the 28th of February. And I know it's very hard to read. I'm going to try to zoom in as much as possible. Do you see on the portion of the record I'm showing you there--and just for the record this is--well, it's marked at the top as Page 22 of 78 of Prosecution Exhibit 18. You see several calls listed there. Do any of those numbers appear to be your number, your cell phone number? Can you see that clearly? Or let me direct you---- A. [Reviewing PE 18.] Yes, I see. I see my number on there. Q. I'm going to direct your attention to line items 453---- A. Yes.

Q. ----454, 455 and 456. A. Yes. That's my phone number.

573 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.

574 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.

575 Q. So that would have been the 22nd of February? A. Uh-huh. TC: All right. Chief, thank you very much. I have no further questions. MJ: Captain Callahan. IMC: Thank you, Your Honor. CROSS-EXAMINATION Questions by the individual military counsel: Q. Good afternoon, Chief. A. Good afternoon, sir. Q. Chief, isn't it true you also called--you called Commander Penland quite a few times? A. And, sir, yes, I testified to that. Yes, I did. Q. Some of those calls were pretty long calls, too, weren't they? A. Yes, sir. Some of them were plenty long calls. Q. And, Chief Wiggan, your testimony here today was you found the photographs on your husband's computer and you placed them onto a thumb drive, correct? A. That is correct, sir. Q. And from the thumb drive you placed them onto your computer, your personal computer? A. I did eventually put them on the laptop, yes, I did.

576 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.

577 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?

578 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

579 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?

580 A. Sir, I wouldn't have let anybody drink and drive. I don't care how I feel about you; nobody's drinking and driving, not around me, no. IMC: Thank you. No further questions. WIT: You're welcome. MJ: Lieutenant Commander Messer? REDIRECT EXAMINATION Questions by the trial counsel: Q. Chief, just a couple quick follow ups. To your knowledge, were you ever legally separated from your husband? A. No, sir, I was not ever legally separated from my husband. We had filed for divorce, but we were never legally separated. Q. And we've heard lots of testimony about the status of the relationship with your husband, but when you guys reconciled in mid- September, did you begin a sexual relationship again? A. Yes, in mid September. Q. And how long did that sexual relationship continue? A. Maybe till about October, October time frame. Q. And then did--after October, did you reengage again---- A. No. Q. ----or was that the end? A. No. Q. So from mid September until October you were involved in a sexual relationship with your husband. And during that period would you say you were acting like a couple?

581 A. Yes, we were. We even went looking for new houses and stuff like that and shopping and stuff like normal married couples do. TC: Thanks, Chief. I have no further questions. WIT: No problem, sir. MJ: Captain Callahan? IMC: Briefly, Your Honor. RECROSS-EXAMINATION Questions by the individual military counsel: Q. Chief, when you were--on the day you discovered the photographs that was early January? A. Yes, sir. Q. Did you call Commander Penland the next day to discuss the fact that her husband--your husband had tried to kill you? A. That's when the "Hang in there" e-mail came right after that. Q. So you did call her that morning and discuss it with her? A. No. Actually he was talking to her and he called her on the phone and then I--then he gave me the phone---- Q. Do you recognize---- A. ----and then I spoke to her on the phone. Q. So you spoke to her on the phone? A. Yeah, because he gave me the phone and I spoke to her on the phone.

Q. Do you recognize the phone number (951) 679-8084? A. That's our house phone.

582 Q. That's your house phone? A. Uh-huh. That was the house phone we had. He called her. IMC: Thank you. WIT: You're welcome. MJ: Lieutenant Commander Messer? TC: Nothing further, sir. MJ: Questions from our members? Negative response from all panel members. [The witness was duly warned, temporarily excused and withdrew from the courtroom.] MJ: Further evidence from the prosecution on the merits of this case? TC: Sir, the Government would call Mr. Brian Duffy. MJ: You want to recall Mr. Duffy. Approximately how long do you anticipate his testimony? TC: Ten minutes, sir. MJ: Very well. Bailiff, please call the witness back. [The prospective witness entered the courtroom.] IMC: Sir, if I may, there's a 39(a) session. I have an issue I need to address with the Court immediately, with the Court's permission. MJ: Very well. Members, please cover your notes. Subject to my standard instructions, please depart the courtroom and remain in the deliberation area.

583 BAILIFF: All rise. [All persons did as directed.] MJ: Members may depart. [The members withdrew from the courtroom.] [The court-martial recessed at 1230 hours, 22 May 2008.] [END OF PAGE]

584 [The Article 39(a) session was called to order at 12130 hours, 22 May 2008.] MJ: Please be seated. [All persons did as directed.] MJ: This 39(a) session is called to order. Let the record reflect that the members have departed from the courtroom. Captain Callahan? IMC: Sir, my client has informed me that she would like to relieve me of my duties in representing her and request that I bring that to the Court's attention immediately. So I am bringing it to the Court's attention so the Court can act on it, as the Court sees fit. MJ: Very well. Lieutenant Commander Penland, is that your desire? ACC: Yes, sir, it is. MJ: Have you had an opportunity to discuss this matter with your defense counsel? ACC: I just discussed it, sir, during the cross-examination of Chief Wiggan. There was specific information concerning detailed information about the phone records and he failed to ask her the information. I went over it with him repeatedly and he still failed to cross-examine her, and I am---- MJ: Okay. Why don't we take another opportunity here for a recess. If you could discuss this matter with him and see if you can reach some sort of compromise or agreement. If not, I'll give you

585 additional time to discuss relieving your counsel, if you can procure the services of a--or at least some advice from another individual counsel. But also you have the option to proceed by yourself and that certainly is one option that's available; there's certainly many pitfalls to that choice. So we'll take a recess here. In fact, we'll take a lunch recess. I'll ask the members to rejoin us and at that time I'll place them in a lunch recess and give you some additional time to explore those options and also to discuss this matter further with your defense counsel. ACC: Yes, sir. MJ: Anything else we need to discuss outside the members' presence? TC: No, sir. IMC: No, Your Honor. MJ: Very well. Bailiff, if you would please ask the members to rejoin the court. This 39(a) session is concluded. BAILIFF: Yes, sir. [The Article 39(a) session concluded at 1232 hours, 22 May 2008.] [END OF PAGE]

586 [The court-martial was called to order at 1232 hours, 22 May 2008.] TC: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Members, this matter is going to take some additional time. Therefore, I think it's appropriate to send you on a lunch recess, and when you do return, we'll determine what further evidence can be produced for your consideration. If we could reassemble at 1330 hours. Subject to my standard instructions, if you would please cover your notes, members. You may depart on a lunch recess. BAILIFF: All rise. [All persons did as directed.] MJ: The members may depart. [The members withdrew from the courtroom.] MJ: Court stands in recess. Counsel, if we could reassemble in my chambers at 1300 hours for an 802 conference.

[Mr. Duffy was excused and withdrew from the courtroom. [The court-martial recessed at 1233 hours, 22 May 2008.]

587

[The Article 39(a) session was called to order at 0814 hours, 23 May 2008.] MJ: Good morning. This 39(a) hearing is called to order in the case of the United States v. Lieutenant Commander S. L. Penland, Supply Corps, United States Navy. Let the record reflect that all parties present prior at the last session of court are present before the Court this morning, except for the members who remain in the deliberation room obviously for this 39(a) session. Let me verify that Lieutenant Commander Penland is present before the Court, attired in the appropriate uniform with all the awards and decorations she's entitled to wear. IMC: She is, Your Honor. MJ: Thank you, Captain Callahan. MJ: Good morning, Lieutenant Commander Penland. How are you doing today? ACC: Just fine, sir. MJ: Very good. Let me put on the record a number of matters that have transpired since our last session. Before the lunch recess, Lieutenant Commander Penland indicated she wanted to relieve Captain Callahan as her defense counsel. I encouraged her to discuss that matter further with him, and I hope you've had an opportunity to do so. Have you had that

588 opportunity, Commander? ACC: Yes, sir, I have. MJ: Very good. Do you need more time to discuss this matter with him? ACC: No, sir, I don't. MJ: Also, after the recess, for that purpose and others, it was brought to the Court's attention that Captain Callahan and others had concern for Lieutenant Commander Penland's safety. Apparently there was some concerns that she might harm herself, and the Court suggested to the parties that her command be apprised that an appropriate medical examination be offered, as necessary, to make a determination as to whether Lieutenant Commander Penland needed further assessment and treatment. Apparently that was also accomplished during the recess yesterday, and the Court has received Appellate Exhibit forty---- REPORTER: XLII. MJ: ----XLII, indicating that Lieutenant Commander Penland was offered assistance from the command medical officer or further assistance at the Navy hospital here in San Diego and declined that assistance. So we'll discuss that in a little more detail this morning to make sure that you're feeling up for this trial. We also discussed other issues concerning Captain Callahan's continued representation of Lieutenant Commander Penland and some of the options that remain should she desire to relieve him from his responsibilities at this general court-martial. Counsel concur with my summation of our 802 conference from

589 yesterday afternoon? TC: Yes, sir. IMC: Yes, Your Honor. MJ: Very well. I suppose I'll start with the basic question. Lieutenant Commander Penland, do you still wish to relieve Captain Callahan as your defense counsel? ACC: Yes, sir, I do. MJ: And you've discussed this matter thoroughly with him? ACC: Yes, sir, I have. MJ: Have you discussed this matter with any other attorneys who might be able to provide you legal advice concerning his relief? ACC: No, sir, I have not. MJ: Did you have an opportunity yesterday to make such consultations if you desired to do so? ACC: No, sir, I have not. MJ: I believe you indicated yesterday during our last session on the record that you had some concerns about Captain Callahan because he did not ask questions that you felt were pertinent concerning phone records. Is that substance of what you said? ACC: Along with other issues, sir. MJ: Very well. We can get to that in a moment. The first thing I wanted to make sure, though, is that you fully appreciate and understand the consequences of your decision to relieve Captain Callahan and also I must be satisfied that you are competent to make decisions concerning his relief. Understood?

590 ACC: Yes, sir.

MJ: Have you had an opportunity to discuss these matters with him, as well? ACC: Yes, sir, I have. MJ: Well, let's just talk about in general terms, and I don't want to get into your specific medical history. But with regard to your ability to make these decisions, do you feel that you have the ability to make these decisions? ACC: Yes, sir, I do. MJ: And what makes you feel that you are competent to make these decisions on your own behalf? ACC: I don't see no reason that I appear to be incompetent to make these decisions, sir. MJ: Are you presently under any mental or physical disability that would preclude you from making such decisions? ACC: No, sir, I'm not. MJ: Have you ever had any history or treatment of any sort of mental or physical disability that would preclude you from making these decisions? ACC: No, sir. MJ: You understand the nature and purpose of this court- martial?

ACC: Yes, sir, I do. MJ: In your view, what is that purpose?

591 ACC: The purpose of this court-martial? MJ: Correct. ACC: That I have been brought up on charges for alleged adultery---- MJ: And it's---- ACC: ----and other charges, so---- MJ: And so it's to examine whether there is sufficient evidence to support the charges that have been brought against you? ACC: Yes, sir. MJ: And do you understand the nature of the trial process? ACC: Yes, sir, I do. MJ: Are you presently taking any medication that would inhibit your ability to make sound judgments concerning the representation of this case? ACC: If you can give me a list of those medications and if I understand the side effects of those medications, I could probably answer that question thoroughly. But right now, sir, I can't answer that question. MJ: Well, I don't think I can answer your question, as well, since I'm not a medical officer. Are you taking medications that has been prescribed for you that have side effects that impair your judgment? ACC: No, sir.

MJ: Are you under the influence of any drugs or medications or alcohol that would impair your judgment at this trial?

592 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

593 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

594 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

595 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

596 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.

597 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.

598 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?

599 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

600 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

601 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

602 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.

603 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

604 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,

605 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?

606 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

607 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

608 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?

609 Lieutenant Commander Messer? TC: No, sir. MJ: Captain Callahan? IMC: No, Your Honor. MJ: Very well. Court stands in recess. Please reassemble at 0900 hours. Carry on, please. [The session recessed at 0846 hours, 23 May 2008.] [The session was called to order at 0911 hours, 23 May 2008.] MJ: The court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time; the members, however, remain absent from the courtroom for this session. Lieutenant Commander Penland, is there anything else you'd like to address the Court concerning the issues we've discussed this morning? ACC: No, sir. MJ: Very well. Given Appellate Exhibit XLII and the extensive discussions conducted on the record here with Lieutenant Commander Penland, the Court finds no substantial basis to question her competence to make decisions concerning this courts-martial. Lieutenant Commander Penland, what is your decision concerning the representation of Captain Callahan? ACC: Sir, I still stand firm to request to have Captain Callahan relieved as defense counsel. MJ: Very well. With regard to your request for recusal of the

610 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

611 basis for additional continuance to procure yet another defense counsel of your choice. Lieutenant Commander Penland, that leaves you with those three choices I discussed earlier this morning, and you've declined to discuss them with Captain Callahan. Nonetheless, those three choices remain. You may reconsider your decision to relieve him as your defense counsel in this matter; you may relieve him as your defense counsel, but nonetheless retain him as your legal advisor for the balance of these proceedings; or you may represent yourself, as is your constitutional right. I strongly discourage that final option. What are your choices? ACC: To have Captain Callahan relieved as my defense counsel. MJ: Very well. And then do you wish to have him serve as your legal advisor? ACC: No, sir. MJ: Then that leaves you as your own counsel. Do you---- ACC: Sir, I'm not qualified to represent myself. MJ: Well, those are your choices. These proceedings will continue, and I'll discuss with you the consequences of self- representation, but the proceedings will not be disrupted and you will have that opportunity to represent and defend yourself as you've chosen to do so. Do you understand that option?

ACC: Sir, but I'm not electing that option. MJ: Well, you have not elected any options of those that are

612 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.

613 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?

614 ACC: Yes, sir.

MJ: Have you ever served as a witness at a court-martial or non judicial punishment proceeding? ACC: NJP, sir, not court-martial. MJ: Have you ever participated in administrative separation board proceedings? ACC: Yes, sir. MJ: Do you understand the differences in those proceedings compared to this court-martial? ACC: Yes, sir. It's been a while. MJ: Do you understand the nature of the charges that have been brought against you? ACC: Yes, sir. MJ: Are you familiar with the military rules of evidence and procedure? ACC: Not to the point to where I'm prepared to represent myself, sir. MJ: Do you have a copy of the Manual for Court-Martial available? ACC: No, sir, I don't. MJ: I'll direct the Government to provide you one. Have you ever reviewed or had an occasion to read the Manual for Courts-Martial in---- ACC: Yes, sir.

615 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.

616 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.

617 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

618 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?

619 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

620 outlined earlier. The Defense will then be given an additional opportunity to present evidence to rebut the Government's case. Once the evidence has been exhausted, then the Court will meet with the parties to discuss the instructions that will be provided to the members. Those instructions are highly detailed, technical in nature, and require strong legal basis in order to understand, comprehend and advocate for those instructions. After those instructions are confirmed by the Court, then there will be argument by counsel. Once the counsel have argued, the members will deliberate on the verdict of this case. Do you understand that that is essentially the proceedings that remain to this point? ACC: [No response.] MJ: Did you hear my question, Commander? ACC: Yes, sir, I did. MJ: Do you have a response to it? ACC: No, sir, I don't. MJ: You do not wish to respond to my question? ACC: Sir, like I said, I'm not a qualified attorney and if the Court insists on this proceeding going forward, so be it. MJ: Very well. The proceeding will go forward. A couple of other matters I would like to note. First of all, we discussed quite a while ago Rule for Courts-Martial 804.

Do you recall the discussion of that rule, Commander? ACC: No, sir, I'm not familiar with that rule.

621 MJ: In more simple terms, it is called the trial in absentia rule. I do want to reconfirm with you that rule. That these proceedings have been brought to order, this court has been assembled. Witnesses have been brought from all over the world. If you decide to voluntarily absent yourself from these proceedings without authority, then the court-martial will proceed in your absence. The members will determine a verdict after the evidence has been received and you will have deemed to have waived your right to be present. Do you understand that? ACC: No, sir, I don't. MJ: Let me break it down for you. The court-martial has been assembled. Do you understand that? ACC: Yes. MJ: The court-martial will proceed as I have directed. Do you understand that? ACC: Sir, I think what I'm confused about here is if this court goes forward, then if I am still defending myself, that because I am forced by the Court to go forward with doing so, that I would have no grounds or no merit for an appeal issue. Is that correct? MJ: Well, right now I'm focusing on the trial in absentia rule, but we can revisit that question later. Again these are matters I would have hoped you would have discussed with all of your six defense counsel in terms of what are the appellate options and your rights, and perhaps we can get into some limited discussion of that in a moment.

622 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?

623 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

624 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

625 California Court of Appeals case, People vs. Willie Weston, Jr., decided 30 June 1970, reported at 9 California Appellate Third 330 (1970), as guidance in aid of its decision making in the request for counsel relief, as well for continuance to procure substitute counsel. Are there other matters we need to address on the record before we take a brief recess to ensure Commander Penland has a Manual for Courts-Martial? TC: None from the Government, sir. MJ: Commander Penland, anything else that we need to discuss on the record before we take that recess? ACC: No, sir. MJ: Very well. Court stands in recess. Please reassemble at quarter to the hour. Carry on, please. [The session recessed at 0933 hours, 23 May 2008.] [The session was called to order at 0950 hours, 23 May 2008.] MJ: This 39(a) session is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, except for Captain Callahan who was excused by Lieutenant Commander Penland as her counsel. The Court will note for the record that its decision making at the last session is typically viewed, at least in California, as a Marsden motion, M-A-R-S-D-E-N, apparently certain precedent here in California concerning the request to relieve and replace counsel in the midst of trial.

626 The Court will also issue further findings of fact and conclusions of law, as necessary, pertaining to the Defense's request to recuse the military judge and the Defense's request to continue these proceedings to permit the procurement of an unspecified, unidentified civilian counsel. Lieutenant Commander Penland, have you had an opportunity to get a copy of the Manual for Courts-Martial? ACC: Yes, sir, I have. MJ: Very good. Now, you've told me numerous times this morning that you are unprepared and ill equipped to represent yourself. I'll ask you one last time, do you want to reconsider your decision to relieve Captain Callahan? He is standing by in this courtroom--in this courthouse to assist you if you decide to have him return to your table. Do you wish to reconsider your decision concerning Captain Callahan? ACC: Sir, I just received the Manual for Court-Martial and there's a particular section in here that I would like an opportunity to review before I answer that question. MJ: Well, unfortunately there's no more time for you to review that section. You have had a recess at this point. The members have been standing by since 0830 this morning. We have witnesses flown from Bahrain, Thailand and elsewhere throughout the globe to testify on your behalf. It is not my intention to continue these proceedings any further. Do you wish to reconsider your decision concerning Captain Callahan?

627 ACC: Yes, sir, because there is a particular section that I just discovered that I need time to review it and consult with Captain Callahan because I--to defend myself and also a particular--excuse me--a potential witness. So there's no way for me to defend myself and also be a witness. MJ: That is a complication. ACC: Yes, it is, sir. MJ: It is certainly very difficult to do. Going back to the rules of procedure in evidence, again, you would be certainly less effectively represented if you're both your own advocate and you're a defendant. ACC: Yes, sir. MJ: You've come to that realization I hope? ACC: Yes, sir. MJ: Very well. I'll give you 20 minutes. If you would take that time, use it wisely to discuss those matters, if you wish, with Captain Callahan to determine what role you would prefer him to serve on your behalf. Court stands in recess. Please reassemble at 10 minutes after the hour. Court's in recess. [The session recessed at 0953 hours, 23 May 2008.] [The session was called to order at 1014 hours, 23 May 2008.] MJ: This 39(a) session is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include Captain Callahan.

628 Lieutenant Commander Penland, have you reconsidered your decision to relieve Captain Callahan? ACC: Yes, sir, I have. MJ: And what is your decision at this point with regard to his role in representing you? ACC: That he will be representing me as defense counsel. MJ: Very good. Captain Callahan, are you prepared to proceed with the remainder of these trial proceedings. IMC: Yes, sir. I believe the Government's next witness is a Mr. Duffy. If I could have about 10 minutes with him before we go on. With having got thrown off due to some of this other stuff that was going on this morning, I think if I have about 10 minutes with him I can keep from having to call one of the defense witnesses that's coming in to testify to a minor technical issue. I think Mr. Duffy should be able to do it. MJ: Very well. IMC: In the end, I think it will save a little time. MJ: I'm all for saving time if that's appropriate. But let's plan ahead, as well. Lieutenant Commander Messer, is Mr. Duffy your last expected witness on the merits? TC: No, sir. I'll be recalling Chief Lewis-Wiggan for a very brief--I'm just going to introduce two more exhibits, sir. They've been marked as Prosecution Exhibits 21 and 22 for identification. I did not admit those on my direct exam of her initially.

629 MJ: Very well. If you would outline, if necessary, any additional testimony you're going to procure from her and let Captain Callahan know so he can also interview her, as necessary. TC: Yes, sir. MJ: After that, the Government will rest? TC: Yes, sir. MJ: Captain Callahan, does the Defense have witnesses standing by that you'd like to offer the Court? IMC: Yes, sir. Our first witness I think will be Lieutenant JG Wiggan. MJ: Very well. IMC: So I suspect he will be a fairly lengthy witness. MJ: Very good. Okay. Well, if we can him standing by, as well. Court stands in recess unless there are other matters we need to address on the record. TC: None from the Government, sir. IMC: No, Your Honor. MJ: Very well. Court's in recess. Please reassemble at 1030 hours. Carry on, please. [The Article 39(a) session recessed at 1017 hours, 23 May 2008.] [END OF PAGE]

630 [The court-martial was called to order at 1032 hours, 23 May 2008.] MJ: Bailiff, please ask the members to join our court. TC: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the overnight recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Members, my sincere apologies for the delay this morning. There have been a number of issues that we've addressed outside your presence yesterday afternoon and all morning that required extensive court time, also some significant legal research. I hope we have worked through those issues. I make no promises. But I do hope that we will be able to better use your time as the proceedings continue. Lieutenant Commander Messer, does the prosecution have any additional evidence it would like to offer the members at this time? TC: Yes, sir. At this time the Government would recall Mr. Brian Duffy to the stand. MJ: Very well. Bailiff, if you would please recall Mr. Duffy on behalf of the court. [The bailiff retrieved the witness.]

631 BRIAN DUFFY, civilian, was recalled as a witness for the prosecution, was reminded of his oath, and testified as follows: TC: Sir, request permission to approach. MJ: Very well. TC: I'm retrieving from the court reporter what's been previously marked as Prosecution Exhibits 24 and 25 for identification. I'm showing Prosecution Exhibits 24 and 25 for ID to the defense counsel [showing PE 24 and 25 for ID to Defense]. And I'm handing the two exhibits to the witness [handing PE 24 and 25 for ID to the witness]. DIRECT EXAMINATION Questions by the trial counsel: Q. Mr. Duffy, if I could direct your attention to Prosecution Exhibit 24 first. What is that document? A. [Reviewing PE 24 for ID.] This document is a response to a subpoena from Sprint for the cell phone records, the personal cell phone records of Syneeda Penland. Q. And what phone number is that for--are these records for? A. That's for (757) 822-3579. Q. And what are the time--what's the time period that these records cover? A. This one is 1 through 30 September. Q. Is there any other dates covered by these records?

A. This--okay. That's on the front page. Let me see. Yes. And then the back portion is October 1st through October 31st. So in

632 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.

633 Q. If you could look at Page 2 and tell me when those dates start. A. Okay. Yeah. The bill period is January 1st through the 31st, but there is no activity until the 9th of January. Q. So these records are from what date? A. From the 9th of January to the 31st of January 2007. Q. And you received these records in response to a subpoena issued by your office? A. Yes, that's correct. Q. Are these records a fair and accurate depiction of the records that were received from Sprint in response to that subpoena? A. Yes, they are. Q. And could you please explain to the court what is on Page 1 of Prosecution Exhibit 25 for identification. A. Well, there's another certification on top of this one by the person who drew the records from Sprint, certifying that they're true and accurate under penalty of perjury and then signed in front of a notary public. TC: Thank you. Sir, at this time I'd offer Prosecution Exhibits for identification 24 and 25 into evidence and I'd ask that the words "for identification" be deleted. MJ: Objection from the Defense?

IMC: No. Thank you, Your Honor.

634 MJ: There being no objection, Prosecution Exhibits 24 and 25 for identification are now admitted into evidence. The words "for identification" will be stricken by our court reporter, and you may publish those exhibits at a time you desire. Further questions for this witness? TC: Yes, sir. May I approach the witness? MJ: You may. TC: I'm retrieving Prosecution Exhibits 24 and 25 from the witness. I request permission to publish the exhibits to the members, sir. MJ: Very well. If we can confirm that our monitors are working for the members. TC: That's an affirmative, sir. MJ: Affirmative from our members. Very good. [PE 24 was electronically published to the members and witness.] Q. Mr. Duffy, I'm going to show you what has been--which is labeled as Page 34--Page 48, we'll bring that up. If you could look on the video monitor there, sir, and tell me if you can see that adequately. It's kind of fuzzy. And I'd like to direct your attention to line item 379. Could you please explain to the court what the significance of that line item is. A. Line number 379 where is says 9/25 after it, are you referring to that?

Q. Yes. Yes. Do you recall that phone number? A. I'm having a little difficulty reading that phone number.

635 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?

636 A. That is correct. Q. From this cell phone? A. From that cell phone. Q. And the owner of the cell phone is? A. Syneeda Penland. TC: Thank you. Now, at this time, Your Honor, I'd ask that the witness be allowed to step down from the witness stand, approach the easel. [The witness stepped down from the witness stand.] MJ: For what purpose? TC: I'd like the witness--the witness was instrumental in investigating the phone records and going through and identifying certain phone numbers. Just as for clarification for the members I'd like him to list the key phone numbers that he investigated, specifically the numbers to the USS PRINCETON, USS MOBILE BAY and the personal cell phone numbers of Lieutenant JG Wiggan and I'd like that in evidence. MJ: Captain Callahan? IMC: I'd object to that. The numbers for these things have already been admitted into evidence. They've already been testified by various different Government witnesses as to what these numbers are. I don't see any need for additional time spent in this court writing down those on an easel board, making it some sort of exhibit and then distributing it to the members. MJ: So your objection is cumulative?

637 IMC: Yes, sir. MJ: Lieutenant Commander Messer? TC: Well, sir, certainly there's some question as to--there was a question from one of the members earlier on what the number to the USS MOBILE BAY quarterdeck was and the witness could not answer that question, if I recall correctly; they didn't have knowledge of it. And I'm not--I'm just making sure the Government is covering all bases here and getting all these numbers into evidence. I know that the PRINCETON has multiple numbers. The witness would be able to identify the three key numbers to the USS PRINCETON that he identified in the phone records. The MOBILE BAY has three phone numbers, and then there's three different cell phone numbers for Lieutenant JG Wiggan, and I want to make sure that the Government gets those in evidence. I'm not sure that those have been brought out. MJ: Very well. Why don't you just ask the witness, and the members, if they desire, can take notes of those numbers as they desire. TC: Yes, sir. If you could please retake your seat, Mr. Duffy. MJ: Please be seated, Mr. Duffy. [The witness resumed the witness stand.] Q. Mr. Duffy, in the course of your investigation, did you investigate certain telephone numbers?

A. I did.

638 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.

639 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.

640 [The court reporter marked the notes as AE XLIII.] Q. Mr. Duffy, are you satisfied that those numbers that you just recitated [sic] are the accurate phone numbers? A. Yes, I am. Q. Now, I'd just briefly like to talk to you about Prosecution Exhibits 24, 25 and what has been previously admitted, Prosecution Exhibit 18. Those--what are--do you know what those three exhibits are? I know you know---- A. Well, 24 and 25 I just saw, but 18 I don't--I don't know. TC: Sir, request permission to approach? MJ: Very well. TC: I'm retrieving Prosecution Exhibit 18 from the court reporter. I'm handing Prosecution Exhibit 18--it's been entered into evidence--to the court reporter [sic]. I'm also handing the--I'm handing that to the witness [handing PE 18 to the witness]. I'm also handing to the witness Prosecution Exhibits 24 and 25 [handing PE 24 and 25 to the witness]. Q. Mr. Duffy, I just want to talk to you briefly about what you were able to find out when investigating those records for the numbers that we just spoke about. Let's first talk about Prosecution Exhibit 18 that's already been--or that was entered into evidence yesterday. In reviewing that document, did you find numbers dialed to any of the numbers we talked about?

A. Yes. I got hits for all three of the periods in question.

641 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.

642 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.

643 TC: I'm retrieving Prosecution Exhibits 18, 24 and 25 from the witness and I'm returning them to the court reporter. Q. Now, Mr. Duffy, in your duties as paralegal, did you have the opportunity---- TC: Actually, sir, request permission to approach again. MJ: Very well. TC: I'm retrieving Prosecution Exhibit 11 from the court reporter. I'm handing what's been entered into evidence as Prosecution Exhibit 11 to the witness [handing PE 11 to the witness]. Q. Mr. Duffy, do you recognize that prosecution exhibit? A. [Reviewing PE 11.] Yes, I do. Q. How is it that you recognize it? A. I received this from yourself and it was---- Q. And why did you--why was that provided to you by me? A. It was provided to me for purposes of opening the document and then clicking on File and Properties and seeing who the author of the document was. Q. And did you do as I requested? A. I did. Q. And what did you discover? A. When I clicked on File, then Properties, the author said Syneeda Penland. TC: Request permission to approach, Your Honor.

MJ: Very well.

644 TC: I'm retrieving Prosecution Exhibit 11 from the witness and returning it to the court reporter. Retrieving Prosecution Exhibit 12 for identification from the court reporter. I'm showing Prosecution Exhibit 12 for identification to the defense counsel [showing PE 12 for ID to Defense]. I'm handing Prosecution Exhibit 12 for identification to the witness [handing PE 12 for ID to the witness]. Q. Do you recognize that document, Mr. Duffy? A. [Reviewing PE 12 for ID.] Yes, I do. Q. What is it? A. That's the document that I just referred to, that letter, and that's a screen shot of when I opened up File, then Properties, and then it revealed Syneeda Penland as the author. I then took a screen shot of the screen by holding down Control and selecting print screen and then effectively copies it and then I pasted it and printed it out. Q. So is this exhibit an accurate depiction of what you saw on your computer screen when you carried out that investigation into this document? A. Yes, it is. TC: Sir, at this time I'd ask that Prosecution Exhibit 12 for identification be entered into evidence and the words "for identification" be deleted.

MJ: Objection from the Defense? IMC: No, Your Honor.

645 MJ: There being no objection, Prosecution Exhibit 12 for identification is now admitted into evidence. The words "for identification" will be stricken by our court reporter, and you may publish the exhibit at an appropriate time. TC: Thank you, sir. Request permission to approach. MJ: You may. TC: I'm retrieving Prosecution Exhibit 12 from the witness and I'm returning it to the court reporter. Sir, I have no further questions for this witness. MJ: Captain Callahan, questions for the witness? IMC: Please, Your Honor. MJ: By all means. IMC: Thank you. CROSS-EXAMINATION Questions by the individual military counsel: Q. Good morning, Mr. Duffy. A. Good morning, sir. Q. Mr. Duffy, isn't it true that with all the Microsoft programs, if you go into the document when you were creating the document, that you can put anybody down as the author that you want? A. I discovered that you could change the author by conducting an experiment on one of my own documents, yes. Q. So I'm an old Miss. grad. The only famous person to come from old Miss. is Eli Manning and John Grisham. So let's say I'm writing something out and I want to pretend I'm Eli Manning. Could I

646 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.

647 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.

648 Q. So a total of four phone numbers? A. At least that, yes. Those are the ones that I recall. IMC: Thank you, sir. No further questions, Your Honor. MJ: Redirect? TC: Briefly, sir. REDIRECT EXAMINATION Questions by the trial counsel: Q. Mr. Duffy, just to clarify, did you, when you received that document, did you change the author of the document to Syneeda Penland or was that the author when you received it? A. I did not change the author. Q. Do you have any knowledge of anyone else tampering with that document to change the author from someone else, say John Grisham or Eli Manning to Lieutenant Commander Penland? A. No, sir. TC: Thank you. MJ: Captain Callahan, anything further? IMC: No. Thank you, Your Honor. MJ: Questions from our members? Negative response from all panel members. [The witness was reminded of his previous warning, temporarily excused and withdrew from the courtroom.] MJ: Further evidence from the prosecution on the merits of this case?

649 TC: Yes, sir. At this time the prosecution would recall Chief Lewis-Wiggan to the stand. MJ: Very well. Bailiff, if you would please recall the witness on behalf of our court. [The bailiff retrieved the witness.] NAVY COUNSELOR CHIEF KIMBERLY LEWIS-WIGGAN, U.S. Navy, was recalled as a witness for the prosecution, was reminded of her oath, and testified as follows: TC: Request permission to approach, Your Honor. MJ: You may. TC: I'm retrieving what has been marked as Prosecution Exhibits 21 and 22 for identification from the court reporter. I'm showing defense counsel Prosecution Exhibits 21 and 22 for identification [showing PE 21 and 22 for ID to Defense]. I'm handing Prosecution Exhibits 21 and 22 for identification to the witness [handing PE 21 and 22 for ID to the witness]. DIRECT EXAMINATION Questions by the trial counsel: Q. Chief, if you could please direct your attention to the exhibit that's labeled PE 21 for ID. Do you recognize that document? A. [Reviewing PE 21 for ID.] Yes, sir, I do. Q. How is it that you recognize that document?

A. This was forwarded to me.

650 Q. What was--what is it? A. It's an e-mail from Lieutenant Commander Penland to my--me and my husband's home e-mail address and then he--well, to the ship address and then he forwarded it to our home e-mail address. Q. And is there an attachment to that e-mail? A. Yes, it is, sir. Q. Okay. I want you to take a minute to look it over. Does that e-mail appear to be a fair and accurate depiction of the e-mail that you received from your husband on the--I believe it was the 2nd of December? A. Yes, sir, it is. Q. And once receiving this e-mail, did you print it out? A. I did for Lieutenant Commander Doud. I didn't originally print it out; I just read it. Q. Does this document appear to be an accurate depiction of what you forwarded to Commander Doud? A. Yes, it is. TC: Sir, at this time I'd ask that Prosecution Exhibit 21 for identification be entered into evidence and the words "for identification" be deleted. MJ: Objection from the Defense? IMC: No, Your Honor. MJ: There being no objection, Prosecution Exhibit 21 for identification is now admitted into evidence. The words "for identification" will be stricken by our court reporter, and you may

651 publish the exhibit at an appropriate time. TC: Thank you, sir. I'd like to--I'm publishing Exhibit 21 to the members now. MJ: Very well. [PE 21 was electronically published to the members and witness.] Q. Now, Chief, you stated--you testified earlier there was an attachment to this e-mail? A. Yes, sir. Q. Did you also view the attachment? A. Yes, sir, I did. Q. I'd like to direct your attention to Prosecution Exhibit 22 for identification. What is that document? A. [Reviewing PE 22 for ID.] The document was--it's--she was saying she wanted to send a few words. Q. Is that document the attachment that was attached to the e-mail? A. Yes, sir. Q. Did you have an opportunity to review that document at the time? A. Yes, sir. Q. Is this document--take a moment to look through Prosecution Exhibit 22 for identification now. Is that document the same document that you received as the attachment as an e-mail from your husband?

A. [Further reviewing PE 22 for ID.] Yes, sir.

652 Q. And it's a fair and accurate depiction of what you read at that time? A. Yes, sir. TC: At this time, Your Honor, I'd ask that Prosecution Exhibit 22 for identification be entered into evidence and the words "for identification" be deleted. MJ: Objection from the Defense? IMC: No, Your Honor. MJ: There being no objection, Prosecution Exhibit 22 for identification is received into evidence. The words "for identification" will be stricken by the court reporter, and you may publish the exhibit at an appropriate time. TC: Thank you, sir. Q. Chief, this is--approximately how many pages is the document, Prosecution Exhibit 22? A. It's quite lengthy. I don't really remember counting them all. Q. So it's a lengthy document. I just want to talk to you about some key points. Is there anything in that document that puts you on notice that the relationship between your husband and Lieutenant Commander Penland may be more than just a friendship? A. Yes, sir. There was some stuff in there. Q. What things, in particular, could you please point out to the members?

653 A. There was a part about when she talked to Casey, her cousin, in regards to them going to Atlanta for New Years to have a new beginning in their relationship. Q. And was your husband invited to go to Atlanta, too? A. Yes, he was invited by her in this e-mail to go to Atlanta. Q. And what put you on notice about that invitation? A. It was--she had actually written it in the letter itself. Q. That---- A. She said, "The invitation is still open. If there is something you would like to do, no strings attached. I'm offering it as a good gesture because you've never been there, not as a celebration for a new beginning for us." Q. By stating "no strings attached," what did you believe she meant by that? IMC: Objection. Speculation. MJ: Lieutenant Commander Messer? TC: Sir, this is the perception of the witness as to whether or not she believed there was some infidelity in the relationship between the husband and Lieutenant Commander Penland. She has the right to give her impression of what she thought when she was reading the e-mail. IMC: Object to relevance then, sir. She's already testified she thinks there's an affair going on.

MJ: Sustained as to speculation. TC: Aye, sir.

654 MJ: You might want to rephrase your question, Lieutenant Commander Messer. TC: The exhibit's in evidence. The members will have a chance to review it. I'll move on. Q. Is there anything else in this lengthy note that caught your interest? A. There was also---- Q. How did--how did the author or Lieutenant Commander Penland refer to your husband at the end of the document? A. Let's see. It's so long, I have to find the---- Q. The last page of the document. A. Yes. Okay. Oh, she--she says that they were--she says, "Mark, we have been chosen to become soul mates. That is our purpose or else our paths would never have crossed." TC: Thank you. I have no further questions. At this time, sir, I'm retrieving Prosecution Exhibit 22 from the witness. MJ: Very well. TC: Returning it to the court reporter. Actually, sir, I'm retrieving both 22 and 21 and returning it to the court reporter. MJ: Very well. If you'd also shut down the Elmo. TC: Yes, sir. MJ: Captain Callahan, questions for the witness?

IMC: Briefly, Your Honor. MJ: Very well.

655 CROSS-EXAMINATION Questions by the individual military counsel: Q. Good morning, Chief. A. Good morning, sir. Q. Chief, did you ever call Commander Penland early January, first few days of January? TC: Sir, I object. This is outside the scope of my direct examination. IMC: Request just the Court's leeway a little bit; otherwise we can certainly treat this witness as on direct or we can recall this witness later for the Defense case. But in the interest of time, I think it's simply this one question. With the Court's indulgence---- MJ: Very well. IMC: ----I think--answer it now. MJ: Objection's overruled. Q. Did you ever call Commander Penland in early January? A. I'm not--I don't recall because it's been so long ago, honestly. I know that my spouse had called from my house phone and then that's how I ended up talking to her on the phone later on that same day in January time frame. Q. You talked to her that day, but you don't remember calling her? A. I didn't call her myself personally, no.

IMC: Thank you. No further questions, Your Honor. TC: No follow up, sir.

656 MJ: Questions from our members? Negative response from all panel members. [The witness was reminded of her previous warning, temporarily excused, and withdrew from the courtroom.] MJ: Further evidence from the prosecution on the merits of this case? TC: Sir, at this time the Government would ask that all exhibits that have been entered into evidence be published to the members--all prosecution exhibits that have been entered into evidence that have not been published to the members be published to the members at this time. MJ: Do you have duplicate copies of the extensive records you've admitted into evidence so the members can review them? TC: Sir, I have just the copy provided to the court reporter and I'd ask that those go back with the members at the time of deliberation. MJ: Very well. So, in terms of publication, publish them for deliberations? TC: That's correct, sir. MJ: Very well. We will do so when we close for deliberations. Any further evidence from the prosecution on the merits of this case? TC: Nothing further, sir. The Government rests.

MJ: Very well. Members, this would be an appropriate time to take a brief recess. If you would please cover your notes. Subject

657 to my standard instructions to not discuss this case in any manner, the members may depart on recess. If you would please reassemble at 1130 hours. Members, I plan on taking a later lunch this afternoon. So if you want to take some time to grab a snack from one of the vending machines here, feel free to do that. I anticipate the next witness, if the Defense elects to present witnesses, may take a fairly lengthy time, so I want to get that in before lunch. Subject to my standard instructions, the members may depart on a brief recess. BAILIFF: All rise. [All persons did as directed.] MJ: Members, please reassemble at 1130 hours. [The members withdrew from the courtroom.] [The court-martial recessed at 1111 hours, 23 May 2008.] [END OF PAGE]

658 [The Article 39(a) session was called to order at 1112 hours, 23 May 2008.] MJ: Please be seated. [All persons did as directed.] MJ: This 39(a) session is called to order. Let the record reflect the members have departed from the courtroom. The Court will note, at least with regard to this last session of court, that Lieutenant Commander Penland frequently throughout the proceedings consulted with Captain Callahan and reviewed the exhibits with him. I will also ask defense counsel at this time, do you anticipate presenting evidence on the merits of this case? IMC: Yes, Your Honor. MJ: Very good. When we return, if you would please have that evidence standing by and we will proceed as necessary. Court stands in recess. IMC: Sir? MJ: Oh, Captain? IMC: Actually, if I may, I would also like to address some 917 motions and then a motion to dismiss the conduct unbecoming an officer on other grounds, as well, sir, before we present our case. MJ: Very good. All right. If you would, please articulate your motions under R.C.M. 917.

659 IMC: Yes, sir. Under the indecent acts there's been--one of the requirements for indecent acts is it's done to gratify sexual desires. There has simply been no evidence presented by the trial counsel that in any way that would suggest that even if my client did send those photographs of Lieutenant JG Wiggan to Chief Wiggan, if they were done to gratify her sexual desires. There's also been no proof that these acts were committed with another. The testimony here in court was that she received an e-mail. There was no action done at the same time by both people. One of the requirements for indecent acts with another has been somewhat addressed by the Court before. I believe it is appropriate to rule on that at this time as the Government's evidence has come out on this and there has been no proof that these were acts committed together. As such, it would be appropriate at this time to dismiss that charge and specification. MJ: And that is the first specification under Charge IV? IMC: Yes, Your Honor. MJ: Government response? TC: Sir, the Government has presented evidence that it was--the indecent act was an e-mail sent from Lieutenant Commander Penland to Chief Lewis-Wiggan. Those are the two actors required under the element to be satisfied. There's no requirement under the law that both parties be co-actors or that the receiving party be an accomplice to the act. In this case, the Government's position is that Chief Lewis-Wiggan was a victim. However, we still believe that the element

660 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.

661 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

662 particular 917 motion? IMC: No, Your Honor. MJ: Very well. You said you had also another 917 motion? IMC: Yes, sir. In regards to Specification 1 of Charge III, conduct unbecoming an officer. Or I'm sorry. I think I have the wrong specification. Specification 2. There has been no evidence that she would refuse to leave. The only testimony here in court from the executive officer was that when he requested her to leave, that she left. There's been no evidence that she was ordered to leave and that somehow not leaving was wrongful. MJ: Lieutenant Commander Messer? TC: Well, sir, there's no requirement that the accused had to be given an order to leave the ship and she refused the order. The allegation here is that because using her rank she put herself on the quarterdeck of the ship and refused to leave until she saw either the CO or the XO, and that was wrongful in that way. That is what the evidence the Government has presented and supports. We don't dispute the fact that once her business with the XO was done she left the ship. So it's not that the XO needed to order her to leave and she refused, it was that she refused to leave until she spoke to either the CO or the XO, disrupting the ship and the ship's schedule, and that is the Government's position. We presented evidence as to that. IMC: Sir, there was no evidence presented that she refused to leave. He said when she--you know, he was not aware of her being told to leave, and when he told her leave, she freely left the ship. So

663 there's--you can't have a refusal to leave without having been told to leave and there's been no evidence to the court that she was, in fact, told to leave. MJ: Lieutenant Commander Messer, whose testimony are you referring to, Lieutenant Commander Monsiger or Monsinger? TC: Lieutenant Commander Moninger, sir. MJ: Moninger. Okay. TC: Who represented that he had believed she had been on the ship earlier, but he wasn't sure. And that we also heard testimony from Chief Lewis-Wiggan [sic] who also talked about how he had visited--how she had come to the ship to visit him about her missing jewelry. So we know that she had been to the ship on that day. MJ: I'll review my notes concerning Lieutenant Commander Moninger. Anything else concerning the 917 motion pertaining to Specification 2 of Charge III? IMC: No, Your Honor. MJ: Very well. Are there any other motions or requests for relief from the Court at this time, Captain Callahan? IMC: Yes, sir. Sir, at this time the Defense would request that the military judge dismiss all three of the Article 133 violations and would like to rely on--which I'll provide the Court--it's United States v. Brown, can be found at 55 M.J. 375. I'll provide a copy of that to counsel, as well. But, in essence, it's a Court of Appeals from the Armed Forces decision dealing with implicating various

664 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

665 getting ready to go underway, and attempt to re-secure that jewelry. And there's nothing within our customs or protocols as Naval officers that would suggest such actions are criminal. And then again, lastly, in regards to the distribution of the photographs, again, according to the Government's case, this is a woman that asked for proof of an affair. Proof of an affair was sent. Again, there's nothing in the lines of that that deal with criminal conduct, nothing that Commander Penland could be on notice would be considered criminal conduct. The courts simply don't allow the government to call absolutely anything it wants to "conduct unbecoming an officer," because that is overbroad, that is too vague. There has to be some sort of notice through the Naval customs that that type of action is considered criminal, and that is lacking for all three of these particular charges of conduct unbecoming an officer, sir. And with the Court's permission, I would like to approach at this time. I'll hand a copy of the case to the military judge and give a copy to opposing counsel, as well. MJ: Very well. IMC: I'm approaching the military judge, handing the military judge U.S. v. Brown. [Defense counsel handed the case cite to the military judge and trial counsel.] MJ: Thank you, Counselor. Lieutenant Commander Messer, the Government response?

666 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

667 empanel officers senior to that of the accused; they can use their wisdom and knowledge to review the facts of this case and make the appropriate decision. It's not a decision that the judge should make sua sponte and not allow it to go to the members. MJ: Captain Callahan, anything further concerning the 917 motions? IMC: Nothing further, Your Honor, no. MJ: Very well. Counsel, thank you for your arguments and presentations on these interesting issues. The Court will take the balance of the recess and perhaps a little additional time to review your arguments and the cited authority and issue a ruling concerning the 917 motions when we return. Since those 917 motions will not dispose of all the charged offenses, Captain Callahan, if you have evidence to present on the merits, please have that standing by. Court stands in recess. Please reassemble 20 minutes to the hour. Carry on, please. [The session recessed at 1125 hours, 23 May 2008.] [The session was called to order at 1147 hours, 23 May 2008.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time. The members remain in the deliberation room. With regard to the Defense motions pursuant to Rule for

Court-Martial 917, this Court has applied the standards set forth in Rule for Courts-Martial 917, specifically that a finding of not guilty

668 shall be granted only in the absence of some evidence which, taken together with all reasonable inferences and applicable presumptions, could reasonably tend to establish each essential element of the offense charged. Again the Court is cautioned by the instruction and required to view the evidence in the light most favorable to the prosecution without any evaluation of the credibility of any witnesses. With regard to the first Defense motion to dismiss pursuant to Rule for Courts-Martial 917, specifically Specification 1 of Charge IV, the Court finds that there is a failure of proof concerning the element of intent to satisfy sexual desires or lust. Therefore, the motion is granted. Specification 1 of Charge IV will be dismissed and the members will be so instructed. The Court's ruling clear to both parties? TC: Yes, sir. IMC: Yes, Your Honor. MJ: With regard to Specification 2 of Charge III, the Court has reviewed its notes concerning the testimony of Lieutenant Commander Moninger. There is testimony in evidence to support the charged offense in that the accused disrupted the shipboard's routine, specifically non judicial punishment procedures that had to be interrupted to address her demand to be heard by the Commanding Officer or the executive officer of the ship. The Court finds that that particular act, as alleged, could constitute conduct unbecoming an officer. That is a matter of fact for the members to determine

669 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.

670 Are the Court's rulings clear as to the Article 133 offenses and the Defense's 917 motions pertaining thereto? TC: Yes, sir. IMC: Yes, Your Honor. MJ: Very well. Are there other matters we need to address outside the members' presence on the record at this time? TC: No, sir. IMC: No, Your Honor. MJ: Very well. This 39(a) session is concluded. Bailiff, please ask the members to join our court. BAILIFF: Yes, sir. [The Article 39(a) session concluded at 1151 hours, 23 May 2008.] [END OF PAGE]

671 [The court-martial was called to order at 1152 hours, 23 May 2008.] BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to also include all of our members. Please be seated all others. [All persons did as directed.] MJ: Members, if you would, in your folders, take out your copy of the charges in this case. Once you have done so, please focus your attention on Specification 1 of Charge IV, alleging an indecent act. Members, please strike through that charged offense. I have dismissed that offense. It is no longer before you for your consideration. Based on my decision to dismiss this charged offense, you are advised the maximum potential punishment has been reduced to a dismissal and confinement for 11 years. Members, since this charge has now been removed from your consideration, you must completely disregard it during your deliberations. Will all members be able to follow the Court's instructions on these matters? Affirmative response from all panel members.

672 Very well. Captain Callahan, although the accused has no obligation to present evidence and bears no burden in this trial, does the Defense desire to present evidence on the merits of this case? IMC: Yes, Your Honor. MJ: You may proceed. IMC: Sir, the Defense calls Lieutenant JG Mark Wiggan to the stand. MJ: Very well. Bailiff, please call the witness on behalf of this court. [The bailiff retrieved the witness.] LIEUTENANT JUNIOR GRADE MARK P. WIGGAN, U.S. Navy, was called as a witness for the defense, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. For the record, please state your full name, spelling your last. A. Mark Phillip Wiggan. Q. How do you spell the last name? A. Wiggan, W-I-G-G-A-N. Q. And, Lieutenant JG Wiggan, what is your current duty station? A. USS NIMITZ. TC: Thank you. Your witness.

MJ: Lieutenant, if you would just move either closer to the microphone or move it closer to you, please.

673 [The witness did as directed.] MJ: Thank you. WIT: Yes, sir. MJ: Captain Callahan, your witness. IMC: Thank you, Your Honor. Questions by the individual military counsel: Q. Good morning, Lieutenant Wiggan. A. Good morning, sir. Q. Lieutenant Wiggan, how long have you been in the Navy for? A. Approximately 13, going on--like two months shy of 14 years. Q. Can you give a brief overview of the places you've served and the billets you've had in the Navy. A. I started off USS SAVANNAH. The next assignment was mainly--mostly--well, all ships, USS SAVANNAH, USS VELLA GULF, USS O'KANE, precomm stationed for USS MASON, USS PRINCETON, that's where I got--no, I'm sorry. USS STOUT, that's where I got commissioned, USS PRINCETON, now USS NIMITZ. Q. And what is your current billet on board the NIMITZ? A. I'm the Assistant Damage Control Officer. Q. Lieutenant Wiggan, do you know Chief Wiggan? A. That was me. Q. I'm sorry. Did you know Chief Kimberly Lewis-Wiggan?

A. Yes.

674 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.

675 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.

676 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.

677 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?

678 Q. It does. Are you saying, though, as far as her character for being truthful and honest, would you say her character is that she generally is truthful and honest, or is not truthful and honest? TC: Objection. Leading. MJ: Captain Callahan? IMC: I'll rephrase it. Q. What is your opinion of her character for truthfulness? A. It depends on what it is. If she's trying to get something, she's going to say anything she wants to say. Q. Are you aware of your wife ever using your e-mail account? A. A couple times I know for a fact. Q. I'd like to call your attention to some photographs that your wife said she found. Have you seen these photographs before? Are you aware of what I'm talking about? A. I think so. Q. Explain how you ended up in possession of those photographs. A. The photographs in question, there's like two different sets. The ones of Commander Penland, those--what happened was my wife--my wife and I, we had a couple altercations, so to speak. She scratched me up pretty bad and I borrowed Commander Penland's camera and in the process of taking--took some pictures of my scars. In the process of downloading, I guess I downloaded everything on the camera and so it's like on my laptop. And I remember one night we had an altercation; she claimed she was using my computer and she showed me

679 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.

680 Q. Did you give these photographs to your--to Lieutenant Commander Penland at any time? A. No. Q. Did you ever forward any e-mails from Commander Penland to your wife? A. No. TC: Thank you very much. I have no further questions for you. The prosecution may have questions for you. MJ: Lieutenant Commander Messer? TC: Yes, sir. Could I have just a minute? MJ: You may. TC: Request permission to approach, sir? MJ: You may. TC: I'm retrieving Prosecution Exhibits 10 and 21 from the court reporter. MJ: Very well. CROSS-EXAMINATION Questions by the trial counsel: Q. Lieutenant Wiggan, I'd like to start with I guess the last thing you ended with or one of the last things which was you just stated that you never forwarded any e-mails to your wife from Lieutenant Commander Penland; is that correct? A. No.

TC: Okay. I'm going to show--I am now handing to the witness what has been marked as prosecution--or, yes, that's Prosecution

681 Exhibit 10 and Prosecution Exhibit 21 [handing PE 10 and 21 to the witness]. Q. Go ahead and take a look first at Prosecution Exhibit 10; that's marked on the bottom there. A. [Reviewing PE 10.] Q. Have you had a chance to see that? A. Right. TC: I'm retrieving Prosecution Exhibit 10 from the witness. And 21, I handing you 21 [handing PE 21 to the witness]. I'm going to publish this to the members, sir. MJ: Very well. Which one? TC: I'm publishing Prosecution Exhibit 10 [sic]. [PE 21 was electronically published to the members and witness.] Q. Now, you testified that you never forwarded any e-mails to your wife. This is an e-mail dated 2 December from Syneeda Penland at her [email protected] account to Wiggan, Mark Lieutenant JG. Is that you in the address line there, Lieutenant Mark--Wiggan, Mark Lieutenant JG? A. Correct. Q. And that's to your NMCI account on board--or your military account on board the USS PRINCETON? A. No, that's from. I'm looking at the one on top, the one---- Q. All right. If you'd just look down at the bottom, that's an e-mail chain. Do you understand how e-mail chains work? A. Correct.

682 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.

683 MJ: Very well. TC: Well, actually, sir, I put up the wrong exhibit. Well, it was the same--it's the same issue I was addressing, but we'll address it with this one, too. So on this e-mail here, on--let me go back and correct the record, sir. [PE 10 was electronically published to the members and witness.] Q. So when you were talking about Prosecution Exhibit 10 and the date of the e-mail is 29 September and that was to Mark Wiggan-- Ensign Mark Wiggan from Lieutenant Commander Syneeda Penland. Do you agree with that? A. Correct. Q. Okay. And then it was forwarded on from Mark Wiggan, Ensign, at your CG59 address to Kim Lewis and that was on September 29th, and again you have no--you can't explain how that e-mail was received by your wife from your account? A. I'm pretty sure if you go into my account on the ship it's not here. Q. Say that again. A. I'm pretty sure that that didn't come off of the account I have on the ship. Q. So that from line has somehow been doctored? A. It could be. I don't know.

684 Q. Okay. I'm now going to show you Prosecution Exhibit 21. [PE 21 was electronically published to the members and witness.] Okay. This was an e-mail that was sent from Lieutenant--or from Syneeda Penland from her [email protected] address on the 2nd of December to a Lieutenant JG Mark Wiggan, subject, Hey. Then if you look above that, the message is forwarded from Mark Wiggan, Lieutenant JG at your CG 59 address to Mark and Kim Wiggan at Verizon.net. Can you explain how that message got forwarded on? A. The same thing again. Q. So your testimony here today is that you did not forward that message on to your home account---- A. Correct. Q. ----to your wife's account? A. Correct. Q. You do understand you're under oath? A. Correct. Q. Now, you testified also--well, let's start with some preliminary stuff. You said that you were divorced in October '07. So that would mean that you were married on September of '06 to Chief Kimberly Lewis-Wiggan? A. September of '06, correct. Q. And you were married to her on January of 2007? A. Correct. We were separated, legally separated.

Q. But you were still legally married? A. Correct, but legally separated.

685 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.

686 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?

687 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.

688 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.

689 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.

690 Q. And Lieutenant Commander Murphy spoke with Lieutenant Commander Penland and then she was not happy with what he had to say with her, is that right? A. Probably. I wasn't too sure---- Q. Did you meet with Lieutenant Commander Penland again at that point? A. No, I didn't the second time. Q. Do you remember what time of day she came on the ship the first time to talk to you? A. I'm not too sure. It might have been before lunchtime. Q. Before lunch. And then do you remember when she came back on again to speak to the Lieutenant Commander, the CHENG? A. It was sometime after lunchtime. I'm not too sure. Q. Did you talk to the CHENG after the CHENG spoke to Lieutenant Commander Penland? A. I think so. Q. And what did you tell him? IMC: Objection. Relevance. MJ: Lieutenant Commander Messer? TC: It goes to the state of mind of declarant as to why Lieutenant Commander Penland was on board and what he was telling the CHENG as in reference to her visit and why she was there, whether it was necessary enough, whether it was appropriate.

MJ: How is that relevant to the charged offenses?

691 TC: Well, she's been charged with disrupting the ship and the ship's schedule on that day, sir. I'm just trying to get more facts as to what effect her visit and the time of her visits and how much time the personnel on the ship spent meeting with her and what discussions or what the state of mind was of Lieutenant Wiggan and the others at that time in response to her visits. MJ: The Government hasn't charged as improper conduct the meetings with the Chief Engineer. Sustained. TC: Aye, sir. Q. Let me ask you this, Lieutenant Wiggan. How long did the Chief Engineer--do you know how long the Chief Engineer discussed the issue with Lieutenant Commander Penland? IMC: Objection. Again relevance, sir. MJ: Sustained. Q. Do you know how long the XO discussed the situation with Lieutenant Commander Penland? A. No, I don't, but I don't think it was that long. Q. Well, you just said you don't know. A. Meaning if it was long, I’m pretty sure he would have said something to me. Q. Were you present at the meeting? A. No, I wasn't. Q. Were you watching the situation, meaning that you're keeping tabs on where people were and what was going on?

692 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.

693 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.

694 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.

695 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.

696 MJ: According to my notes, they were published. I'm not sure if you showed them all, but you did request to publish them and that I have a note that you did so. TC: Yes, sir. I am publishing to the members at this time Prosecution Exhibit 2, Exhibit P-1. [Photo P-1 of PE 2 was electronically published to the members and witness.] Q. Do you recognize that photo? Do you not recognize that location? A. [Reviewing Photo P-1 of PE 2.] Not really. Q. You don't? You've never seen it before? A. I'm not too sure, no. TC: I'm showing the member P-2. [Photo P-2 of PE 2 was electronically published to the members and witness.] Q. Do you recognize that at all? A. [Reviewing Photo P-2 of PE 2.] No. Q. So this is not Lieutenant Commander Penland's home, the home you house-sat in? A. I'm not too sure. Q. Well, you're not too sure. You just testified you house-sat for her on multiple occasions for multiple weeks. You don't know what the house looks like?

A. Right. I go there late and I leave early. That's pretty much it.

697 Q. So you've never really been to Lieutenant Commander Penland's house, have you? A. Just house-sat for her. That's it. Q. Well, I'm showing you photos right now and you can't even tell us whether or not it's her house. A. I'm not too sure. I can't recall. Q. Okay. I'm going to show you Prosecution Exhibit 2, P-5. [Photo P-5 of PE 2 was electronically published to the members and witness.] Do you recognize that photo? A. Not really. Q. This wasn't one of the photos that your wife confronted you with when you were sleeping over or spending the night in January that she had found on your laptop? A. It could be. She had a bunch of photos on her laptop. Q. So you've never seen this photo before? A. I'm not too sure. I don't think so. Q. And I know this is a sensitive question, but it has to be asked. There's a mole on the shaft of that penis there. Do you have a mole similar to the mole in that photo on your penis? A. Probably. Q. So that is your penis there? A. My wife and I, we took some pictures together, I mean. Q. So this is a photo of you having sex with your wife?

A. I'm not too sure.

698 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.

699 [Photo P-38 of PE 2 was electronically published to the members and witness.] Q. Another photo that was found on your laptop by your wife. Who is that person, do you know? A. It looks like--it looks like Commander Penland. Q. Do you recognize the tattoo on the left arm? A. No, I don't. Q. So you've never seen her have--you've never seen her left arm before? A. No, I don't think so. Q. But you recognize that person to be Lieutenant Commander Penland? A. It could. Q. And can you identify whose penis is in that photo? A. No, I can't. Q. Can you say with any certainty whether or not it's your penis? A. It's not mine. Q. So if your wife were to have testified here in court under oath that that was your penis and she recognized it, she would be lying? A. Yes. Q. Are you circumcised or uncircumcised?

A. I am.

700 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.

701 Q. Well, you spent over six years--five years married to your wife and you dated her before. You can't tell the court with any certainty what--if that's her, your wife or not? A. I mean I can tell, but, I mean---- Q. Isn't the truth that that's actually you having sex with Lieutenant Commander Penland? A. No. Q. And there's P-32. [Photo P-32 of PE 2 was electronically published to the members and witness.] Is that the mole that's on your penis? A. I don't know. TC: I'm publishing to the members what has been entered into evidence as Prosecution Exhibit 1. [PE 1 was electronically published to the members and witness.] Q. This was entered into evidence as the thumbnails that were recovered off of your computer. Do these photos look familiar to you? A. You showed me a couple photos. Q. Right. Now, your testimony was that you had borrowed Lieutenant Commander Penland's camera and took some pictures of some bruises or scarring on your body; is that right? A. Correct. Q. Okay. I want you to briefly look through these photos here. Tell me which of those photos were the ones you took of your body. A. None.

702 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?

703 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.

704 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?

705 A. Probably one of the times when I was housesitting for her I just borrowed her camera and just took pictures. A. Oh, okay. So we're back to housesitting again. So you house-sat for her sometime in December, too? A. I'm pretty sure I did. Q. So now I'm trying to count all the incidents of housesitting. We have a housesitting incident now after Christmas but before the incident on PRINCETON, correct? A. Correct. Q. So now you house-sat for her sometime in December, too. That's why you borrowed her camera? A. Even housesitting, I asked her if I could just borrow her camera and take some pictures and that's it. Q. So you maybe didn't get the camera when you were housesitting; you just went to her house and asked her to borrow the camera? A. I'm not too sure. Q. You can't recall that at all? A. It's foggy, so---- Q. Well, wouldn't it have been kind of a traumatic situation; I mean, you've just been scratched on your ear and you want to document it; I mean you don't remember that event at all? A. Most of what happened to me and my wife I try to forget.

706 Q. So you just selectively forgot how you--who you got the camera--well, you can remember you got the camera from Commander Penland, right? A. Correct. Q. But you can't remember under the circumstances in which you got it? A. [No audible response.] Q. Let me ask you this. Did you take the camera from her house or did she give it to you? A. No. I took the pictures and then I hooked up the cable to the computer. Q. That was not my question. How did you get the camera? Did you go to her house and take it? Did you take the cable. Or did she give it to you? A. I went to her house and that's it. Q. And did what? A. Went to her house, took the pictures, downloaded them to my computer and that's it. Q. Was she--oh, okay. So you took the photos in her house and downloaded them there and just so the camera never left the house? A. No. Q. Was she home at the time? A. No, I don't think so.

707 Q. How did you know where her digital camera was? A. Well, before she left, she told me like--I asked her about it. She said okay, and that's pretty much it. Q. But you weren't living at her house at the time because you were living with your wife at the time, right? A. I wasn't living with my wife. Q. Well, you were staying at your house that you were paying the mortgage on with your wife; you were staying there, right? A. Correct. Q. But so you drove to Commander Penland's house. She wasn't home. You took photos at the house. The camera never left the house. And then you downloaded your laptop. That's the story? A. Correct. Q. How did you get into Lieutenant Commander Penland's house? A. I was housesitting for her. Q. Oh, you were housesitting at that time. But you just testified earlier that when you house-sit, you stay at the house. You eat your meals there, you take showers there, you sleep there. So you weren't house sitting at the time, were you? A. Like I said, I can't really recall. Q. How did you know where she kept her camera? You just had used it in the past? A. No, I didn't say that.

Q. Did she give you permission to use her camera? A. [No audible response.]

708 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.

709 Q. Oh. So the photos that are in these--in--the photos that are here, these thumbnails, some of those photos were just extra photos that have been put into that thumbnail group. They're not-- these are not all the photos that were downloaded off that camera? A. I don't know. I don't know what she did with the downloading. Q. Well, you certainly know--you've admitted to the members that these photos were on your computer. Is it your testimony here today that the photos that are represented in these thumbnails were not the photos that are on your computer? A. I'm pretty sure some of them are not. Q. Pretty sure. I mean is that an affirmative yes, some of these are different or is that just you just can't remember because you blocked all this out? A. Like I said, the day she confronted me, you know, she claimed she got them off my laptop and she had all these pictures, didn't really pay attention to them, and she was still screaming at me. That's pretty much it. Q. Well, let me ask you this. If she didn't get them off your laptop, how would your wife had gotten such sensitive photos of Lieutenant Commander Penland? A. Like I said, it must have been a time when I extracted them from the camera to my laptop.

710 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.

711 TC: I am returning--I'm returning Prosecution Exhibit 1 and 2 and I'm retrieving Prosecution Exhibit 8 from the court reporter. I'm publishing Prosecution Exhibit 8 to the members. [PE 8 was electronically published to the members and witness.] Q. You testified on direct that this photo was taken in Virginia; is that correct? A. Correct. Q. It was taken by your wife? A. Correct. Q. Where was it taken? A. That was probably at a friend's house. Q. At a friend's house? A. When they were away, correct. Q. So you and your wife were alone at the time this photo was taken? A. Correct. Q. And the time frame was 2003, 2004? A. Correct. Q. Did--were you aware of this photo's existence? A. She took--she took the photos. She kept them. I'm not too sure. Q. So you didn't--after this photo was taken, you didn't--you never kept a copy of it?

A. No, I don't.

712 Q. Did you--did you ever know--do you know that your wife had distributed copies of this to anyone? A. I'm not too sure. Q. Why would you wife have kept a copy of this photo? IMC: Objection. Speculation. MJ: Commander Messer? TC: I think the witness can answer the question. I mean, he's familiar with his wife. I think I've laid an adequate foundation he knows his wife. MJ: Overruled. Q. Answer the question. A. Repeat, please. Q. Why would your wife keep a photo like this around? A. I mean, it's me, we're married; I don't know. Q. Now, that we heard testimony here that this photo was e-mailed to your wife at work from a hot mail account entitled "the other woman." Do you know who would own a hotmail account entitled "the other woman"? A. No, I don't. Q. And you have no knowledge of anyone that would have e-mailed this photo to your wife? A. No. Q. Do you believe your wife e-mailed it to herself?

A. Possible, yeah. I don't know.

713 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.

714 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.

715 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.

716 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.

717 Q. So there was never a phone call made by you on that day to Lieutenant Commander Moninger where you said, "Sir, I've got some personal business. This person's going to come to the quarterdeck and make these allegations" and then in response Lieutenant Commander Moninger told you "Hey, don't bring your personal business to my ship"? That never happened? A. I called him that day because I was having problems with my wife. Q. Oh, so you do--you do agree now that you did call Lieutenant Commander Moninger on that day? A. I think I did. Q. You think. Do you remember or don't you? A. I'm not too sure. Q. So why would you call Lieutenant Commander Moninger and tell him that this--I mean, so your testimony here today is that you didn't tell him anything about Lieutenant Commander Penland coming to inform the ship about your affair; you just told him you called him to tell him you were having problems with your wife? A. I mean, I called him on several occasions telling him I had some problems with my wife. We spoke about that. Q. So if Commander Moninger is to come into this courtroom and testify that you called him on that day and warned him about Commander Penland coming to the ship to make these accusations, he'd be lying?

A. Yeah.

718 Q. That's yes. And isn't it true, though, that Lieutenant Commander Penland had threatened you and said she was going to go to the ship. That's why you called. And then she actually did go to the quarterdeck of the ship that day. A. She didn't threaten me. Q. That's not true? A. No. Q. Now, we had--in our pretrial interview I asked you a question if you were aware that Lieutenant Commander Penland was contacting your wife and you told me yes, isn't that right? A. Correct. Q. What time frame were you aware of Lieutenant Commander Penland contacting your wife? Do you remember the rough dates? A. I'm not too sure. Q. Was it after your wife came back from deployment? A. I mean, it's obviously after that because she was underway. Q. What type of contact were you aware of that Lieutenant Commander Penland had with your wife? A. I'm not too sure. Q. Do you know why Lieutenant Commander Penland was contacting your wife? A. Huh-uh. Q. You don't have any idea?

A. No. I think they contacted each other. I'm not too sure when.

719 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.

720 Q. Did you often have many personal conversations with Lieutenant Commander Penland? A. There was a lot of mentoring conversations because I had a couple questions. Q. Well, what did--you talk about you had a mentor/mentee relationship with her. We've presented evidence to the court that hundreds of phone calls between Lieutenant Commander Penland's cell phone, your cell phone, her government cell phone, the quarterdeck of the USS PRINCETON, back and forth. What was discussed in all these conversations? A. Like I told you before, we had some--I had some--when I just got to PRINCETON, there were some problems with some chief because he was just crazy and we had some DLR issues. Q. So it took over hundreds of phone calls for you to sort out this one issue with the chief or did you discuss other stuff? A. I mean, she didn't just call me at the ship. Q. Well, isn't it true that you had more than a professional relationship, you had a personal relationship with Lieutenant Commander Penland? A. We're friends basically, but that's it. MEMBER [CDR TUCKER]: Your Honor? MJ: Commander, time out? Very well. Commander Messer, how much more?

TC: If we could have a brief recess. I'm almost finished up, sir, but I'd like just a brief recess to make sure I've covered

721 everything I want to ask this witness. MJ: Very well. It sounds like a good time to take a break then. Members, if you would please cover your notes. Subject to my standard instructions, you may depart on a brief recess. Please reassemble at five minutes after the hour. BAILIFF: All rise. [All persons did as directed.] MJ: The members may depart. [The members withdrew from the courtroom.] MJ: Court stands in recess. Carry on. [The court-martial recessed at 1255 hours, 23 May 2008.] [The court-martial was called to order at 1310 hours, 23 May 2008.] MJ: Bailiff, please ask the members to rejoin us. BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time. All others, please be seated. [All persons did as directed.] MJ: And, Lieutenant Commander Messer, you may continue your examination of this witness. TC: Thank you, sir.

722 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.

723 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?

724 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.

725 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.

726 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.

727 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.

728 Q. So your allegation now is that these photos have been doctored? A. I don't know. I don't know where they came from. I'm not too sure. Q. Well, let's look at the final photo here. This is P-12. [Photo P-12 of PE 2 was electronically published to the members and witness.] And what I find significant about this photo is on the upper left arm you can see---- IMC: Objection. He's not asking a question, he's testifying. TC: I'll get to my question, sir. MJ: Please do. Q. On the upper left arm above the bicep there's a mark there and maybe it would help you if I show you the actual original [handing exhibit to witness]. Does that help or can you see adequately on the video screen there? A. Yeah, I remember the other day when we spoke---- Q. Is that your arm? A. I remember saying that to you that it could have been my arm that day. I'm not too sure. Q. Well, do you remember in the interview I showed you this photo. I asked you about it. You weren't sure. Then I asked you to roll up your left sleeve---- A. Correct.

Q. ----and then we saw that mark there and you agreed, yes, that is me in the photo?

729 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.]

730 MJ: And that was done. You may resume your seat, Lieutenant. [The witness resumed the witness stand.] TC: Thank you, sir. Q. So, Lieutenant Wiggan, is it still your testimony here today that you're unsure whether or not that's you in that photograph? A. Correct. Q. And who's that person--the other person in the photograph, do you have any idea? A. No. TC: Thank you. I have no further questions. MJ: Redirect? IMC: Please, Your Honor. MJ: Very well. IMC: Thank you. REDIRECT EXAMINATION Questions by the individual military counsel: Q. Lieutenant Wiggan, you testified that when you and your wife took photographs of the two of you engaging in sexual relations together that there was alcohol involved. A. Yes. Q. How much alcohol had you had to drink? A. It was a lot. I'm not too sure. Q. Were you drunk?

A. Yes.

731 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.

732 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.

733 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.

734 Q. But you--and you--did you go there to meet her at that restaurant? A. No. Q. During the time that you have known Commander Penland, have you seen her out dating other men? A. [No audible response.] Q. Are you aware of her having any romantic interests in other men? A. I'm not too sure. I'm pretty sure she has her own private life. IMC: Thank you. I have no further questions. Thank you, Your Honor. MJ: Lieutenant Commander Messer? TC: Just real quickly. RECROSS-EXAMINATION Questions by the trial counsel: Q. On the [email protected] account did your wife have the password to that account? A. Probably did. Q. Probably. So you don't know for certain one way or the other? A. I'm assuming she did. There's a lot of stuff she hacked into from----

735 Q. Well, how would she hack into the account? Is she a computer expert? A. No. It's real simple if you know someone's thought process and you know what kind of passwords they use, it's pretty much easy to like figure them out. Q. So it's your testimony here today that you actually never told her the password to the account, you just presume that she guessed your password? A. Well, she guessed a lot of stuff, so. Q. What was the password to that Baja account? It's now expired, correct? What was the password to that account? A. It's been a while. Q. So you don't even remember? A. It was simple, something simple like her first name and my--and her last four. I don't think I need to repeat somebody's last four inside here. Q. Well, that's fine. But it was your wife's name and her last four digits of her Social Security number? A. Correct. TC: Thank you. No further questions, sir. MJ: Captain Callahan? IMC: Briefly, sir. [END OF PAGE]

736 REDIRECT EXAMINATION Questions by the individual military counsel: Q. Lieutenant JG Wiggan, you haven't been charged with adultery, have you? A. No. Q. You've been---- TC: Sir, this is outside the scope of recross. MJ: Captain Callahan? IMC: That's all I had, sir. Thank you. MJ: Very well. Lieutenant Commander Messer, anything further? TC: Nothing, sir. MJ: Questions from our witness--for our witness from our members? Commander Good and Commander Galvez. Negative response from the other members. And, Bailiff, if you provide the questions to our court reporter, she will mark them and then if you would take those to our trial counsel and defense counsel for their review. BAILIFF: Yes, sir. [Questions from CDR Galvez and CDR Good were marked as AE XLIV through XLVI and handed to trial counsel.] MJ: And let the record reflect that the questions are being provided to counsel for their review. [The members' questions were inspected by counsel for both sides, and handed to the military judge for questioning.]

737 EXAMINATION BY THE COURT-MARTIAL Questions by the military judge: Q. A question from Appellate Exhibit XLIV: Lieutenant JG Wiggan, have you received a copy of your final divorce decree from the appropriate court, San Diego County? A. My--my lawyer has that, sir. Q. Questions from Appellate Exhibit XLV: Lieutenant JG Wiggan, you testified that Lieutenant Commander Penland's visit aboard PRINCETON while in port San Francisco was related to the NNOA discussions with junior officers. Was there an NNOA conference or convention ongoing in San Francisco at the time? A. Not to my knowledge; I can't recall. Q. Do you know what business brought Lieutenant Commander Penland to San Francisco? A. It could have been the ship was in the area and she just stopped by and said hello to us; I don't know. Q. Questions from Appellate Exhibit XLVI: Lieutenant JG Wiggan, in your testimony you indicated that during the period in question you had several altercations with your wife in which "she scratched me up," to include visible wounds on your head. Question: Did you ever register a complaint about this with police or military authorities? A. I told my XO about it that we had a couple altercations.

When I spoke to my lawyer about it, he said "Basically you need to stay away from the house because if she had called the police, they

738 would have came in and they would have locked you up." So that was his advice. Q. I think you may have answered the second part of the question, but I'll ask it anyway. You may want to expand your answer. Did you discuss these visible wounds with your chain of command aboard PRINCETON, for instance, to your Chief Engineer, Lieutenant Commander Murphy, or the XO, Lieutenant Commander Moninger? A. To the XO, I mainly stay in contact with the XO because it was embarrassing as it was. MJ: Follow-on questions in light of these? Commander Messer? TC: Yes, sir. RECROSS-EXAMINATION Questions by the trial counsel: Q. Just exactly--when exactly did you address that with the XO? A. I addressed that with the XO, I think it was in early 2007 or late 2006, and it was ongoing complaints to the XO saying I'm having problems. Q. Well, was your conversation that you were just having problems with your wife or was it specifically that you had been scratched by your wife? A. Problems in general meaning everything. Q. So did you ever discuss the injuries that you had talked about earlier with the XO? A. Pretty sure I did.

739 Q. So on multiple occasions? A. Multiple occasions I was talking to him for guidance and counsel for stuff she was doing to me, trying to get more money out of me and so forth. Q. So if we call Lieutenant Commander Moninger back as a witness, he'll be able to confirm that on several occasions you discussed the scratches and injuries caused by the wife? A. If he can recall. There was some time he told me just keep your stuff off the ship and just listen to my lawyer, and that's what I did. TC: Okay. Thank you. MJ: Captain Callahan? IMC: No. Thank you, Your Honor. MJ: Follow-on questions from our members? Affirmative response from Captain Booker. And I will return Appellate Exhibits XLIV, XLV and XLVI for our court--to our court reporter for inclusion in the record. And again, if you would please have the next question marked by our court reporter. [The question from CAPT Booker was marked as AE XLVII, inspected by counsel for both sides, and handed to the military judge for questioning.] MJ: Let the record reflect that counsel for both sides have had an opportunity to review the question, which has been marked Appellate Exhibit XLVII.

740 EXAMINATION BY THE COURT-MARTIAL Questions by the military judge: Q. Lieutenant JG Wiggan, did you provide photos to your attorney or XO, before deleting from your laptop, showing your injuries? A. I think I may have shown my attorney, Steve, the photos. And based on the conversation with--what he said was "Hey, you're kind of lucky. If the cops had gotten called, you'd have been the one going to jail." I think I kind of like dropped the issue right then. Because between--the story was pretty much consistent between my XO and my lawyer. They said "You being the bigger person, they're not going to believe your story. So just stay away from the house," and that's pretty much it. MJ: Follow-on questions in light of those, Captain Callahan? IMC: May I have a moment, sir? MJ: Certainly. REDIRECT EXAMINATION Questions by the individual military counsel: Q. Lieutenant Wiggan, is it--from your experience in the Navy is it standard practice, when there are issues going on between a husband and a wife, that the individuals would be told to basically handle it on their own and just don't let it come onto the ship and interfere with them at work?

TC: Sir, I object to that question. It's outside the scope of the previous question.

741 MJ: Overruled. If you have an answer, Lieutenant, you can provide it. WIT: I'm not too sure how to answer that, but I would tell anyone that if you're having marital issues, try to keep it off the ship. Basically that's what I was told. When I went over to NLSO back in the summer of '06, that's the advice they gave me. They said hurry up and get the proceedings going and so forth and try to keep it off--keep it from work. IMC: Thank you. Thank you, Your Honor. MJ: Lieutenant Commander Messer? RECROSS-EXAMINATION Questions by the trial counsel: Q. Lieutenant, I don't think you were clear in your response. Did you ever show photos to the XO? A. I know I told him about the photos. Q. Did you show him the photos, yes or no? A. I'm not too sure. I don't think so. TC: Nothing further, sir. MJ: Captain Callahan? IMC: No. Thank you, Your Honor. MJ: Follow-on questions from our members? Negative response from all panel members.

[The witness was duly warned, temporarily excused, and withdrew from the courtroom.]

742 MJ: Members, this would be an appropriate time for a lunch recess, as I promised you it would come late today. I also anticipate that we may have a rather late session this evening, so please plan accordingly. If you need to bring in extra food, you are welcome to do that, although I do also anticipate there will be a dinner recess at some point so I can discuss issues with the counsel outside your presence, so there probably will be an additional opportunity to go procure some food. Subject to my standard instructions, members, if you would please cover your notes, you may depart on a lunch recess. I would ask that you return at 1430 hours. BAILIFF: All rise. [All persons did as directed.] MJ: Court stands in lunch recess. The members may depart. [The members withdrew from the courtroom.] MJ: Carry on. Court stands in lunch recess. [The court-martial recessed at 1338 hours, 23 May 2008.] [The court-martial was called to order at 1437 hours, 23 May 2008.] MJ: Bailiff, please ask the members to join the court. BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.]

MJ: The court is called back to order. Let the record reflect that all parties present prior to

743 the lunch recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Captain Callahan, does the Defense have additional evidence it would like to offer the members at this time? IMC: Yes, sir. Sir, the Defense calls Commander Milner to the stand. MJ: Very well. Bailiff, if you would please call Commander Milner. [The bailiff retrieved the witness.] COMMANDER LARRY D. MILNER, U.S. Navy, was called as a witness for the defense, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. For the record, Commander, can you please state your full name, spelling your last. A. Larry Donald Milner. The spelling of the last name is M-I-L-N-E-R. Q. And, sir, what is your current duty station? A. Right now I'm the current operations officer at JUSMAGTHAI; that's Joint U.S. Military Affairs Group Thailand. TC: Thank you, sir.

MJ: Captain Callahan, questions for the witness. IMC: Thank you, Your Honor.

744 Questions by the individual military counsel: Q. Good afternoon, sir. A. Good afternoon. Q. Sir, how long have you been in the Navy? A. I've been in the Navy roughly about 31 years. Q. And can you please give the members a brief overview of your time in the Navy. A. I enlisted in the Navy on May the 8th, 1973. I was commissioned in '76, did a combination of reserve time and active duty time accumulating to 31 years. Q. And what are some of the more recent billets you've had over your last couple duty stations? A. I was the--well, right now I'm at JUSMAGTHAI, the current Operations Officer there. Before that, I was at the Defense Language Institution up in Monterey. Before that, I was at the Navy War College. Before that, I was in CNFK in Korea. Before that, I was XO at FTCPAC. Q. And over the course of your career, approximately how many Sailors have worked for you? A. Approximately 500, 600. Q. And approximately how many officers have you had work for you over the course of your career? A. Probably be about 25, 30.

Q. And do you know Lieutenant Commander Penland? A. Yes, I do.

745 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.

746 Q. What type of things do you consider when you evaluate the military character of an officer in the Navy? A. A lot of things. Honesty, truthfulness, professionalism, adherence to the Navy core values and I don't know if I can say this, but, you know, in her belief in a higher being, God. That's those things that I use. Q. Based on your observations of Lieutenant Commander Penland, were you able to form an opinion as to her military character? A. Yes. Q. And what is your opinion of her military character? A. I think that Commander Penland's military character is outstanding; I truly do. IMC: Thank you, sir. No further questions, Your Honor. MJ: Lieutenant Commander Messer. TC: Yes, sir. CROSS-EXAMINATION Questions by the trial counsel: Q. Commander, you just testified that Commander Penland has outstanding military character. You're basing that opinion off your observations of--from when you worked with her; is that correct? A. Yes. Q. And when was the--when did--when was the last time you worked together? A. 2003.

747 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?

748 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.

749 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.

750 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

751 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.

752 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

753 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

754 stuff came up. I know that factually, yes. Q. Now, sir, you testified that the things that you find important in a Naval officer are honesty, trustworthiness or truthfulness, the Navy core values. Do you believe somehow who--and this is a hypothetical. If someone, an officer, were to send nude photos to an enlisted person, albeit nude photos of their husband, do you think that's proper conduct for an officer? A. Did she do that? Q. Sir, that's the allegation that is before this court. I've asked you a hypothetical question. A. Well, see, that hadn't been proven. You know, I--there was nothing there that convinced me that---- Q. It's a hypothetical question, sir. Can you answer the question. A. If she--if anybody did that, that wouldn't be a good thing to do, no. Q. And what about calling the spouse of another person and trying to influence them to divorce their spouse through sending them photos or telling them that their spouse was being unfaithful, is that conduct that would becoming of an officer in your opinion? A. If that's what the phone calls were made for, I agree. TC: Thank you, sir. I have no further questions. MJ: Captain Callahan, redirect?

IMC: May I have a moment, Your Honor? MJ: Certainly.

755 IMC: No. Thank you, Your Honor. MJ: Questions from our members? Negative response from all panel members. Does either side desire the witness subject to recall for purposes of this trial? IMC: May I have a moment again, please, Your Honor? MJ: You certainly may. IMC: If I may be permitted to briefly---- MJ: Certainly. IMC: Thank you, sir. REDIRECT EXAMINATION Questions by the individual military counsel: Q. Commander Milner, to your knowledge have the equal opportunity complaints been fully resolved or are they still pending appeal? A. I believe that they're still pending appeal. That's what I believe. IMC: Thank you, sir. Nothing further, Your Honor. MJ: Lieutenant Commander Messer? TC: Nothing from the Government, sir. MJ: Questions from the members? Negative response from all panel members.

[The witness was duly warned, temporarily excused and remained in the courtroom.]

756 MJ: Further evidence from the Defense on the merits of this case? IMC: Sir, Defense calls Captain Johnson. MJ: Very good. Bailiff, if you would please call the witness on behalf of the court. [The bailiff retrieved the witness.] CAPTAIN MICHAEL H. JOHNSON, U.S. Navy, was called as a witness for the defense, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Captain, for the record, could you please state your full name, spelling your last. A. Michael H. Johnson, J-O-H-N-S-O-N. Q. And, Captain, what is your current duty station? A. Deputy Commander, CTF-53 in Bahrain. TC: Thank you, sir. Your witness. MJ: Captain Callahan. IMC: Thank you, Your Honor. Questions by the individual military counsel: Q. Good afternoon, sir. A. Good afternoon. Q. Sir, how long have you been in the Navy for?

A. This June 26 it will be 34 years.

757 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

758 time it was Lieutenant Penland. She was serving as Legal Officer there at FTCLANT. Q. And approximately how much interaction would you have with her during that time? A. Probably weekly, because at the time the XO asked me to see if I could mentor her because they did not have any other Supply Officers at FTCLANT and they wanted me to be as a mentor to her, so I would have weekly interaction with her. Q. Did you have an opportunity to observe her work while she was there, sir? A. Yes. Q. Did you have an opportunity to observe her character while she was there? A. Yes. Q. Did you have an opportunity to observe her leadership while she was there? A. Yes. Q. What type of things do you consider when you evaluate the military character of an officer in the Navy, sir? A. Honesty, to do the right thing regardless of the circumstances or, you know, when it comes to be--to having to make the hard call, to make the hard choice. That to me kind of exemplifies where an officer is going to stand for me and my character reference to them.

759 Q. Based on your observations of Lieutenant Commander Penland, were you able to form an opinion as to her military character? A. Yes. Q. And what is your opinion of her military character, sir? A. Thus far I feel it's very strong. She would make the hard call and some days it was not a popular call, but she would make the hard call in trying to be the right one. Q. Sir, are you aware if you were named as a witness to an IG complaint that she filed? A. Yes. Q. Were you ever contacted and thoroughly interviewed as a result of being a witness on that? A. I was contacted. Thoroughly interviewed, I would question that. I was asked in what direct contact I had in regards to the IG and I did not have anything directly because most of my--actually all of my contact regarding the IG, the complaint and so forth, was through Lieutenant Commander Penland. When I explained that to the investigating officer, she says "Thank you very much. That's hearsay. No further questions." IMC: Thank you, sir. I have no further questions. Thank you, Your Honor. MJ: Lieutenant Commander Messer. [END OF PAGE]

760 CROSS-EXAMINATION Questions by the trial counsel: Q. Captain, when did--when did you stop acting as a mentor to Lieutenant Commander Penland, or are you still a mentor to this day? A. I'm still to this day. Q. Has your interaction continued to be weekly with her or was that only when you were--when she was working with you? A. Only when I was working with her at FTCLANT. Q. When did that relationship or that arrangement end? When did she stop working for you or with you? A. Like I said, around 2003 when I left FTCLANT, went to Bahrain the first time. Q. So, sir, you were--you observed her performance from 2001 to 2003 roughly? A. Roughly there. Q. And since that time, have you had the opportunity to view her performance as a Naval officer? A. Yes, when she was on board I believe the STOUT and I was at SURFLANT. Q. And what was your interaction with her during that time? A. Usually have to deal with her regarding supply related matters. I was the 412 which took care of all the stock control issues, anything related to the supply side of the house, not the services, but supply side of the house I would interface with Lieutenant Commander Penland.

761 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.

762 Q. You'd still maintain the same opinion of her? A. I think so. TC: Thank you, sir. I have no further questions. WIT: Yes, sir. MJ: Redirect? IMC: No. Thank you, Your Honor. MJ: Questions from our members? Negative response from all panel members. [The witness was duly warned, temporarily excused and withdrew from the courtroom.] MJ: Further evidence from the Defense on the merits of this case? Captain Callahan? IMC: Yes, sir. Sir, at this time I'd request a five-minute recess to---- MJ: Very well. IMC: ----check the availability of the other witnesses that are lined up, sir. MJ: Members, if you would please cover your notes. Subject to my standard instructions, we'll take a recess here. Please reassemble at quarter after the hour. The members may depart on recess. BAILIFF: All rise. [All persons did as directed, and the members withdrew from the courtroom.]

MJ: Carry on, please. Court is in recess. [The court-martial recessed at 1506 hours, 23 May 2008.]

763 [The court-martial was called to order at 1521 hours, 23 May 2008.] MJ: Bailiff, please ask the members to join us. BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Captain Callahan, additional evidence from the Defense on the merits of this case? IMC: Sir, at this time the Defense calls Captain Noel telephonically. MJ: Very well. [Two unsuccessful attempts to reach witness via phone transpired.] MJ: Captain Callahan, do you have another witness you'd like to call or would you like to take a recess at this point? IMC: Can we take a recess because the other witnesses--the other two witnesses, one is telephonic trying to be reached and the other one is--that's the one attorney that hasn't showed up yet.

MJ: Very well.

764 TC: Sir, let me try just one more time. I mean we literally just talked to him two minutes ago. I'm not sure---- MJ: Okay. A (703) number, what, northern Virginia? TC: (410), sir. MJ: Oh, (410). CAPTAIN JACK S. NOEL, II, U.S. Navy, was telephonically called as a witness for the defense, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. For the record, could you please state your full name, spelling your last. A. Jack Sherm Noel, II, N-O-E-L. Q. Thank you, sir. And what is your current duty station? A. Project manager at the Missile Defense Agency. TC: Thank you, sir. I'm now going to turn you over to Captain Callahan who has some questions for you. WIT: Okay. Questions by the individual military counsel: Q. Good afternoon, sir. Captain Callahan speaking. Can you hear me? A. I sure can. Q. Sir, how long have you been in the Navy for? A. Let's see, 20--23 years commissioned service, one year enlisted, four years at the Naval Academy, so July 17, 1980 I enlisted.

765 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.

766 Q. And when was that, sir? A. That was--I reported in February of 2004 and that she left in January of 2006. Q. And approximately how much interaction would you have with her on a daily basis, sir? A. Once, twice daily minimum. Q. Did you have an opportunity to observe her work, sir? A. I did. Q. Did you have an opportunity to observe her character? A. I did. Q. Did you have an opportunity to observe her leadership? A. I did. Q. And what type of things do you consider when you evaluate the military character of an officer in the Navy, sir? A. Well, professional competence, leadership ability, leadership by example, whether or not they take care of their troops, their Sailors. Q. Sir, based on your observations of Lieutenant Commander Penland were you able to form an opinion as to her military character? A. I was. Q. And what is your opinion of her military character? A. Oh, I think she's a fine officer, outstanding Supply Officer.

Q. Sir, do you also know a Lieutenant JG Mark Wiggan? A. I do. He was a Chief when he worked for me.

767 Q. And when was that, sir, that he worked for you? A. I don't remember exactly when we commissioned him, but he left the day we commissioned him. He worked for me, well, at least two cycles. I know he was my number one chief two cycles in a row, two years in a row. TC: Sir, sorry. Captain, I'm sorry to interrupt you. Sir, I'm going to object here in that this is irrelevant as to Lieutenant JG's--I believe this is going down to what his performance is as an officer or as a Chief Petty Officer. MJ: Captain Callahan? IMC: Sir, I'm laying a foundation to him to testify that in his opinion Lieutenant JG Wiggan is an honest individual. I believe his credibility has been attacked here in this court, so this would be an appropriate line of questioning. MJ: Very well. You may lay the foundation for that pertinent character trait. IMC: Thank you, Your Honor. MJ: Objection overruled. Q. Sir, it's Captain Callahan again. Can you hear me? A. I can. Q. Sir, approximately how much interaction would you have with then Chief Wiggan on a daily basis? A. I saw him at least daily. I spent a lot of time in

Engineering, so at least daily.

768 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.

769 MJ: Lieutenant Commander Messer, questions for the witness? TC: Yes, sir. Thank you. CROSS-EXAMINATION Questions by the trial counsel: Q. Captain, you testified that you knew Lieutenant Commander Penland from 2004 to 2006. What interactions have you had with her since January of 2006? A. I've spoken to her on the phone maybe once a quarter; you know, we've kept in touch in that way, as I have with I think all but maybe--well, my Chief Engineers haven't really been good at keeping in touch, but I've kept in touch with all my other department heads. Q. And, sir, have you had an opportunity to discuss the charges pending against Lieutenant Commander Penland at this court- martial with Lieutenant Commander Penland? A. Yeah, I have. I wouldn't say with any great detail, but we--she brought to my attention--well, she was concerned about it and called me, you know, as a mentor, at least a year ago when I guess things first started to bubble to the surface on that. Q. What did she tell you the nature of the charges were? A. She told me that she was being charged with adultery and she told me that there were some pictures on the camera that she had loaned to Lieutenant Wiggan and she also told me about some--about some issues at the command that had to do with improper contracting practices or things of that nature and that she frankly had made us-- when I say "us," my command--aware of almost immediately after

770 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.

771 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

772 wife, NC1 Lewis-Wiggan. If that were to be found to be true, would that change your opinion of Lieutenant Commander Penland? A. Yeah. I think if that were true and I had knowledge that I guess, you know, that those photographs or whatever, the e-mail or whatever it was true, I think that, you know, I'd have to reassess my evaluation of Lieutenant Commander Penland. I don't know how you prove that this day and age. Q. We're working on it. A. And I personally have seen photographs of Osama bin Laden riding a Tomahawk. Q. Yes, sir. Well, that's why we're having this court- martial, to determine that and, no, Osama bin Laden is not here. And if Lieutenant Commander Penland were found to have lied to a senior officer, telling him that she did not call someone when, in fact, she actually did, would that change your opinion of her character? A. Well, I think if I were lied to, then I would certainly, you know, trust that person less. I would probably evaluate the circumstances involved, but, you know, I'd look twice before I believed anything that person said again. TC: Thank you, sir. I have no further questions. MJ: Captain Callahan, redirect? IMC: Yes, sir.

MJ: Very well.

773 REDIRECT EXAMINATION Questions by the individual military counsel: Q. Sir, during that time that you knew and worked with Commander Penland, were you able to form an opinion as to her character for honesty? A. I thought she was very honest. I thought--I'd say with regard to supply, in particular, I was--you know, that's an area that can get a Commanding Officer in trouble and that was one area I was never concerned with. IMC: Thank you, sir. Nothing further, Your Honor. MJ: Lieutenant Commander Messer? TC: Nothing further, sir. MJ: Questions from our members? Negative response from all panel members. [The witness was duly warned and temporarily excused telephonically.] MJ: Counsel, desire a brief recess in place? IMC: Yes. May we have a brief recess to check on the other witnesses, sir? MJ: Very well. Members, please cover your notes. Subject to my standard instructions, you may depart on a recess. Please reassemble at quarter to the hour. BAILIFF: All rise.

[All persons did as directed.]

774 MJ: The members may depart on a recess. [The members withdrew from the courtroom.] MJ: Carry on, please. [The court-martial recessed at 1539 hours, 23 May 2008.] [The court-martial was called to order at 1552 hours, 23 May 2008.] MJ: Bailiff, please ask the members to join us then. BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: Court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Captain Callahan, call your next witness, please. IMC: Sir, the Defense calls Steven Arnold. MJ: Very well. Bailiff, if you would please call the witness on behalf of the court. [The bailiff retrieved the witness.] [END OF PAGE]

775 STEVEN H. ARNOLD, civilian, was called as a witness for the defense, was sworn, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Mr. Arnold, if you could, once you're settled in there, for the record just state your full name, spelling your last. A. My name is Steven Hernandez Arnold, A-R-N-O-L-D. Q. And, Mr. Arnold, do you have a business address? A. I do. It is 1850 Fifth Avenue, Suite A, San Diego, California 92101. TC: Thank you, sir. Your witness. MJ: Captain Callahan. IMC: Thank you, Your Honor. Questions by the individual military counsel: Q. Good afternoon, sir. A. Thank you. Q. Sir, do you know a Lieutenant Junior Grade Mark Wiggan? A. Yes, I do. Q. How do you know him? A. He's been a dissolution client of mine for quite some time. Q. And what is the status of his marriage? A. As of today he is divorced legally. He's a single person.

So is Kim Wiggan. The property division is set for a settlement conference in two weeks. There's good faith efforts to settle what's

776 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."

777 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

778 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

779 course, with Mrs. Wiggan. She's not returned anything. She moved and emptied the house, and I have a series of letters asking Mr. Staley to have his client return some items that are actually very personal and irreplaceable, some sentimental stuff from his family, and the attitude unfortunately that I received from Mr. Staley is, uh, you know, it's not a big deal. He wanted a briefcase back that belonged to him and Mr. Staley's office delivered a briefcase to my office and I showed it to Mr. Wiggan and it was Kim Wiggan's briefcase, not his. So I took it back with a letter saying this is not the right briefcase; in fact, he had some papers in his briefcase that he wanted back. He's not received his briefcase or the papers back. And about two weeks ago I ran into Paul Staley in court on another matter and he said, "Well, let's get on"--I said, "About Wiggans"--he said, "Oh, are they"--he said, "Is he ever going to get over that briefcase?" You know, I said, "Well, Paul, it's his. You know, we're not done." So personally I don't think there's been much consideration shown by Mrs. Wiggans as to any property that Mark still owns and has a right to, and that would be separate property, things that he owned full and clear before they were married. IMC: Thank you, sir. No further questions, Your Honor.

MJ: Lieutenant Commander Messer.

780 CROSS-EXAMINATION Questions by the trial counsel: Q. Mr. Arnold, you're Mark Wiggan's lawyer? A. Yes. Q. So you're paid to represent him? A. Yes. Q. He's paying you large sums of money to represent him in his divorce? A. There's never enough money, sir. Q. You're his advocate, though? A. I am, in civil court, in dissolution, Family Law Court, Superior Court of California. Q. And you would agree that--you'd agree that Chief Lewis- Wiggan is also represented by counsel. I think you mentioned his name, Mr. Staley? A. Yes. Q. So any decision---- A. Well, I'm sorry, sir. Chief Lewis-Wiggan is? Q. Kimberly Wiggan. A. Kimberly. Okay. I'm not familiar with--I don't refer to her that way, but that's fine. Q. Her lawyer is Mr. Staley. A. Is Paul Staley.

Q. Paul Staley. A. Correct, yes.

781 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.

782 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.

783 Q. Right. Yes, sir. And with respect to the allegations of Lieutenant JG Wiggan about scratches or whatnot, to your knowledge was any legal action ever taken by law enforcement or any other agency with respect to him being allegedly attacked by his wife? A. Not that I'm aware of. Q. And did you ever file any complaints on his behalf with law enforcement or request that law enforcement take action? A. No. Q. And have you ever filed a civil lawsuit or any other civil matter against Lieutenant JG Wiggan [sic] outside of the divorce proceedings seeking damages for those scratches or anything of that nature? A. Have I ever filed anything on behalf of Mr. Wiggan for any---- Q. Yes, against his wife in reference to---- A. In a civil setting? Q. Yes. A. No, I have not. TC: Thank you, sir. I have no further questions. MJ: Captain Callahan? IMC: Briefly, if I may, sir. [END OF PAGE]

784 REDIRECT EXAMINATION Questions by the individual military counsel: Q. Sir, you said that the bifurcation is stipulated between the parties. When something is stipulated before the court, is it agreed and sworn by the parties that that is, in fact, true? A. Yes, and they both signed it, myself and Mr. Staley signed it, and it is under oath, under penalty of perjury. Yes. Q. And what is the date it says the two of them were separated? A. It says in that document, which I presented a copy to you, Paragraph 1(c), under Statistical Information, the parties were separated March 1, 2006. Q. And in common vernacular, is that separation also sometimes referred to as a "legal separation"? A. In common vernacular, it is, but that's not an accurate term to use. IMC: Thank you, sir. Thank you, Your Honor. MJ: Lieutenant Commander Messer? TC: No follow up, sir. MJ: Questions from our members? Affirmative responses from Commander Grundy and Commander Kelsch. Negative response from the other panel members.

And let the record reflect that the questions are being provided to the court reporter for marking as the next appellate

785 exhibits in order. [Questions from CDR Grundy and CDR Kelsch were marked as AE XLVIII and XLIX, respectively.] MJ: And let the record next reflect that the questions are being provided to counsel for their review. [The members' questions were inspected by counsel for both sides, and handed to the military judge for questioning. MJ: Thank you. EXAMINATION BY THE COURT-MARTIAL Questions by the military judge: Q. Question from Appellate Exhibit XLVIII: Mr. Arnold, when Lieutenant JG Wiggan showed you the pictures of his scratches, did you tell Lieutenant JG Wiggan or give him advice to not pursue the issue because if the police were to get involved, they would likely arrest him? A. No, sir. Q. Question from Appellate Exhibit XLIX: Mr. Arnold, once Lieutenant JG Wiggan showed you the pictures of scratches, why did you not keep this for future reference in case they were needed in future of divorce case? A. I'm presented with a lot of documentary, photographic, whatever type of evidence from clients. This was early on in the case. The dynamics of the case had not become apparently what they are at this point, although from my end it's the same case that I've had, we're just finishing up with the property distribution. And he

786 did not have copies. I did not make a copy because my copy machine makes poor copies. Basically I wasn't interested. I saw them, I heard what he said and I--he kept them and I just knew to myself that should I need them or should he need them, apparently he would have them. I just didn't--I don't always keep copies of things like that, especially early on. In a dissolution action, I deal often with people initially who are pretty emotional about what's going on. It seems to get better and calm down as the procedure goes closer towards the finish. So I listened, I looked. I didn't not make a copy for any particular reason or to make one. It just--you know, I just looked and listened and gave him back the picture. MJ: Follow-on questions, counselors? Captain Callahan? IMC: No. Thank you, Your Honor. MJ: Lieutenant Commander Messer? TC: Just briefly, sir. RECROSS-EXAMINATION Questions by the trial counsel: Q. What format were those pictures in? Were they digital photos? Were they photo prints, four by sixes, do you remember? A. No. They were printout. Q. Printout from off like a computer? A. I guess. I'm not sure where they came from. TC: Thank you, sir. No other questions.

MJ: Captain Callahan, anything further? IMC: No. Thank you, Your Honor.

787 MJ: Additional questions from our members? Negative response from the members. [The witness was permanently excused and withdrew from the courtroom.] MJ: Further evidence from the Defense on the merits of this case? IMC: Yes, sir. Sir, at this time the Defense would call Petty Officer Lee. He is telephonically also. MJ: Very well. IMC: Recall Petty Officer Lee. It's the same Petty Officer Lee that was called earlier. MJ: Very well. PERSONNEL SPECIALIST FIRST CLASS CHESTON A. LEE, U.S. Navy, was telephonically recalled as a witness for the defense, was reminded of his oath, and testified as follows: MJ: Captain Callahan, your witness. IMC: Thank you, Your Honor. DIRECT EXAMINATION Questions by the individual military counsel: Q. PS1 Lee, it's Captain Callahan. Can you hear me? A. Yes, sir, I can. Q. PS1 Lee, did Chief--then NC1 Lewis-Wiggan ever show you any photographs dealing with either her husband or her husband and somebody else?

A. Yes. She might have shown me maybe two photos, if I'm not mistaken.

788 IMC: Thank you. Nothing further, Your Honor. MJ: Lieutenant Commander Messer? CROSS-EXAMINATION Questions by the trial counsel: Q. PS1, what photos were you shown? What did those photos look like? A. If I'm not mistaken, sir, I think one photo might have been of I think just maybe her husband and if there was a second photo, I think it might be her husband and another woman, but I don't remember ever seeing her face or anything like that. Q. And why did she show you those photos? A. I don't even know exactly when I saw them. Again they were already--the photos had already been known about. I had heard about the photos and, like I said, I think she did show me two. If she did, it was in her office. It was just us two. We were talking about the situation and she just might have shown them to me to show me what type of photos were being seen or taken. Q. And what was the context of why she showed them to you? Was she trying to explain what was going on or did you ask her? A. Right. Yes, sir. She was kind of updating me on what the status was, what else was coming up and what she might expect to see. Q. What was her demeanor like at the time when she showed them to you? Was she----

A. I'd have to say, sir, maybe--again, maybe trying to understand why, not a hundred percent sure, you know, why this was

789 happening or what was going on or what caused the situation to come about. Q. Okay. A. I guess she was kind of---- Q. Go ahead, PS1. A. I guess she was kind of upset. I don't think--angry is not the word, but just upset, disappointed I guess. TC: Thank you, PS1. I have no further questions. WIT: Yes, sir. MJ: Captain Callahan? IMC: Briefly, Your Honor. REDIRECT EXAMINATION Questions by the individual military counsel: Q. PS1 Lee, it's Captain Callahan again. A. Yes, sir. Q. What medium was the photographs on when she showed them to you, that is, were they on a computer, were they printed out, were they Polaroid pictures? A. Oh. I believe they were on a computer. I'm not sure if it was a laptop or whatnot. IMC: Thank you. Nothing further, Your Honor. MJ: Lieutenant Commander Messer?

TC: No, sir.

790 MJ: Questions from our members? Negative response from all panel members. [The witness was reminded of his warning and temporarily excused telephonically.] MJ: Further evidence from the Defense on the merits of this case? IMC: Sir, if we may have about a 15-minute recess to discuss whether we'll present any further evidence. MJ: Very well. Members, subject to my standard instructions, please cover your notes. You may depart the courtroom on a recess. Please reassemble at 1630 hours. BAILIFF: All rise. [All persons did as directed.] MJ: The members may depart on recess. [The members withdrew from the courtroom.] MJ: And this would be a good time to contemplate any rebuttal evidence, as well, from the Government. Court stands in recess. Please reassemble at 1630. [The court-martial recessed at 1615 hours, 23 May 2008.] [END OF PAGE]

791 [The Article 39(a) session was called to order at 1635 hours, 23 May 2008.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the recess are again present before the court at this time, except we've had a substitution in court reporters. LN2 Redding has been detailed court reporter for this session and she has been previously sworn. During the recess, defense counsel informed the Court that it anticipated resting at this time. Is that, in fact, your position, Captain Callahan? IMC: Yes, sir. Sir, the Defense rests. MJ: Very well. Lieutenant Commander Penland, I just want to discuss briefly with you your right to testify at these proceedings. That is your own personal right and decision. Have you discussed this matter with your defense counsel? ACC: Yes, sir, I have. MJ: You also have the right to remain silent and that is an absolute right, as well. Have you discussed that right with your counsel? ACC: Yes, sir, I have. MJ: Is it your own personal decision to exercise your right to remain silent and not testify at these proceedings?

ACC: Yes, sir, it is.

792 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.

793 MJ: Any further rebuttal anticipated? TC: No, sir. MJ: Do you have your rebuttal witnesses standing by? TC: No, sir. They have been called and they were instructed to be here at 1700. I think they should be here within the next 15 minutes. I'd ask that the recess just be allowed to continue and I'll report to the Court when my first witness is here. MJ: Captain Callahan, given the outlined proffer of rebuttal testimony, do you anticipate any objections to those areas of rebuttal? IMC: Not at this time, sir, but certainly if it---- MJ: If it goes beyond those areas? IMC: ----goes beyond any area that I feel is improper or if I think of any objection to those areas even, I will certainly raise it, sir. MJ: I am fully confident you will. Anticipated time frame for the total rebuttal case? TC: Forty-five minutes, sir. MJ: I don't really want to release the members on a dinner recess quite yet since I want to put them in a recess for findings instructions discussions. TC: We did have a late lunch, too, sir, so. MJ: Very well. Anything else we need to discuss at this 39(a) session? TC: Nothing from the Government, sir.

794 MJ: Captain Callahan? IMC: No. Thank you, Your Honor. MJ: Very well. This 39(a) session is concluded. Bailiff, if you would please advise the members they can go stretch their legs, grab a snack or whatever. If they would please reassemble at 1700 hours. Carry on. Court's in recess. Carry on, please. [The Article 39(a) session recessed at 1639 hours, 23 May 2008.] [END OF PAGE]

795 [The court-martial was called to order at 1710 hours, 23 May 2008.] MJ: Bailiff, please ask the members to join us. BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Captain Callahan, does the Defense have any additional evidence to offer on the merits of this case? IMC: No, sir. Defense rests. MJ: Very well. Lieutenant Commander Messer, does the Government have any evidence in rebuttal? TC: Yes, sir, it does. MJ: You may proceed. TC: The Government calls Chief Zogaib to the stand. MJ: Very well. Please call Chief Zogaib. [The bailiff retrieved the witness.] [END OF PAGE]

796 STOREKEEPER CHIEF STACY L. ZOGAIB, U.S. Navy, was recalled as a witness for the prosecution, was reminded of her oath, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Chief, you testified earlier in this case and I know you may have already mentioned this to the members, but I'd just ask to quickly go over it again. Can you test--could you state how long you've been in the Navy. A. Almost 17 years. Q. And during that time, where have you served, just a quick overview. A. I have served at two SIMAs [ph] reserve center, a MEW [ph], a squadron, and now I'm with MESG Group ONE. Q. Okay. And what is your current duty station? A. MESG Group ONE. Q. And how long have you been there? A. I've been there for a year and a half, a year. I was TAD for a bit and then now I'm permanently assigned there. Q. Now, do you know the accused in this case, Lieutenant Commander Penland? A. Yes, sir. Q. How is it that you know her?

A. She was my SUPO.

797 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----

798 IMC: Objection. MJ: Basis? IMC: Sir, it's outside the scope of what is proper opinion testimony as to military character---- MJ: Commander Messer? IMC: ----giving specific acts of conduct. TC: Well, sir, I believe I have laid the proper foundation. I've now asked her what her opinion is. MJ: And we've heard the opinion. Are you permitted to go into specific acts or instances on direct exam? TC: No, sir. MJ: Objection sustained. Q. Chief, I would ask that you avoid referring to specific instances. Could you please elaborate on your opinion as to the military character of the accused. A. Her orders were---- IMC: Object again. At this point it's getting into other specific character traits. She's already testified as to the good military character, her opinion of good military character to rebut what was entered in by the Captains and the Commander. Now, at this point, that's all that's permissible under the rules, both through the 600 series and the 400 series. MJ: Lieutenant Commander Messer, can you ask a more focused question to avoid specific instances? TC: I can, sir.

799 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.

800 TC: Thank you. I have no further questions. MJ: Captain Callahan? IMC: May I have a moment, Your Honor? MJ: Certainly. CROSS-EXAMINATION Questions by the individual military counsel: Q. Good afternoon, Chief. A. Good afternoon, sir. Q. Chief, isn't it true that you and Lieutenant Commander Penland had--she officially reprimanded you after discovering an unauthorized commitment dealing with the purchase of dry suits for Squadron FIVE? A. No. Q. So there was never a time where Commander Penland sat down and had a discussion with you about whether or not dry suits you purchased were on a proper table of allowance, TOA, for Squadron FIVE? A. We had many discussions as my Supply Officer and her Chief, but there was not a formal reprimand, no. There was not--it was not-- Q. Did she--did she informally counsel you or reprimand you on it or say anything, even informally, that you had done it incorrectly or wrong? A. Not that I would consider a counseling, no. Q. Did she challenge the purchase and say it was done incorrectly? A. She--maybe, possibly. But that was her job.

801 Q. Did she also speak with you about tasking a civilian contractor to perform inherently government responsibilities? A. There were discussions about that and they were corrected. Q. To your knowledge, is Naval Coastal Warfare Group ONE currently under investigation for supply violations? A. We sat through an IG, we've sat through a FISC inspection, we've sat through a TICOM [ph] validation, and we came through wonderfully. We did excellent on our NAVSUP inspection. We set the standard for the TICOM validation. And when I spoke personally with the IG about our contracting, I was able to substantiate and provide the paperwork that he needed. Q. Are you aware whether those IG complaints are still open at this time? A. I do not know, sir. IMC: Thank you, sir. Nothing further. MJ: Lieutenant Commander Messer? REDIRECT EXAMINATION Questions by the trial counsel: Q. Chief, are any of those matters that counsel inquired into as far as you being counseled by the accused or talked to by the accused, have any of those matters in any way biased your opinion as to her military character? A. No, sir.

TC: Thank you. I have no further questions. MJ: Captain Callahan, anything further?

802 IMC: No. Thank you, Your Honor. MJ: Questions from our members? Negative response from all panel members. [The witness was reminded of her previous warning, temporarily excused, and withdrew from the courtroom.] MJ: Further evidence in rebuttal from the prosecution? TC: The Government would now call Commander Masi to the stand, sir. MJ: Very well. Please recall Commander Masi. [The bailiff retrieved the witness.] COMMANDER MATHEW J. MASI, U.S. Navy, was recalled as a witness for the prosecution, was reminded of his oath, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Commander, as a previous witness, I know you provided the members some background information on yourself. But just briefly how long have you served at MESG ONE, formerly Coastal Warfare Group ONE? A. Since October of '06. Q. And do you know the accused in this case? A. Yes, I do. Q. How is that you know the accused? A. She worked for me at NCWG, now MESG ONE. Q. And for what time frame did she work for you?

A. She worked for me when I got there in October '06 to February of '07.

803 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.

804 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.

805 Q. You'll have to limit it just to your opinion, sir. Based on all of the--all the officers that you've had work for you in the past, where would you rank Commander Penland against all of those other supply personnel? A. I'd rank her right at the bottom. TC: Thank you, sir. I have no further questions. MJ: Captain Callahan, questions for the witness? IMC: Yes, sir. CROSS-EXAMINATION Questions by the individual military counsel: Q. Sir, you checked in in the beginning of October of 2006? A. Yes. Q. And Lieutenant Commander Penland was your Supply Officer, correct? A. At the time I checked in, she was acting as the Supply Officer, yes. Q. And who had the primary authority for--to approve procurement requests? A. At the time, the way that it was set before I got there, she did. Q. And did she continue to maintain that? A. For a short period of time. Q. Isn't it true that you were frequently counseled, for want of a better word, by her for approving procurement requests while she was still acting as the Supply Officer?

806 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.

807 Q. You checked in in early October of '06. Are you aware of the fitness report that she was given at the end of October of '06? A. I'm aware of it, yes. I had no input into it. Q. Are you aware that the average member traits of 4.3, 4.3 on that? A. I mean--okay. IMC: [Conferring with accused.] Nothing further, Your Honor. MJ: Lieutenant Commander Messer, anything further from the witness? TC: Briefly, sir. REDIRECT EXAMINATION Questions by the trial counsel: Q. Commander, the defense counsel inquired into several complaints that had been lodged against the command and you were named in those complaints. To your knowledge, was the--were those complaints filed before or after the accused was issued a letter of instruction? A. After. Q. And to your knowledge, were those complaints issued before or after the command opened an investigation into the allegations that are before this court today? A. After. TC: Thank you. I have no further questions.

MJ: Captain Callahan? IMC: No. Thank you, Your Honor.

808 MJ: Questions from our members? Negative response from all panel members. Oh, affirmative response from Captain Booker. Negative response from the other panel members. [The question from CAPT Booker was marked as AE LI.] MJ: And let the record reflect that the bailiff is providing to counsel Appellate Exhibit LI for their review. [The member's question was inspected by counsel for both sides and then handed to the military judge for questioning.] MJ: Thank you. Let the record reflect that counsel for both sides have had an opportunity to review Appellate Exhibit LI. EXAMINATION BY THE COURT-MARTIAL Questions by the military judge: Q. Question from Appellate Exhibit LI: Commander Masi, who did CO, Captain Sturges, issue letter to giving procurement authority to? A. Which time? I mean there's been two letters of procurement authority. Lieutenant Commander Penland received one before I got there, and after I got there, shortly--like I said, I'm not exactly sure of the date after that--I did. MJ: Very well. Bailiff, if you would return Appellate Exhibit LI to Captain Booker for his signature. [The bailiff handed AE LI to CAPT Booker; CAPT Booker placed his signature on AE LI.]

809 MJ: Thank you. And you may return Appellate Exhibit LI to our court reporter. [The bailiff handed AE LI to the court reporter.] MJ: Follow-on questions in light of that question, Lieutenant Commander Messer? TC: No, sir. MJ: Captain Callahan? RECROSS-EXAMINATION Questions by the individual military counsel: Q. Sir, you had been there several months by the time you received that letter, hadn't you? A. Shortly after. I mean, two to three months, yeah. I'm not exactly sure of the exact date. IMC: Thank you, Your Honor. MJ: Lieutenant Commander Messer, anything further for the witness? TC: No, sir. MJ: Follow-on questions from our members? Negative response from all panel members. [The witness was reminded of his previous warning, temporarily excused and withdrew from the courtroom.] MJ: Further evidence from the prosecution in rebuttal? TC: Yes, sir. The Government would call Lieutenant Commander

Moninger to the stand. MJ: Very well. Please recall Lieutenant Commander Moninger.

810 [The bailiff retrieved the witness.] LIEUTENANT COMMANDER THOMAS P. MONINGER, U.S. Navy, was recalled as a witness for the prosecution, was reminded of his oath, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Commander, you've already had the opportunity to address the members with your background. These questions are in relation to your time when you were the XO of the USS PRINCETON. During that time, did you have a Sailor, Lieutenant JG Mark Wiggan that worked for you? A. I did. Q. And he was your Main Propulsion Assistant? A. That's correct. Q. Did you ever discuss his relationship with the accused in this case during that time that he worked with you? A. Yes, I did. Q. And what was discussed? A. What was discussed was that he had had relations with that--with Lieutenant Commander Penland. Q. And when you say "relations," what exactly do you mean? A. Relations of a sexual nature. Q. And he reported this to you?

A. He did. He reported it to me in a conversation that I had with him after I had received a phone call from the Executive Officer

811 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

812 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.

813 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

814 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?

815 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

816 the last ones leaving the ship that day. No one told me anything about--no issues with Lieutenant JG Wiggan had come up. I thought that phone call was somewhat odd that he would call me and tell me that. This is, you know, three months into my tour as XO, so I don't know him very well, I don't know his personal situation very well. But I was walking down the pier and I didn't see anybody and I got into my car at the head of the pier and I didn't see anyone, you know, running down the pier to make any kind of ruckus. So I thanked him for the call. I told him that, you know, "I appreciate what you're telling me." I vaguely remember, and this is--I'm not certain about this, but I vaguely remember discussing that--you know, I think the problem involved his wife and another woman and I think that was the scope of the conversation. I told him, you know, "Adultery is against the Uniform Code of Military Justice, but, you know, unless I find out about this officially, I don't really have anything to act on," and so again I appreciated his call. TC: Thank you, Commander. I don't have any other questions. Thank you very much. MJ: Captain Callahan? [END OF PAGE]

817 CROSS-EXAMINATION Questions by the individual military counsel: Q. Sir, did Lieutenant Wiggan ever make allegations of physical abuse from his wife? A. He told me that he had had an altercation with his wife, or rather she had had an altercation with him. I think the circumstances were he was trying to obtain his possessions from their house and--or something to that effect and that she had--that she had struck him or had attacked him somehow. And my concerns were--my immediate questions were, "Well, did you provoke it? Did you hit her?" "No, I didn't" was his response. Then my next question, "Were the police called? Did someone--you know, did someone--well, were the police called?" "No, they weren't." And I think he told me that he left. You know, he tried to get out of the situation. And I said "That's the right course of action." And then I think I asked, and I'm not entirely sure about this, but I think I asked if he was--you know, if he wanted to take any kind of official action or call the police himself and I--and he said no, to my recollection. But, yes, that is the circumstance by which I learned of--that there had been an altercation between--a physical altercation between his wife and himself. Q. I mean, just for clarity, your testimony is that Lieutenant

Wiggan was never charged with adultery? A. I don't understand your question.

818 Q. The command never charged him with adultery, he was never given mast for the---- A. Lieutenant JG Wiggan never went to mast on PRINCETON for adultery, that is correct. Q. He was never sent to a court-martial for adultery? A. He was never--he was not sent to a court-martial for adultery. Q. Not sent to a board of inquiry for adultery? A. I'm not--I'm not familiar with the term court of inquiry, but---- Q. Board of inquiry. They didn't--an ADSEP for an officer. A. No. Q. The PRINCETON did---- A. That is correct. Q. ----not ADSEP him? A. That is correct. IMC: Thank you, sir. Nothing further, Your Honor. MJ: Lieutenant Commander Messer, anything further for the witness? TC: Just briefly. [END OF PAGE]

819 REDIRECT EXAMINATION Questions by the trial counsel: Q. What action, if any, did the PRINCETON take with Lieutenant JG Wiggan? A. The Commanding Officer took the results of the investigation and conducted and counseled Lieutenant JG Wiggan on his performance and what he should do to prevent any further problems and to make sure that he didn't get in any trouble. TC: No further questions, sir. MJ: Captain Callahan? IMC: Can I have a second, Your Honor? MJ: You may. [Defense counsel and the accused conferred.] RECROSS-EXAMINATION Questions by the individual military counsel: Q. Sir, what was his final fitness report evaluation upon leaving the PRINCETON? TC: Sir, objection. Relevance. MJ: Overruled. WIT: Well, what I can tell you, I--I mean I review all fitness reports for submission for the Commanding Officer. I do not see the final product. So---- Q. Yes, sir.

A. So I can't say what his final evaluation was. I don't know the final.

820 Q. But what was the evaluation from you to the Commanding Officer? A. My evaluation of Lieutenant JG Wiggan's performance was that he was a good officer and that he performed his duties well. IMC: Thank you, sir. Nothing further, Your Honor. MJ: Lieutenant Commander Messer? TC: Nothing further, sir. IMC: If I may briefly reopen, sir? MJ: Very well. Q. Was he given an end of tour award upon leaving the ship? A. Yes, he was. Q. And what award was that? A. It was--I believe it was a Navy Commendation. IMC: Thank you, sir. Nothing further, Your Honor. MJ: Lieutenant Commander Messer? TC: Nothing further, sir. MJ: Questions from our members? Negative response from all panel members. [The witness was reminded of his previous warning, temporarily excused and withdrew from the courtroom.] MJ: Further evidence from the prosecution in rebuttal?

TC: No, sir.

821 MJ: Captain Callahan, do you anticipate evidence in surrebuttal? IMC: May I have about a 15-minute recess to discuss that with my client, Your Honor? MJ: Very well. Members, subject to my standard instructions, please cover your notes. You may depart from the courtroom in a recess. Please reassemble at 1800 hours. BAILIFF: All rise. [All persons did as directed.] MJ: Court stands in recess. The members may depart the courtroom. [The members withdrew from the courtroom.] MJ: Carry on. Court stands in recess. [The court-martial recessed at 1745 hours, 23 May 2008.] [The court-martial was called to order at 1808 hours, 23 May 2008.] MJ: Bailiff, please ask the members to rejoin the court. BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time.

All others may be seated. [All persons did as directed.]

822 MJ: Captain Callahan, does the Defense have any evidence in surrebuttal? IMC: No, Your Honor. MJ: Very well. Members, the evidence in this case has been exhausted. At this time I am going to send you into a dinner recess. During that recess period, I will discuss with counsel the instructions that I will give you later this evening. For planning purposes I will ask that your dinner recess, please return at 1930 hours. At that time I hope to have the instructions ready so that counsel can provide you closing arguments. I don't typically limit the closing arguments, although usually they're between 30 and 45 minutes per side. My instructions I anticipate will take between 25 and 35 minutes to give you, and then I plan to put you into your first closed session deliberations this evening. I don't know how long those deliberations will take and I suspect neither do you at this point since you haven't had the opportunity to begin them. There is substantial evidence, including records, I know you'll want to review thoroughly. If your need for deliberations continue past, say, 2200 hours or so, I will give you the option of pressing forward this evening and reassembling tomorrow morning. So essentially that is the game plan for tonight. Members, subject to my standard instructions, please cover your notes. You may depart on a dinner recess. Please reassemble at

1930 hours. BAILIFF: All rise.

823 [All persons did as directed.] MJ: The members may depart on a dinner recess. Counsel, please stand by. [The members withdrew from the courtroom.] [The court-martial recessed at 1810 hours, 23 May 2008.] [END OF PAGE]

824 [The Article 39(a) session was called to order at 1810 hours, 23 May 2008.] MJ: Please be seated. [All persons did as directed.] MJ: This 39(a) session is called to order. Let the record reflect the members have departed from the courtroom on a dinner recess. Counsel for both sides, please approach. [Trial counsel and defense counsel approached the bench.] MJ: I'm providing the counsel for both sides Appellate Exhibit L, a very tentative draft of my findings instructions. I did note a change in reviewing the findings worksheet that I will make after this session. I did not notice it at first, but the Government has in the charge sheet a Charge IV and a Charge V both under Article 134. They should have been properly brought under a single charge as separate specifications. Nonetheless, the charges are as they are on the charge sheet and I'll deal with them in the findings instructions. I will make it clear on the record now, if I was not clear, Charge IV and its sole Specification was dismissed pursuant to R.C.M. 917. There is no other specifications under Charge IV, therefore, we will skip Charge IV on the findings worksheet, as well as my findings instructions, and renumber the allegations of adultery as Charge V and the sole Specification thereunder.

Counsel, I know you haven't had the full benefit of reviewing Appellate Exhibit L, so I just want to at this point

825 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

826 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.

827 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.

828 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.

829 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

830 appropriate, let's discuss that in more detail, as well. Any additional comments concerning the proposed findings instructions, Appellate Exhibit L? TC: Not at this time, sir. MJ: Captain Callahan? IMC: Sir, also at this time, in regards to Page 6, I think one of the appropriate things to consider is to whether or not the marriage was prejudicial to good order and discipline, is whether or not the two of them had physically separated, as per stated in her divorce documents before the alleged affair occurred. MJ: Well, it says that one line--and I should really line these--but there is whether the accused or co-actor was legally separated. IMC: Yes, sir. But that's referring again to an actual legal separation vice an actual physical separation, because you have two things. It's the divorce attorney testified you can be legally separated, actually filed with the State of California, slam bam, you're now legally separated, which we do not have in this case. But what we do have in this case is an actual physical separation of the parties predating the alleged affair, as testified to not only by the--by Lieutenant Wiggan but also as testified to--and evidence in the divorce proceedings. And I think the fact that the two of them had already physically separated, had broke up their community and their community property for purposes of divorce proceedings is certainly relevant as to whether or not any affair that

831 occurred during that time period would be adultery under the Uniform Code of Military Justice. MJ: Well, if you have some case precedent or authority, I'd certainly be willing to listen to it. I'm not sure the general proposition that people who live apart have the right to engage in an adulterous relationship, but if there's some authority towards that end---- IMC: No, sir. But it's simply one factor to consider. It's not--and I'm not requesting the Court to instruct them that if they find that, then they cannot find it. But it is something I think that is appropriate for them to be allowed to consider in the totality of the circumstances as to whether or not it's prejudicial to good order and discipline. TC: Sir, the Government would oppose that. MJ: Very well. Well, you'll have an opportunity in this next recess to conduct any research you desire; and if you have something that you'd like to provide, I certainly will consider that, as well. Okay. Anything further before we take a recess so you can conduct your research and propose additional findings instructions? TC: Nothing from the Government, sir. IMC: No, sir. MJ: Very well. If you would take this time to conduct that research. If we could again meet on the record at 1900 hours. I think that will give you some time to do the research and propose your additional instructions, as well as hopefully to grab a little bit of

832 dinner. There being no other business, court stands in recess. Please reassemble 1900 hours. Carry on, please. [The session recessed at 1822 hours, 23 May 2008.] [The session was called to order at 1912 hours, 23 May 2008.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the dinner recess are again present before the Court at this time, except for the members who remain in the deliberation room. During the recess, counsel, I revised my earlier draft findings instructions and I have provided to you Appellate Exhibit LIII. I'll highlight the significant modifications I made during the recess based on your inputs from out last session and then I'll receive your arguments as to any additional changes or objections to the instructions I have proposed. I'll also note that I have numbered each of the lines of this particular appellate exhibit to aid our discussion. First, changes on Page 6 to reflect Charge V and its sole Specification. Moving on to Page 7, you will note in Lines 19 through 22 I have italicized two entries. One reflects the status of Lieutenant JG Wiggan and NC1--then NC1 Lewis-Wiggan as physically separated and living apart. Again these factors are factors which bear on a determination as to whether the conduct was prejudicial to good order and discipline or service discrediting, and I believe that this is a factor that should be considered in such a determination.

833 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.

834 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?

835 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----

836 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.

837 Certainly if--for instance, if the outside is looking in on that for the question as to whether or not it's service discrediting, the outside world takes a very different view on adultery if somebody comes in and breaks up an active marriage or if two people are no longer living together as husband and wife and somebody comes in and has an affair with one of those people. So it certainly is something that is proper to consider and it is not addressed by legal separation because it's the--the divorce attorney testified that is an official separate status that you get by filing paperwork with the court. MJ: Lieutenant Commander Messer? TC: Sir, just briefly. Legal separation is a more stringent standard. You have actually taken the active step of petitioning the court to be legally separated and a court has ordered that you be legally separated. And the drafters under the M.C.M., when they put that in there, obviously were considering that stronger requirement as a factor to consider under the service discrediting elements that you may consider. By allowing Defense to get in this lesser one, which is just a decision, whether or not it existed is debatable, for them to just live apart or to be physically separated and living apart, diminishes that element and it's--like I argued before, it's already covered under M.C.M.. You're just basically giving them a lesser--a lessor factor or a factor that's easier to establish or easier to achieve and it's--it was never contemplated or meant under the M.C.M.

838 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?

839 TC: No, sir. I'll rest. MJ: Very well. Government's objection is noted and overruled. With regard to the determination of the evidence, I leave that to the members. Do not believe that with regard to the list contained in the Manual for Courts-Martial, that is an exhaustive or exclusive list. It specifically includes all circumstances and factors on the issue, including but not limited to. I think that contemplates that there may be other factors to be considered. Given the state of evidence in this case, I have concluded that this is a factor that the members may consider in making a determination as to whether the conduct was prejudicial to good order and discipline or service discrediting. Further objections, concerns? TC: Sir, I'd also object to the italicized portion underneath it in that you've already covered that under the defense of mistake of fact. I don't see how it can be both a defense and a factor to consider as to whether it's service discrediting or not. It's either one or the other. MJ: Captain Callahan? IMC: Sir, I think it can go to both and should be left as the military judge currently has it. MJ: Well, I suppose is the concept adequately represented in the defense mistake of fact, and I suppose the other question is to turn it around. Could the members reject that the accused--or at least that the mistake does not apply because all of its criteria was not met, but still find that under the circumstances that the accused

840 believed Lieutenant JG Wiggans was divorced or legally separated as a factor to consider. Captain Callahan? IMC: I have nothing to add, sir. Just I think it applies to both and could potentially maybe, in the member's mind, apply to one but not the other, so it should be left in both. MJ: Lieutenant Commander Messer? TC: Nothing further, sir. I made my argument. MJ: I still believe it's an appropriate factor for the community as well as service members to assess in determining if the conduct brought discredit on the service or was prejudicial to good order and discipline. Certainly the accused's own state of mind concerning whether the co-actor was divorced or legally separated would be such a factor, so I'm going to leave that in there. Any further discussion as to the defense of mistake of fact or the tailoring as I have drafted the instruction on Page 8? Lieutenant Commander Messer? TC: Stand by, sir. Sir, I'm satisfied with that. MJ: Captain Callahan, also satisfied with the drafting of the mistake of fact instruction? IMC: Yes, Your Honor. MJ: Very well. Let's skip forward to Page 10, unless counsel wish to discuss the instructions preceding that. Prior inconsistent statements, were there any other prior inconsistent statements concerning the witnesses aside from Lieutenant JG Wiggan? Lieutenant

841 Commander Messer? TC: The Government's aware of none, sir. MJ: Captain Callahan? IMC: May I have a moment, sir? MJ: You may. There may be some contradiction, but it may not rise to a prior inconsistent statement. IMC: Yes, sir. I believe contradictions, but no other prior inconsistent statements. MJ: Very well. Character for truthfulness and untruthfulness, character for--bad character for truthfulness as to NC1 and Lieutenant JG Wiggan. Anyone else? TC: Sir, I'd ask that you change NC1 to NCC. MJ: Correct, as she's testified here. Thank you. Okay. Aside from those two witnesses, any other witnesses? IMC: Sir, I'm sorry. Did anybody testify to Wiggan's bad character for truthfulness--to Lieutenant JG Wiggan's? I don't recall that. I might have missed it, but I don't recall anybody addressing his character for untruthfulness, just that Captain Noel addressing his character for truthfulness. And certainly the Government put him through a vigorous cross-examination, but I don't recall any other witness coming in and testifying, in their opinion, his character is untruthful. MJ: Lieutenant Commander Messer, what testimony would support such an instruction concerning Wiggan?

842 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

843 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?

844 TC: No, sir. The only variance would be the date of the false official statement which is the 23rd vice the 21st. You know, the Government's obviously comfortable that it's "on or about," but I think the--there could be some confusion with the members. MJ: Well, I believe the element is going to be on or about. It could be fairly encompassed if we do add a variance; then I'd have to add an instruction and also change the findings worksheet. I'm not sure that would be more confusing or more helpful to the members. So your call, counsel, if you want to---- TC: Sir, we'll leave it as is. I'll address it on close. MJ: Very well. Aside from the requested instructions and all the matters we've discussed at this point, do counsel have any further requests for instructions or additional tailoring that we have not already discussed? IMC: Defense does not, Your Honor. MJ: Lieutenant Commander Messer? TC: Sir, I didn't see here. Did you include the accomplice testimony section? MJ: I did. It's under credibility of witnesses on Page 10, Lines 17 through 27. TC: Yes, sir. MJ: Actually through 32. So aside from the one matter concerning prior inconsistent statements, are there any other requests for instructions from the Government or objections not already noted to the proposed

845 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.

846 Does either side anticipate use of demonstrative aids for closing argument? IMC: No, Your Honor. TC: No, sir. MJ: Very well. Has each side had an opportunity to review the findings worksheet, Appellate Exhibit LII? And it was redrafted since the first draft came out to reflect minor edits. TC: Yes, sir. The only question I had was whether you want to leave Charge V, the original Charge V as Charge V or change it to Charge IV. MJ: Well, I think we'll just leave it as it is. The members' charge sheets have it listed that way and so long as it's clear. I did indicate to them to cross off Charge IV and its Specification when that was dismissed under R.C.M. 917. So I think just it will track better if we leave it the way it is. IMC: Sir, I believe it has four specifications listed under Charge III. MJ: That would be a mistake. I thought we made that change. IMC: At least the copy--I'm not sure this is the most recent copy, but the copy I have---- MJ: Yeah, I thought we made that change, but perhaps not. TC: Not according to the copy I have. MJ: Yeah, there was a----

IMC: Okay. I believe I have an older copy, sir.

847 MJ: Let me just double check to make sure. Three specifications under Charge III and then the charge. So I think we've corrected that, but thank you for bringing that to our attention. Okay. With that modification, are counsel satisfied with the findings worksheet reflected in Appellate Exhibit LII? IMC: Yes, Your Honor. TC: Yes, sir. MJ: Other matters we need to address on the record before counsel prepare and set up for closing argument? TC: You were going to give me a moment to go through my notes as to the truthfulness, sir. That's it. MJ: Very well. If you'd like to argue that matter, I will allow you some time. TC: I'd like just five minutes to look through my notes, sir. MJ: All right. Why don't we just reassemble at quarter to the hour. Court stands in recess. Carry on, please. [The session recessed at 1935 hours, 23 May 2008.] [The session was called to order at 1950 hours, 23 May 2008.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time; the members remain in the deliberation room. During the recess, I provided to counsel Appellate Exhibit

LIV which is the most recent version of the findings instructions to incorporate the discussions we had earlier. Counsel, these are the

848 instructions I intend to give. I did want to revisit with you briefly, Lieutenant Commander Messer, the issue of character for truthfulness concerning Lieutenant JG Wiggan. Were you able to find some testimony that would support such a character? TC: Yes, sir, thank you. No, not direct testimony elicited from the witness. We don't seek that to be added. MJ: Very well. So then on Page 11, Line 2, I will delete Lieutenant JG Wiggan. IMC: Sir, also I believe under that, evidence was admitted as to Lieutenant JG Wiggan's character for truthfulness, but I don't recall evidence for the character for truthfulness being testified for Chief Wiggan. MJ: Lieutenant Commander Messer? TC: I don't agree with that. I don't believe that he inquired into Lieutenant JG Wiggan's character for truthfulness. IMC: I did with Captain Noel, sir. It's one of the things he testified to. Specifically, sir, I believe when I first started going into it, Commander Messer objected to it. You allowed it. He said, in his character--in his opinion, he had great, outstanding, something along those lines, character for truthfulness and I recall he finished it with something along the lines of and that's why he was my number one Chief.

MJ: Lieutenant Commander Messer?

849 TC: Well, sir, I don't believe that was adequate enough to establish an instruction on truthfulness. MJ: He offered an opinion concerning then Chief Wiggan as honest and truthful and very honest, so I concur with defense counsel. "Evidence of good character for truthfulness concerning Lieutenant JG Wiggan was also introduced." And I'll change the caption, "Character for Truthfulness and Untruthfulness." All right. For planning purposes, Line 1 on Page 11 will read "Character for Truthfulness and Untruthfulness." Line 2 will be "Evidence has been received as to NCC Lewis-Wiggan's bad character for truthfulness." On Line 4: "Evidence of good character for truthfulness concerning Lieutenant JG Wiggan was also introduced." Line 5: "You may consider this evidence in determining the believability of NCC Lewis-Wiggan and Lieutenant JG Wiggan." Counsel clear as to the instructions the Court will give on this issue? IMC: Yes, Your Honor. TC: Yes, sir. MJ: Very well. Aside from our earlier discussions, does either side desire additional instructions on findings or specific tailoring? IMC: No, Your Honor. TC: No, sir. MJ: And aside from the objections already noted, are there any other additional objections counsel for either side would like to lodge at this time concerning the anticipated findings instructions?

850 IMC: Not from Defense, Your Honor. TC: Nothing from the Government, sir. MJ: Are counsel ready to present closing argument to the members? IMC: Ready, Your Honor. TC: Sir, I'd ask for about five minutes in place just to finish up my argument. MJ: Very well. In light of the Court's modifications of the post findings instructions, I'll give you till 2000 hours. Court stands in recess. Please remain seated. Carry on. [The Article 39(a) session recessed at 1955 hours, 23 May 2008.] [END OF PAGE]

851 [The court-martial was called to order at 2012 hours, 23 May 2008.] MJ: Bailiff, please ask the members to join our court. TC: Sir, should I ask the court reporter. Do they want us mic'd up for this if we're in the well? MJ: Will you be able to hear them if they're not on walking mics? REPORTER: It would possibly be better if they could wear them. MJ: It won't hurt, especially if you want some latitude in moving about the well. BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the dinner recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Let the record reflect that I provided to counsel--both counsel Appellate Exhibit LV which are the instructions that I intend to give on the findings of this case. Members, my apologies for the delay this evening. The findings instructions, which you will receive later on, encompass about 15 pages single typed space, so it took some time to get through

852 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

853 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.

854 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

855 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

856 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

857 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.

858 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

859 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

860 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

861 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

862 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

863 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

864 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

865 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

866 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

867 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

868 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.

869 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

870 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

871 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

872 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

873 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

874 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

875 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.

876 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.

877 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.

878 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.

879 MJ: Members, if you would cover your notes. Subject to my standard instructions not to discuss this case and so on and so forth, if you would please depart the courtroom and reassemble at, oh, 2100 hours. Court stands in recess. The members may depart. BAILIFF: All rise. [All persons did as directed, and the members withdrew from the courtroom.] MJ: Court stands in recess. Carry on, please. [The court-martial recessed at 2055 hours, 23 May 2008.] [The court-martial was called to order at 2106 hours, 23 May 2008.] MJ: Bailiff, please ask the members to join our court. BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: The court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Captain Callahan, your argument on the merits of this case, please.

880 IMC: Thank you, Your Honor. A Navy Commendation Medal and a general court-martial. Ladies and gentlemen, I could almost finish my closing just right there and stop, but the question becomes why are these two cases handled so differently. Why is one officer given a Navy Commendation Medal and why is the other officer facing a general court-martial? One officer gets a citation and an award in recognition of his work and performance that will follow him for the rest of his life, and the other officer they try and tack a criminal conviction on at a federal court that will follow and haunt her for the rest of her life. Ladies and gentlemen, the answer as to why is the difference between Lieutenant JG Wiggan's command and Lieutenant Commander Penland's command, Naval Coastal Warfare Group ONE, and the difference is the supply issues, the IG complaints that she filed and the equal opportunity complaints that she made. Ladies and gentlemen, at the end of the day it doesn't even really matter whether or not those complaints are founded. Personally I don't know what I'd be more upset at, if somebody made baseless accusations accusing me or if somebody was accusing me and discovered me doing multimillion dollar contracting illegalities. Either one would make me pretty darned upset. And, ladies and gentlemen, that's what we have in this case. Her command may have come in here and denied it, but just the very fact they denied that that in any way affected how they feel of her is dishonest. There is no way somebody could raise those type

881 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

882 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

883 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

884 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

885 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

886 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.

887 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

888 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

889 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

890 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

891 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?

892 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

893 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

894 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

895 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

896 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.

897 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

898 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.

899 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

900 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.

901 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

902 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,

903 as members, you, as Naval officers, have a duty here today and that is to uphold that oath, uphold the specialness, the value of being a Naval officer. I know you will do that. Please review the evidence carefully and render the only appropriate verdict in this case which is guilty of all charges. Thank you. MJ: Thank you, counsel, for your arguments and presentations on behalf of the court. Members of the court, it is my intention, unless you have a strong desire to press on this evening, to send you home and have you return tomorrow to begin your deliberations. For planning purposes, I will next provide to you my instructions on the law that you must apply to the evidence of this case in reaching your determinations. Typically my instructions will take between 25 and 35 minutes to provide to you, after which you will then be placed in your closed session deliberations for ever how much time that they take. With this information in mind, Captain Gentile, would you like to consult your members to determine if they'd like to press ahead this evening or return in the morning to continue these proceedings? PRES: I'd like to take five minutes to consult with them. MJ: Very well. Members, subject to my standard instructions, please cover your notes and you may depart on a brief recess. BAILIFF: All rise.

904 [All persons did as directed.] MJ: Court stands in recess. The members may depart. [The members withdrew from the courtroom.] [The court-martial recessed at 2146 hours, 23 May 2008.] [END OF PAGE]

905 [The Article 39(a) session was called to order at 2151 hours, 23 May 2008.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, except for the members who remain in the deliberation room. During the recess, the senior member provided to the Court a question which has been marked Appellate Exhibit LVI. The question is a two-part question essentially asking if they can receive the instructions tonight and then come back in the morning to deliberate. My answer is that that is an option and I'm willing to do that. The second part of the question is time options in the morning. I gather--I'm not sure if they want to start at 06 or 1000 hours or somewhere in between or later than that. So my plan would be to invite the members to return at 0830, 900 or so, given the late hour tonight, and not much earlier than that, unless they really have a desire to do so. Counsel concur with the suggested course of action as I've outlined here? TC: Yes, sir. I'm flexible anytime, as long as the members-- whatever time is comfortable with the members is fine with me. MJ: Very well. Captain Callahan?

IMC: The same thing, sir, although if it's, you know, a question between 8:00 or 9:00, I would certainly request 9:00. I live out in

906 Lakeside; I've got a ways to go, sir. But again, if the members want to come in at 06 in the morning to get it done so they can, you know, go on with their holiday or whatever, I can get up early to go. MJ: I don't suspect that's going to be their request, but we'll do what we can to accommodate their schedules. Very well. Counsel prepared to go for about another 30 minutes then so I can provide them the instructions on findings? TC: Yes, sir. IMC: Yes, Your Honor. MJ: Very well. Commander Penland, are you up to another 30 minutes this evening? ACC: Yes, sir. MJ: Very good. Then that's what we'll do. Any other matters we need to address outside the members' presence on the record at this time? TC: No, sir. IMC: No, Your Honor. MJ: Very well. This 39(a) session is concluded. Bailiff, if you would please ask the members to rejoin the court. BAILIFF: Yes, sir. [The Article 39(a) session concluded at 2153 hours, 23 May 2008.] [END OF PAGE]

907 [The court-martial was called to order at 2154 hours, 23 May 2008.] BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Members, in response to the questions outlined in Appellate Exhibit LVI, with regard to the first question, I am certainly willing to give you my instructions this evening and then you can return in the morning to begin your deliberations. That was an option; I should have offered that to you. And counsel have indicated to me that they are prepared to continue, as well, this evening with the instructions. With regard to the second part of the question, what are the time options in the morning, I gather we could begin at 0600, although, given the late hour tonight, that probably would not be very prudent. I was going to suggest 0830 or 0900 reassembly, but I'll leave that to a consensus among the members. Since I haven't finished giving you my instructions, you won't know exactly what time you're going to leave tonight and, therefore, what time you'll have to come back in the morning.

908 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.

909 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.

910 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.

911 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

912 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

913 (3) That under the circumstances, the accused's conduct personally and seriously compromised her standing as a Naval officer and was unbecoming an officer and a gentlewoman. Specification 3: In Specification 3 of Charge III, the accused is charged with the offense of conduct unbecoming an officer and gentlewoman. In order to find the accused guilty of this offense, you must be convinced by legal and competent evidence beyond reasonable doubt: (1) That on or about 28 September 2006, at or near San Diego, California, the accused wrongfully distributed nude photographs of Lieutenant JG Mark Wiggan, U.S. Navy, to his wife, Navy Counselor First Class Kimberly Lewis-Wiggan, U.S. Navy; and (2) That under the circumstances, the accused's conduct personally and seriously compromised her standing as a Naval officer and was unbecoming an officer and a gentlewoman. Conduct unbecoming an officer and a gentlewoman means behavior in an official capacity which, in dishonoring or disgracing the individual as a commissioned officer, seriously detracts from her character as a gentlewoman or behavior in an unofficial or private capacity which, in dishonoring or disgracing the individual personally, seriously detracts from her standing as a commissioned officer. Unbecoming conduct means misbehavior more serious than slight and of a material and pronounced character. It means conduct morally unfitting and unworthy rather than merely inappropriate or unsuitable misbehavior which is more than opposed to good taste or

914 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

915 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

916 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;

917 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

918 facts. Negligence is the absence of due care. Due care is what a reasonably careful person would do under the same or similar circumstances. You should consider the accused's age, education, experience, along with all the other evidence on this issue, including, but not limited to, the testimony of NC1 Lewis-Wiggan and Lieutenant JG Wiggan. The burden is on the prosecution to establish the accused's guilt. If you are convinced beyond a reasonable doubt that at the time of the charged offense the accused was not under the mistaken belief that Lieutenant JG Wiggan was divorced from NC1 Lewis-Wiggan, then the defense of mistake does not exist. Even if you conclude that the accused was under the mistaken belief that Lieutenant JG Wiggan was divorced from NC1 Lewis-Wiggan, if you are convinced beyond a reasonable doubt at the time of the charged offense of adultery the accused's mistake was unreasonable, the defense of mistake does not exist. You are further advised: First, that the accused, Lieutenant Commander Penland, is presumed to be innocent until her guilt is established by legal and competent evidence beyond a reasonable doubt; and Second, if there is a reasonable doubt as to the guilt of this accused, that doubt must be resolved in favor of the accused, and she must be acquitted.

919 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.

920 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

921 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

922 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.

923 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:

924 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.

925 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

926 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.

927 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

928 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;

929 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

930 instructions not already on record? TC: No, sir. IMC: No, Your Honor. MJ: Members of the court, I will further instruct you that should it become necessary for you to take a recess or to leave the deliberation room for any reason during your deliberations, for example, to get a drink of water, to call home or even use the head even though there's one in your deliberations room, we must return to an open session of court, recess, reassemble and again formally close for your deliberations. This is a vital legal requirement designed to ensure that all members are present at all times for those deliberations. Given our earlier discussions, Captain Gentile, do the members desire to recess tonight, to return tomorrow at 0800 hours? PRES: Yes. MJ: Very well, sir. We will do that. Members--Commander Grundy? MEMBER [CDR GRUNDY]: Can I ask a question? Do I write it down? MJ: I'd prefer you write it down, sir, if you would please. [CDR Grundy did as directed.] MJ: Bailiff, if you would please retrieve the question from Commander Grundy. Have our court reporter mark it as the next appellate exhibit in order and then provide it to the counsel for their review.

931 [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

932 sure you will be able to do so. Also, please do not consult any sources, written or otherwise, related to this case, any other news media or articles that may have appeared; those would not be proper for you to review either at this time. If should--if anyone should attempt to discuss this case with you, including any other member, please stop that individual and inform me at the next session of court. Subject to these standard instructions, the members may depart in an overnight recess. Please reassemble here at 0800 hours. BAILIFF: All rise. [All persons did as directed.] MJ: Thank you, members. Good evening. Safe travels home. Court stands in recess. [The members withdrew from the courtroom.] MJ: Good evening. Safe travels home. [The court-martial recessed at 2231 hours, 23 May 2008.] [END OF PAGE]

933 [The court-martial was called to order at 0805 hours, 24 May 2008.] MJ: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Good morning, members. Please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the overnight recess are again present before the Court this morning, to include all of our members. All please be seated. [All persons did as directed.] MJ: Bailiff, if you would please approach our court reporter and retrieve the prosecution exhibits that have been properly admitted. Provide them to our senior member, Captain Gentile. [The bailiff handed the prosecution exhibits to the president.] MJ: Captain, you should have in the folder provided to you Prosecution Exhibits 1 through 25, except for Number 4. If you would please verify, sir, that all those exhibits are present, again 1 through 25, except for Number 4. PRES: [Verifying receipt of applicable exhibits.] Yes, sir. MJ: Very good, sir. Members, again these are the original case exhibits. Please do not mark on them in any way. Of course, the one exception is the findings worksheet I gave to you last night. I remind you that if it becomes necessary for any member to

934 leave the deliberation room or for you to take a recess for any purpose, we must come back to court, open, reassess--recess, reassemble and again close for your deliberations. Again, this is a vital legal requirement. Captain Gentile, are the members prepared to deliberate on the findings of this case? PRES: Yes, Your Honor. MJ: Very well. Then, members, you may now withdraw to the deliberation room. This court is closed for your deliberations. BAILIFF: All rise. [All persons did as directed, and the members withdrew from the courtroom.] MJ: Court is closed. [The court-martial closed at 0807 hours, 24 May 2008.] [The court-martial opened at 0922 hours, 24 May 2008.] MJ: Please ask the members to rejoin the court. BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: The court is called back to order. Let the record reflect that all parties present prior to the members' closure to deliberate are again present before the Court at this time.

All others, please be seated. [All persons did as directed.]

935 MJ: Captain Gentile, I believe the members have a question, sir? PRES: Yes, we do. MJ: If we could have that marked by our court reporter, please. [The members' question was marked as AE LVIII and provided to counsel for both sides for their inspection.] MJ: Thank you. And let the record reflect the counsel are reviewing the members' question. [The members' question was handed to the military judge.] MJ: Thank you. BAILIFF: Yes, sir. MJ: [Reviewing AE LVIII.] Members, although it would seem to be a simple answer to your question, I need to do a little bit of research to make sure it's the right answer. This probably would be a good time for you to take a recess and I'll ask you to return at quarter to the hour to the courtroom. Subject to my standard instructions, please do not discuss the case further with yourselves or anyone obviously. The members may depart on recess. Please reassemble at quarter to the hour. BAILIFF: All rise. [All persons did as directed.] MJ: Court stands in recess. The members may depart. [The members withdrew from the courtroom.]

[The court-martial recessed at 0925 hours, 24 May 2008.]

936 [The Article 39(a) session was called to order at 0925 hours, 24 May 2008.] MJ: Please be seated. [All persons did as directed.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, except for the members who have departed on recess. The question from Appellate Exhibit LVIII is: What is the legal definition of an official statement? What constitutes an official statement? Counsel, I looked in the Judge's Bench Book for that definition; there isn't one. There wasn't one in the electronic version either. There is a note about an official nature of a document. The note to the Bench Book instruction indicates that it's generally a matter of law a judge to decide, but that it also might be an issue of fact if the issue is controverted and can be subject to multiple interpretation. So I think the most prudent course would be to take some time now to conduct a little bit of additional research, if you could all do that, and then reassemble here at quarter to the hour and hopefully we'll have a definition that we can provide to the members. Other matters we need to address on the record outside their presence? TC: No, sir.

937 IMC: No, Your Honor. MJ: Very well. Court stands in recess. Please reassemble quarter to the hour. Carry on. [The session recessed at 0926 hours, 24 May 2008.] [The session was called to order at 1005 hours, 24 May 2008.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the recess are again present before the Court as this time, except for the members who remain in the deliberation room. Counsel, during the recess, I conducted some independent legal research as to the defined or acceptable defined term "official" under Article 107. With regard to responding to the members' question, I have essentially a three-part response, and then I'll solicit your input concerning that proposed response as well as any alternative responses you'd like to suggest. First of all, I had started with the Manual for Courts- Martial, the explanation Article 107; this is the 2008 version of the Manual for Courts-Martial. In the explanation to the punitive article, the manual defines "official statements" to include all statements made in the line of duty. I verified that that actually came from a Court of Military Appeals case, Caballero, C-A-B-A-L-L-E-R-O, 37 M.J. 422 from 1993. So that would be the first part of the explanation to the members. I also found case authority defining the term "official" in a Navy-Marine Corps Court of Criminal's case from 2001. The term

938 "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.

939 TC: Yeah. No. And that was subject to a pretrial motion 39(a) session, and we have litigated that issue. I think that if you read that rule, they could say, "Well, he's not an investigator, so, therefore, it wasn't"--I don't know. I just think it's misleading. I don't think it's appropriate. MJ: Doesn't track with the facts of the case? TC: That's correct, sir. MJ: Okay. Captain Callahan, your response to the proposed answer? IMC: Sir, I think it might be simpler and easier just to read the straight language out of the text for the Manual for Court- Martial, try and keep it as short and small as possible for the members. If you are going to read that second one, as well, I think, as part of further expounding upon it, then the third one should be read, as well. But the Defense's first position would be just to read straight from the manual, sir. MJ: Lieutenant Commander Messer? TC: Nothing further, sir. MJ: Do you agree or disagree with defense counsel's suggested course? TC: I disagree, sir. I mean, obviously I think the first two are obviously very pertinent. You--if you define official statement, they'd also probably want a definition for "official," sir.

MJ: Well, that was specifically part of the question, so that's why I tried to find an official----

940 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.

941 Captain Callahan, your request to go it simply with part one of my explanation, that is also overruled. I think we owe the members a response to the question that requested a definition of official, so, therefore, I'm going to give part two as I proposed; and, as you suggested, I will also give part three. IMC: Understood, Your Honor. MJ: Lieutenant Commander Messer? TC: Nothing further, sir. Understood. MJ: Very well. Any other matters we need to discuss before we have the members return so I can respond to their questions? IMC: Not from Defense, Your Honor. TC: Nothing from the Government, sir. MJ: Very well. Bailiff, if you would ask the members to join the court. This 39(a) session is concluded. [The Article 39(a) session concluded at 1013 hours, 24 May 2008.] [END OF PAGE]

942 [The court-martial was called to order at 1013 hours, 24 May 2008.] BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: The court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Members, in response to your question reflected in Appellate Exhibit LVIII, I essentially have a three-part response. First, official statements include all statements made in the line of duty. Second, the term "official" for purposes of making a false official statement essentially means any matter within the jurisdiction of any federal department. Third, a statement to an investigator could be prosecuted as a false official statement. That is my response to your question, members. If there are no other questions, you may return to your deliberations. Could you get that in writing? In about 20 more minutes or 15 more minutes

I'll be glad to put it in writing. I'll be also glad to repeat it if you want to----

943 MEMBER: Could you repeat it one more time? MJ: I will. MEMBER: All right. MJ: First, official statements include all statements made in the line of duty. Second, the term "official" for purposes of making a false official statement essentially means any matter within the jurisdiction of any federal department. Third, a statement to an investigator could be prosecuted as a false official statement. Captain, are the members ready to retire for continued deliberations? PRES: Yes, Your Honor. MJ: Very well. Subject to my instructions, you may do so. The court is now closed once again for your deliberations. The members may depart. BAILIFF: All rise. [All persons did as directed, and the members withdrew from the courtroom.] MJ: Court is closed. Carry on, please. [The court-martial closed at 1014 hours, 24 May 2008.] [The court-martial opened at 1211 hours, 24 May 2008.] MJ: Counsel, I am told the members have reached findings. Are we ready for them to return? TC: Yes, sir.

944 IMC: Yes, Your Honor. MJ: Bailiff, please ask the members to join the court. BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to closure for deliberations are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Captain Gentile, have the members reached findings in this case? PRES: Yes, we have, Your Honor. MJ: And are your findings accurately reflected on the findings worksheet? PRES: Yes, they are, Your Honor. MJ: Have you signed the worksheet at the end, sir? PRES: Yes, I have. MJ: If you would please fold it in half so that it cannot be read. [The president did as directed.]

MJ: And, Bailiff, if you retrieve the worksheet to me so I can determine if it is in proper format.

945 [The bailiff handed LII to the military judge.] MJ: Thank you. [Reviewing AE LII.] The findings worksheet appears to be in proper format. If you would return it to our senior member. [The bailiff handed AE LII to the president.] MJ: Accused and Counsel, please rise. [The accused and her counsel did as directed.] MJ: Captain Gentile, if you would please announce the findings of your court. PRES: Do you want me to stand up? MJ: As you desire, sir. PRES: Lieutenant Commander Syneeda L. Penland, United States Navy, this court-martial finds you:

Of Charge I and its sole Specification: Guilty.

Of Charge II and its sole Specification: Guilty.

Of Charge III, Specification 1: Guilty. Of Charge III, Specification 2: Not Guilty. Of Charge III, Specification 3: Guilty. Of Charge III: Guilty.

Of Charge V and its sole Specification: Guilty.

MJ: Please be seated. [The accused and her counsel did as directed.] MJ: Members, given your findings, we will have to have a sentencing hearing in the case. It's my intention to send you on a lunch recess so counsel can put together their final sentencing evidence, and also I'll need to discuss with them a number of matters

946 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.

947 [Questions from the members were marked as AE LIX and LX, inspected by counsel for both sides, and handed to the military judge.] MJ: And let the record reflect counsel have reviewed questions from the members. [Reviewing AE LIX and X.] Members, I'm going to defer responding to your questions at this time since I'd like to discuss them with counsel and, based on the nature of the questions, I think it would probably be appropriate to defer that anyways. So rather than delay you from your lunch recess, subject to my standard instructions, if you would please cover your notes, leave them behind. I'll ask our bailiff to retrieve the exhibits from our senior member along with the sentencing--I'm sorry--the findings worksheet. And we'll have those returned to the court reporter for safeguarding. [The bailiff did as directed.] MJ: Members, subject to those standard instructions, you may depart on lunch recess. Please reassemble at--well, let's make it 1345 hours. Members may depart on a lunch recess. BAILIFF: All rise. [All persons did as directed, and the members withdrew from the courtroom.] [The court-martial recessed at 1218 hours, 24 May 2008.] [END OF PAGE]

948 [The Article 39(a) session was called to order at 1218 hours, 24 May 2008.] MJ: Please be seated. [All persons did as directed.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, except the members who are on lunch recess. Counsel, with regard to the questions that were asked, I'll just defer those. We can pick them up at a later time to answer those questions. I want to give you also a brief lunch recess and also some time now in a moment to prepare for the sentencing session. If you would during the recess have any exhibits pre-marked with the court reporter and have your witnesses standing by. Lieutenant Commander Messer, does the Government anticipate calling witnesses on sentencing? TC: Yes, sir, just one, Chief Lewis-Wiggan. MJ: Very well. Estimated time for that testimony? TC: Ten minutes. MJ: Captain Callahan, does the Defense anticipate calling witnesses on sentencing? IMC: Not at this time, sir.

MJ: Very well. You'll certainly have time during the recess to make that assessment once again.

949 Lieutenant Commander Penland, based upon the findings of the court, we will be conducting a sentencing hearing today. I want to advise you that you have the right at this sentencing hearing to present matters in extenuation and mitigation, that is, information about the offenses and or about yourself that you want the court to consider in deciding an appropriate sentence in your case. Included in your rights to present these matters are the rights you have to testify under oath, to make an unsworn statement, or to remain silent. If you testify under oath, you may be cross-examined by the prosecutor and questioned by the members and the Court. If you elect to make an unsworn statement, you may not be cross-examined by the prosecutor or questioned by the court. However, the prosecution can rebut any statements of fact you make in an unsworn statement. You may make an unsworn statement orally or in writing, personally or through your defense counsel, or you could use any combination of those ways you so desire. If you decide to exercise your right to remain silent, that will not be held against you in any manner. Do you understand your rights to present matters in extenuation and mitigation at the sentencing hearing that will follow the lunch recess? ACC: Yes, sir. MJ: Very well. Counsel, are there other matters we need to address on the record at this time? TC: None from the Government, sir.

950 IMC: No, Your Honor. MJ: Very well. If we could reassemble at 1315 hours, I'd like to discuss and receive any exhibits we can for sentencing and also have an initial discussion concerning sentencing instructions. Other matters we need to discuss on the record given that further information? TC: No, sir. IMC: No, Your Honor. MJ: Very well. This court stands in lunch recess. Carry on. [The session recessed at 1221 hours, 24 May 2008.] [The session was called to order at 1352 hours, 24 May 2008.] MJ: This 39(a) hearing is called to order. Let the record reflect that all parties present prior to the lunch recess are again present before the Court at this time, except for the members who remain in the deliberation room. During the recess, the Court prepared and has marked as Appellate Exhibit LXI the sentencing worksheet. There were a number of changes made to it, so, therefore, we will not go into an in-depth discussion at this time, but once the changes have been made we'll substitute the corrected version for Appellate Exhibit LXI. I also provided to counsel a very rough draft of the sentencing instructions. That has been marked Appellate Exhibit LXII. In a moment we'll go over that to receive counsel inputs concerning tailoring of the instructions on sentencing.

951 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

952 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.

953 MJ: Lieutenant Commander Messer, the Government's position concerning the grounds for requested mistrial? TC: Sir, the Government opposes the motion and believes none of the reasons stated on the record by the defense counsel rise to the level warranted under R.C.M. 915 that would cause the military judge to have to grant such a motion. MJ: Do you desire to argue with any specificity the grounds that have been brought before the Court? TC: No, sir. I'll leave that for appellate counsel. MJ: Very well. The motion for mistrial is noted for the record, preserved for appeal, and is denied. The Court finds the record speaks for itself as to the particular bases that have been offered as grounds for mistrial. The court finds that there is no necessity to grant a mistrial to prevent injustice in this case, that, therefore, the motion is denied, subject to further explanation and expansion prior to authentication of the transcript. Court's ruling clear to both parties? TC: Yes, sir. IMC: Yes, Your Honor. MJ: Very well. If we could then begin our pre-sentencing session on Page 85 of the Navy-Marine Corps Trial Guide. Are there any corrections or additions to the personal data listed on the charge sheet that have not already been made? TC: No, sir. IMC: Not that the Defense is aware of, Your Honor.

954 MJ: Has there been any pretrial restraint or confinement? TC: No, sir. IMC: There has not, Your Honor. MJ: Captain Callahan, in your opinion, has your client been subjected to unlawful pretrial punishment? IMC: No, Your Honor. MJ: Very well. Have the parties been able to come to agreement concerning the personal data sheet? TC: At this time, sir, copies have been provided to Defense. I don't know what the status is as far as getting it updated. MJ: Captain Callahan? IMC: There are some minor changes that are being made to it, sir. We'll provide it to the trial counsel at the next break---- MJ: Very well. IMC: ----for his input. MJ: Lieutenant Commander Messer, does the prosecution have any evidence on sentencing to be offered and admitted at this time? TC: No, sir. MJ: Captain Callahan, does the Defense have any evidence it would like to offer on sentencing to be offered and admitted at this time? IMC: Not at this time, Your Honor. MJ: Very well. I believe, based on the findings of the court, the maximum authorized sentence based upon guilty findings would be 10 years and a dismissal. Do counsel agree?

955 TC: Yes, sir. IMC: Yes, Your Honor. MJ: Captain Callahan, do you anticipate your client will be giving a sworn, unsworn statement, or will she remain silent? IMC: May I have a moment to confer with my client? MJ: Certainly. And I'm not asking you to commit to any particular course. It's just for drafting of the instructions. IMC: Yes, sir. [Conferring with accused.] She hasn't made her mind up yet, sir, but I would not anticipate a sworn statement---- MJ: Very well. IMC: ----in any case. MJ: I'll leave that open then. I've provided to you, as I said, a very tentative draft of the sentencing instructions as Appellate Exhibit LXII. I've already noted a number of typographical errors that will be corrected when the instructions are provided to the members, but I want to get to you the substance so you can prepare your case and argue your positions accordingly. I will note that I think I made one modification to reflect the maximum authorized punishment of 10 years' confinement. I'll make that change also on Page 1, Line 16 of Appellate Exhibit LXII. I need to get some input as to the maximum forfeitures of pay and allowances on Line 30 of Page 2. You know, typically most cases we just settle on the basic pay per month, but in this instance, since this is a general court-martial, the court is authorized to

956 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

957 Callahan, your choice. IMC: I don't think that's an issue---- MJ: Not an appropriate factor? IMC: ----in this case, sir. MJ: Government Counsel, agree? TC: We have no objection on it, sir. MJ: Very well. The accused's good military character, if there are defense exhibits to be offered, I'll incorporate those there. If not, I will just reference the testimony we had as to good military character. Defense Counsel, do you anticipate additional witnesses to testify on such a matter? IMC: No additional witnesses, sir. MJ: Very well. IMC: We will probably call Commander Milner to testify, sir, but he obviously is not additional. MJ: Okay. He'll be incorporated there. And I will also instruct the members down farther that they--well, actually in Lines 2 through 5 on that page it talks about evidence before or after the findings. So they can consider the testimony before the findings as well as what occurs afterwards. IMC: Thank you, Your Honor. MJ: Very well. I know that Lieutenant Commander Penland has prior enlisted service. Did she, in fact, receive a Good Conduct Medal for her enlisted service?

958 IMC: Yes, sir, two of them. MJ: Two. Very well. So it will be for good conduct as reflected by her receipt of two Good Conduct Medals. Was she honorably discharged as an enlisted service member, as well, and will there be evidence to that effect? IMC: She was priorly--yes, sir. MJ: She was discharged honorably? IMC: Yes, sir. She has prior honorable discharges. MJ: How many? Just one? IMC: Just one, sir. MJ: Prior honorable discharge. Okay. Does she have any combat record? IMC: No combat record, Your Honor. MJ: On Line 13 I've incorporated I believe--I realize that she has a bachelor and a master's degree. I don't know if there will be any evidence offered to that effect. If there is, I would instruct, if the parties desire. Captain Callahan? IMC: May I have a moment, sir? MJ: Certainly. And I think that goes to value to the service based on training and education. IMC: Yes, sir, we would request that. MJ: Very well. If you develop evidence along those lines, then I will so instruct.

The same line of query with regard to line item 14, in terms of graduating from the following schools, typically those are

959 service schools, again to show the Service's investment and training in the individual. Do you anticipate offering evidence of that matter? IMC: Yes, Your Honor. MJ: Do you want me to instruct as to specific schools or just service schools? IMC: I think just service schools in general is sufficient, Your Honor. MJ: Very well. Do you anticipate offering enlisted evaluations and fitness reports? IMC: No, sir. MJ: Do you anticipate eliciting any testimony concerning performance in those--and along those lines? IMC: From Commander Milner, sir, and against the testimony that was admitted previously. MJ: I'll modify Line 15 to reflect something to the effect they should consider the accused's performance as evidenced by the testimony of Captain Noel, Captain Johnson and Commander Milner. IMC: Thank you, Your Honor. MJ: Line 17, normally we reference the personal data sheet that contains the medals and awards. Once the parties have agreed to those, I'll just simply reference that as whichever exhibit it is offered as, be it a prosecution or defense exhibit.

The nature of the offenses of which the accused has been convicted, Prosecution Exhibits 1 through 3 and 5 through 25 and any

960 other exhibits to be offered, as well as the testimony of the witnesses, including character witnesses. And then again, depending on the accused's election, then Line 22 to consider her testimony, her unsworn statement, if she does express a desire to remain in the service, those will be referenced for the members to consider, as well. If the accused declines to testify, then that instruction on the bottom of Page 4 will be provided to the members. If the accused elects to make an unsworn statement, the standard instruction that appears above the top of Page 5 will be provided. Then the standard sentencing instructions from the Navy- Marine Corps Trial Guide will follow concerning principles of sentencing and voting procedures on sentencing and so on. Again, we'll finalize the sentencing worksheet in a recess before you--before the members receive my sentencing instructions. Aside from the sentencing instructions that have already been discussed, do counsel have any requests for additional sentencing instructions or additional tailoring we have not already addressed? TC: None from the Government, sir. IMC: Sir, I think the only other issue is under Confinement, Line 13, Page 2. MJ: Yes. I crossed that typographical error, the life. IMC: The life, sir. Yes, sir. Thank you.

MJ: Yeah, there's some more tailoring that's going to be done to this. As I said, it was drawn up in haste during the lunch recess.

961 So I do appreciate that, and if you see any other errors that I have missed, certainly point those out and I'll make the necessary changes. Very well. So aside from that modification, any other requests for findings instructions or additional tailoring--I'm sorry--sentencing instructions or additional tailoring? TC: No, sir. IMC: No, Your Honor. MJ: Very well. And I believe we discussed sentencing witnesses. The Government anticipates one witness, correct? TC: That's correct, sir. MJ: And at this point one witness for the Defense? IMC: Yes, Your Honor. MJ: Very good. Other matters we need to address on the record before the members join us? TC: No, sir. IMC: No, sir. MJ: Very well. This 39(a) session is concluded. Bailiff, please ask the members to rejoin our court. BAILIFF: Aye, sir. [The Article 39(a) session concluded at 1409 hours, 24 May 2008.] [END OF PAGE]

962 [The court-martial was called to order at 1409 hours, 24 May 2008.] BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the lunch recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: The court will now hear the personal data concerning the accused. Lieutenant Commander Messer, will you please read the data to the members from the charge sheet. TC: Yes, sir. Name of Accused: Penland, Syneeda L. Social Security Number: Last four 9460. Rank and rate: Lieutenant Commander. Pay Grade: O-4. Unit or organization: Navy Coastal Warfare Group ONE, now command known as Maritime Expeditionary Security Group ONE. Current service: Initial date, 01 August '97 Term: Indefinite.

Basic pay: $6,404. Sea and foreign duty pay: Not applicable.

963 Total pay: $6,404. Nature of restraint of accused: Not applicable. Dates imposed: Not applicable. MJ: Thank you, Commander. Does the prosecution have any evidence to present on sentencing matters? TC: Yes, sir. The prosecution would call Chief Lewis-Wiggan to the stand. MJ: Very well. Bailiff, if you would please recall the witness on behalf of the court. [The bailiff retrieved the witness.] NAVY COUNSELOR CHIEF KIMBERLY LEWIS-WIGGAN, U.S. Navy, was recalled as a witness for the prosecution, was reminded of her oath, and testified as follows: DIRECT EXAMINATION Questions by the trial counsel: Q. Chief, I'd ask you to explain to the members what effect Lieutenant Commander Penland's actions in dealing with you from the period of September 2007 through to February--or excuse me--September 2006 through February 2007, what effect has that had on you? A. I can say honestly I have been thoroughly embarrassed. I have had to deal with this when I was on the MOBILE BAY. I had to look my chain of command in the face and show them--I had to let them into a part of my life that I didn't think I needed to let anybody into. I--I--I feel like kind of--I feel like I was one of those rape

964 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

965 officers, when they did something wrong or they didn't do something right, everyone I ever encountered before then would gladly stand up and admit they messed up or they did something wrong and they were man or woman enough to admit it, and that to me was something that put them above all others; and I don't think--to me, she's never going to say I'm sorry because she doesn't feel that she ever did anything wrong. She didn't feel like she intimidated me. She didn't feel like she did nothing---- IMC: Objection, sir. She's speculating to the feelings of Commander Penland. MJ: Sustained. You could ask a different question. WIT: Sorry about that, sir. MJ: Lieutenant Commander Messer. Q. Chief, let me ask you another question. Has your opinion of officers in the U.S. Navy changed because of the things that Commander Penland did to you? A. Before it did--before it really did. It bothered me a whole lot until I checked into my new command and I saw that the integrity was still there and they really took their oath seriously and they really meant what they were doing. And at first I was a little jaded, you know, I really was jaded because I was like, wow, how can somebody do this to me and, you know, and they don't seem to really care that they did it to me.

But when I checked in there, I got surrounded by positive people. So now I look back on the community and I look at the people

966 I serve with and I say, hey, these officers are outstanding. They're the best of the best as far as I'm concerned. So before I was--I was slightly jaded, but I'm coming back and I'm seeing that there are good officers out there and one doesn't spoil the whole bunch. Q. Does--the way you were treated by Commander Penland, has it changed your impression of the Navy as a whole? A. No. Nothing can change my impression of the Navy. It's the best organization in the world. I wanted to come in the Navy ever since I was a little kid and I'm proud to be in the Navy and nothing will ever change how I feel about being in the Navy. TC: Thank you very much, Chief. I don't have any other questions. WIT: Thank you, sir. MJ: Captain Callahan? IMC: Nothing. Thank you, Your Honor. MJ: Questions from our members? Negative response from all panel members. [The witness was excused and withdrew from the courtroom.] MJ: Further evidence from the prosecution on sentencing matters? TC: Nothing further from the Government, sir. MJ: Captain Callahan, does the Defense have any evidence to offer on sentencing matters at this time?

967 IMC: Yes, sir, the Defense does, but first Defense would request a 39(a) to address an issue with the military judge. MJ: Very well. Members, please cover your notes. Subject to the standard instructions I give you about discussing the case and so on and so forth, you may depart from the courtroom. Please remain in the deliberation area. BAILIFF: All rise. [All persons did as directed, and the members withdrew from the courtroom.] [The court-martial recessed at 1418 hours, 24 May 2008.] [END OF PAGE]

968 [The Article 39(a) session was called to order at 1418 hours, 24 May 2008.] MJ: Please be seated. [All persons did as directed.] MJ: The 39(a) session is now called to order. Let the record reflect that all parties present prior to the excusal of the members are again present before the Court at this time. Captain Callahan? IMC: Yes, sir. I did object during her testimony because I didn't feel it was the best way to handle it from a tactical decision in front of the members, but I would request that the Court instruct the members again at this time that Commander Penland does have an absolute right to remain silent and the fact that she has not apologized, thus implicating herself, cannot be considered by them as a basis for punishment of her. Again that amounted--that testimony in part amounted to a comment and even a request for punishment based on her right to remain silent which is clearly not permissible under the rules, sir. I also request that, in addition with that, that the members be instructed that the fact that Commander Penland has elected to go to trial on this issue cannot be used in any way to punish her for exercising her constitutional rights to a trial, and I feel that based on the emotional nature of her testimony that that curative instruction would be appropriate at this time vice later when the

969 other sentencing instructions are given, sir. MJ: Lieutenant Commander Messer? TC: No objection from the Government, sir. MJ: Very well. How do you want to phrase the second part of your request, Captain Callahan? IMC: Sir, something along the lines that Lieutenant Commander Penland has the constitutional right to go to trial and the fact that she exercised those rights and came to a trial cannot be held against her in any way. TC: Well, sir, I would object to that. I don't see how that's appropriate based on the testimony we just heard. We heard the witness say that the accused has never apologized to her. I think it's debatable. I think in context it was during pretrial, but I'd give the Defense a little leeway there. But then to instruct them on something as to it's her right to demand trial, I mean, the accused [sic] never made any mention that forcing her to come here and testify and making it difficult for her or anything like that. I don't see how that's relevant based on the witness' testimony. MJ: Captain Callahan, the context of the testimony you feel that deserves this instruction or merits the instruction? IMC: Sir, the fact that she testified about how embarrassing this has been and she's had to--she almost felt like a rape victim and she's had to go and retell this and retell this to people, and I think by implication that it includes coming in here and having to tell these senior officers about it, as well, sir.

970 TC: Absolutely no nexus to that, sir. That's ridiculous. And I believe if the judge would recount--could recall the testimony from his own notes, that she was referring to where she had to explain this to her chain of command when these things were happening to her. In fact, that was my question was how has the Commander's actions during that time period affected you, and she talked about it. She's not talking about her preparations for trial. She was very clear that she had to bring this up to her to her commands. MJ: With regard to your requests, Captain Callahan, the Court will instruct the members that Lieutenant Commander Penland has an absolute right to remain silent and that she cannot be punished for failing to apologize to NCC Lewis-Wiggan. The Court will also instruct something to the effect that Lieutenant Commander Penland has a constitutional right to a public trial and she may not be punished because NCC Lewis-Wiggan was called as a witness to testify. IMC: Thank you, Your Honor. MJ: Anything else we need to address at this 39(a) session? IMC: No, Your Honor. MJ: Very well. With regard to the--go ahead, Commander Messer. Anything else? TC: Nothing from me, sir. MJ: Okay. With regard to the Defense's sentencing evidence, I gather you're going to recall Commander Milner?

IMC: Yes, sir.

971 MJ: Any other evidence you anticipate providing the members or will you need a brief recess to resolve that issue? IMC: Request a brief recess after that, sir, to consult with my client, per her wishes. MJ: Very well. I will certainly give you that opportunity, and then also during that recess we can reexamine the sentence instructions, the sentencing worksheet, and you can prepare for your sentencing arguments. Very well. This 39(a) session is concluded. Bailiff, please ask the members to rejoin the court. [The Article 39(a) session concluded at 1423 hours, 24 May 2008.] [END OF PAGE]

972 [The court-martial was called to order at 1424 hours, 24 May 2008.] BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Members, I have an instruction for you. You may wish to take a note or not, your choice. With regard to the testimony of NCC Lewis-Wiggan, you are advised that Lieutenant Commander Penland has the absolute right to remain silent and that she cannot be punished for failing to apologize to NCC Lewis-Wiggan. You are further advised that Lieutenant Commander Penland has a constitutional right to a public trial and that she may not be punished because NCC Lewis-Wiggan was called as a witness to testify. Will all the members be able to follow these limiting instructions? Affirmative response from all panel members. Very well. Captain Callahan, does the Defense have any evidence it would like to offer the members on sentencing? IMC: Yes, sir. Sir, the Defense would recall Commander Milner.

973 MJ: Very well. Commander Milner, if you would resume your seat in the witness chair. COMMANDER LARRY D. MILNER, U.S. Navy, was recalled as a witness for the defense, was reminded of his oath, and testified as follows: DIRECT EXAMINATION Questions by the individual military counsel: Q. Good afternoon, sir. A. Good afternoon. Q. Sir, you've already came in and testified to the good military character that Commander Penland had when she worked for you. Would you please go into a little bit more detail and describe her as a person now. A. Yeah, I'll do that. First of all, judge, thank you very much for giving me the opportunity to speak here and try to help Lieutenant Commander Penland. And thank you, sir, and Commander Messer. You guys both did a great job. First of all, as I mentioned earlier, that I met--when I met Commander Penland, and my impressions of her were what I said they were, I did not--and they still are. I believe that at some period in time--some period--at some period in time things went kind of wacky and I've heard the testimony, the same testimony that the jury heard, and I respect the jury's verdict. I can understand how the jury came up with that verdict.

974 And, Commander Penland, I'm sorry about the verdict. But I think that--I think this phase of the trial right now the jury has a very, very difficult task and that's the sentence and all, sir, and also this---- TC: Sir, I'm going to object to this. This is non responsive to the question. He asked him to describe Lieutenant Commander Penland as a person. The witness is not addressing that. He's giving his own philosophy on sentencing. WIT: No. MJ: Captain Callahan? IMC: Sir, this is certainly stuff that the Defense would like to get into, as well; and I think, in the interest of allowing this very senior officer to testify, I'd request you relax the rules of evidence here for purposes of this and allow him to testify more in this narrative format. The Defense is satisfied with the---- MJ: Well, if you could ask maybe some focused questions so you can develop the areas you'd like to develop. IMC: Yes, sir. MJ: I still need to give your adversary an opportunity to object, as necessary. IMC: Yes, sir. Q. Sir, in your opinion, does Commander Penland have rehabilitative potential?

A. Yes, I do. As I was saying that and the reason why I say that is because this officer spent 18 years in the United States Navy

975 and has served the Navy well. She's wearing two pins. She served on ships. She's done a very, very good job. As I said, she worked for me and she did an outstanding job. As to whether or not--I know that the jury is at a point right now where they must sentence her, and I don't think that from a rehabilitative standpoint that to confine Commander Penland for what she was found guilty of doesn't---- TC: Sir, I'm going to object again. This goes beyond rehabilitative potential. He's now arguing that she not be confined. MJ: Captain Callahan? IMC: Sir, again he's getting into the basis for his opinion on her rehabilitative potential and---- TC: Sir, what he's using this witness to do is to tell the members what the sentence should be. He's basically making a sentencing argument through this witness. This is improper. MJ: Captain Callahan? IMC: Sir, again I think the witness is properly explaining why he believes that Commander Penland has rehabilitative potential. MJ: I'll allow the testimony along those lines, although obviously the ultimate sentence in this case rests with the members. IMC: Thank you, Your Honor. MJ: Commander, you can continue. WIT: I think that to confine Commander Penland would not be in the best interest of anybody. I think that to dismiss Commander Penland would not be in the best interest of anybody. My--and the

976 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.

977 MJ: But again, if we could maintain at least some focus on the principles of sentencing, that would be helpful I think for the members more than just a rambling narrative. IMC: Yes, sir. Q. Sir, do you know approximately how much time and money the Navy invests into an officer that's reached the point in their career that Commander Penland has reached? A. No, I don't know the exact amount, but certainly a lot of money, a lot of time. Q. And, sir, can you please describe her as a person, what type of character that she has, do you feel she has, even at this point standing here before this court-martial. A. My opinion of Commander Penland even after what I heard here, like I said, it shocks me. But I don't know. She was found guilty and so you believe that if a person is found guilty of an issue, then they done it. I believe--I don't feel--my opinion of her has not diminished. Q. Do you believe, sir, that this is an officer that would be capable of still providing valuable service to the United States Navy, that she would still be an asset to the Navy? A. Yes, I do. Performance wise, yes, I do. IMC: Thank you, sir. Thank you, Your Honor. I have no further questions.

MJ: Lieutenant Commander Messer, questions for the witness? TC: Just briefly, sir.

978 CROSS-EXAMINATION Questions by the trial counsel: Q. Commander, an officer with 18 years experience, the experiences that Lieutenant Commander Penland has had, both as an enlisted Sailor and as a commissioned officer, don't you think she should have known better at that point? I mean, you talk about all of this experience, all of this--all of these things that she's gained through her Naval service and how that's an asset to the Navy, but isn't that also make--beg the question what the heck was she thinking when she did this? A. Yes, it does. Q. And wouldn't you agree that someone so close to getting to a 20-year milestone of their career, someone with so many years invested, when you're talking about rehabilitative potential, we're past rehabilitation here and we're at the point where what's left to rehabilitate? This is someone towards the end of their career possibly, certainly well past the midpoint. So when you're talking rehabilitative potential, isn't it kind of a little too late in the game for that? A. No. Q. Now, you said that you didn't believe confinement was appropriate or dismissal. I mean, obviously Commander Penland has been convicted of some serious offenses here. What kind of message does that send to the deck plate Sailor in the fleet when you have someone convicted at a general court-martial but they don't receive

979 any serious type of punishment? Don't you think that's sounds--sends a contradictory message to the Sailors in the fleet? A. In regards to this particular case here? Q. Yes, sir. A. I think that while the charges or the offenses that Commander Penland was found guilty of, I think that it does not reach that level of to confine someone. Yes, sir. Q. So you're comfortable with the notion that these offenses go out to the fleet, people know that a senior officer, an O-4 with 18 years experience, was convicted of these things and then they're going to read but the Sailor got no confinement and was not dismissed from the Naval Service, and you're comfortable with that? A. In this particular case here, yes. TC: Thank you, sir. MJ: Captain Callahan, redirect? IMC: No. Thank you, Your Honor. MJ: Questions from our members? Negative response from all panel members. [The witness was excused and remained in the courtroom.] MJ: And I'll just note for the record the Commander testified that he has heard the testimony in this case and he has sat through the trial, without objection from either side, so that's the basis for that testimony.

Further evidence from the Defense on sentencing matters, or do you desire a brief recess, Captain?

980 IMC: Desire a brief recess, Your Honor. MJ: Very well. Members, please cover your notes. Subject to my standard instructions, you may depart on recess. Please reassemble at 10 minutes to the hour. BAILIFF: All rise. [All persons did as directed.] MJ: Members may depart. Court stands in recess. Carry on. [The members withdrew from the courtroom.] [The court-martial recessed at 1436 hours, 24 May 2008.] [END OF PAGE]

981 [The Article 39(a) session was called to order at 1545 hours, 24 May 2008.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time. During the recess, the court has received and marked a number of exhibits. Prosecution Exhibit 26 for identification is the personal data sheet. During the recess, both sides had an opportunity to review and suggest changes to this particular exhibit. Lieutenant Commander Messer, does the Government desire to enter into evidence Prosecution Exhibit 26 for identification? TC: Yes, sir. MJ: Any objection from the Defense? IMC: No, Your Honor. MJ: There being no objection, Prosecution Exhibit 26 for identification will now be received into evidence and the words "for identification" will be deleted by our court reporter, and the parties may publish the exhibit at an appropriate time. Also, during the exhibit--during the recess Defense Exhibit A for identification was received by the Court. Lieutenant Commander Messer, have you had an opportunity to review Defense Exhibit A for identification? TC: I have, sir.

MJ: Captain Callahan, would you like to move that exhibit into evidence at this time?

982 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.

983 MJ: Have you had an opportunity to discuss this matter with your defense counsel? ACC: Yes, sir. MJ: And is it your personal decision to remain silent and not offer a statement to the court? ACC: Yes, sir. MJ: Very well. I will properly instruct the members concerning that right, that they may not hold it against you in any manner. Counsel, for planning purposes, it is my intention to instruct the members substantially as reflected in Appellate Exhibit LXIII, so you may rely upon the instructions contained therein in aid of your arguments. When the members return momentarily, we will receive any additional evidence on sentencing matters and then the counsel will be offered an opportunity to argue as to an appropriate sentence in this case. We'll take then a brief recess so I can finalize the draft sentencing instructions and also receive the sentencing worksheet after your review. Are there other matters we need to address prior to having the members rejoin us? IMC: Not from Defense, Your Honor. TC: Nothing from the Government, sir. MJ: Very well. This 39(a) session is concluded.

Bailiff, please ask the members to rejoin the court. [The Article 39(a) session concluded at 1549 hours, 24 May 2008.]

984 [The court-martial was called to order at 1549 hours, 24 May 2008.] BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: My apologies, members, for the extensive time it took outside of your presence. During that time, we needed to verify certain information that will be provided to you later to ensure that it was accurate. Having done so, I suspect and hope that the proceedings will be conducted with fewer future delays. Captain Callahan--let me just also note. During the recess, at a hearing outside your presence, the Court did receive a number of exhibits that will be offered to you for your consideration, to include Prosecution Exhibit 26 and Defense Exhibit A. Captain Callahan, does Defense have any additional evidence to offer the members on sentencing matters at this time? IMC: No, Your Honor.

MJ: Very well. Does the prosecution have any evidence in rebuttal?

985 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.

986 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

987 people that surrounded this trial on the stand. You know what happened and you know that someone with this type of service, 18 years, both as an enlisted Sailor and as an officer, and then to get to that point in their career and to make those decisions and take that course of action is something that is unexcusable. So I ask you to make the right decision here and return a sentence of dismissal from the Naval Service. Thank you. MJ: Captain Callahan, your argument as to an appropriate sentence, please. IMC: Thank you, Your Honor. Good afternoon, ladies and gentlemen. Ladies and gentlemen, first of all the Defense does not dispute the charges are important charges and should, in fact, be charges under the UCMJ. It is important to consider what Commander Penland was, in fact, convicted of. She was convicted of purely military offenses. Are they justifiable offenses, yes, they certainly are and we hold people to a higher standard in the military, and this court-martial has done that by giving a federal criminal conviction to this officer for things that are not even a conviction in the outside world. In the outside world, there aren't convictions for things like adultery, for orders violations. It's not your--what's considered--typically considered criminal behavior such as assault, battery, theft, things along those lines; and because of that it is very important to consider what is an appropriate punishment for something that is of a military nature.

988 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.

989 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

990 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.

991 Court stands in recess. The members may depart. BAILIFF: All rise. [All persons did as directed, and the members withdrew from the courtroom.] MJ: Counsel, if we could reassemble in about 10 minutes. Carry on, please. [The court-martial recessed at 1600 hours, 24 May 2008.] [END OF PAGE]

992 [The Article 39(a) session was called to order at 1620 hours, 24 May 2008.] MJ: This 39(a) session is called to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, except for the members who are still in recess. During the recess, the Court received a revised sentence worksheet; that's been marked Appellate Exhibit LXII. Do counsel have any objections to the revised sentencing worksheet? TC: No, sir. IMC: No, Your Honor. MJ: Very good. During the recess, I also provided to counsel what has been marked Appellate Exhibit LXIV which is my final draft of the sentencing instructions. With regard to Page 2, Line 25, I will insert the appropriate pay figure which apparently is $9,131; that's reflected on the sentence worksheet. I made some other minor typographical edits, as well. Do counsel have any objections to the proposed sentencing instructions or requests for additional instructions not already on record? IMC: No, Your Honor.

TC: No, sir.

993 MJ: Then also for your benefit I intend to respond to the members' questions as follows: I will tell them I intend to respond to the questions submitted earlier as Appellate Exhibits LIX and LX after they have announced the sentence in the case. I will further instruct them that the matters raised by those questions may have no bearing on their determination of an appropriate sentence in the case, and that referred back to whether the members could recommend perjury charges or raise that to the attention of the proper authority. Any objection to the Court's proposed handling of the members' questions that were asked earlier? TC: No, sir. IMC: No, Your Honor. MJ: Any other matters we need to address on the record before the members join us? TC: No, sir. IMC: No, Your Honor. MJ: Very well. This 39(a) session is concluded. Bailiff, please ask the members to join our court. [The Article 39(a) session concluded at 1622 hours, 24 May 2008.] [END OF PAGE]

994 [The court-martial was called to order at 1623 hours, 24 May 2008.] BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court is called back to order. Let the record reflect that all parties present prior to the recess are again present before the Court at this time, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Bailiff, if you would please approach and provide a copy of Appellate Exhibit LXIV to each member. [The bailiff handed copies of AE LXIV to all members.] MJ: Members of the court, before I go into the instructions on sentencing, it is my intent to respond to your questions that were submitted earlier and marked as Appellate Exhibits LIX and LX. I will respond appropriately to those questions after you have announced the sentence in this case. You are now instructed that the matters raised by those questions may have no bearing on your determination of an appropriate sentence in this case. Members, again, this is your copy of my instructions on sentencing. You may mark on this copy that you have received if you so desire.

995 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

996 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.

997 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

998 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

999 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;

1000 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

1001 (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

1002 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

1003 those matters up with you. Again, I would ask that if you have any questions, write them down on one of the forms provided so that an accurate record of your question can be maintained. You may not consult the Manual for Courts-Martial or any other writing not admitted, and any instructions must not be interpreted as indicating any opinion on my part as to what would be an appropriate sentence in this case. In your deliberations room, you will have all the exhibits that have been admitted into evidence. Please do not write on any of these exhibits, except obviously for the sentence worksheet. Members, in accordance with your best judgment, based upon the evidence that has been presented in this court, and your own experience and general background, you should select a sentence which best serves the ends of good order and discipline in the military, the needs of this accused, and the welfare of society. If there are any questions about these instructions, members, please raise your hands. Negative response from all panel members. Do counsel for either side have any objections not already on record to the instructions given or requests for additional instructions not already on record? TC: No, sir. IMC: No, Your Honor.

MJ: Very well. Bailiff, if you would please approach our court reporter and retrieve the exhibits that have been properly admitted

1004 into evidence, specifically Prosecution Exhibits 1 through 26, except Number 4, and Defense Exhibit A. Captain Gentile, if you would verify that those exhibits are in the folder that's been provided to you, sir. Again, that's Prosecution Exhibits 1 through 26, except for Number 4, and Defense Exhibit A. PRES: [Verifying receipt of applicable exhibits.] Did you say 1 through 26? MJ: Yes, sir, except for Number 4. PRES: Oh, right, that's correct. And Defense Exhibit A. MJ: Very good, sir. Members of the Court, once again, should it become necessary for you to leave the deliberation room for any purpose, we must return to an open session of court, recess, reassemble, and again formally close for deliberations. You are reminded that this is a vital legal requirement to ensure that you are all present at all times for your deliberations. Are the members prepared to deliberate as to an appropriate sentence, Captain? PRES: We are. MJ: Very well, sir. This court is closed for your deliberations. You may depart for the deliberation room. BAILIFF: All rise.

[All persons did as directed, and the members withdrew from the courtroom.]

1005 MJ: Court is closed. Carry on. [The court-martial closed at 1638 hours, 24 May 2008.] [The court-martial opened at 1815 hours, 24 May 2008.] MJ: Bailiff, please ask the members to join us. BAILIFF: All rise. [All persons did as directed, and the members entered the courtroom.] MJ: Members, please take your seats when you arrive at them. [The members did as directed.] MJ: This court will come back to order. Let the record reflect that all parties present prior when the court closed for deliberations are again present before the Court, to include all of our members. All others, please be seated. [All persons did as directed.] MJ: Captain Gentile, has the court determined an appropriate sentence in this case? PRES: Yes, we have, Your Honor. MJ: Sir, is that sentence accurately reflected on the sentencing worksheet? PRES: Yes, it is. MJ: Have you signed the worksheet, sir? PRES: Yes, I have. MJ: Bailiff, if you would please bring the worksheet to me so I can determine if the sentence is in appropriate format. [The bailiff handed AE LXI to the military judge.]

1006 MJ: Thank you. [Reviewing AE LXI.] Sir, if I would ask you to cross out all the punishments that were not selected. PRES: No problem. Thanks. [The bailiff handed AE LXI to the president; the president crossed out punishments not selected.] MJ: And if I could see the worksheet once again, please. [The bailiff handed AE LXI to the military judge.] MJ: [Reviewing AE LXI.] The sentence is in proper format. Bailiff, if you would please return the sentence worksheet to our senior member. [The bailiff handed AE LXI to the president.] MJ: Accused and Counsel, please rise. [The accused and her counsel did as directed.] MJ: Captain Gentile, if you would please announce the sentence of this court. PRES: Lieutenant Commander Syneeda L. Penland, Supply Corps, United States Navy, court-martial sentences you:

To be reprimanded; To forfeit $4500 of your pay and allowances per month for 2 months; To be confined for 60 days. MJ: Thank you. Please be seated. [The accused and her counsel did as directed.]

MJ: Bailiff, if you would retrieve the sentencing worksheet along with the other exhibits and return them to our court reporter. [The bailiff did as directed.]

1007 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

1008 court. You are each entitled to that privacy. On the other hand, you are free to talk to anyone about the case, including me, the attorneys, or anyone else. You can also decline to participate in such discussions, if that's your choice. Your deliberations are carried on in the secrecy of the deliberation room to permit the utmost freedom of debate and so that each of you can express your personal views without fear of being subjected to any public scorn or criticism by the accused, the Convening Authority, or by anyone else. In deciding whether to answer questions about this case and, if so, what to disclose, you should have in mind your own interests and the interests of the other members of your court. Does any member have any questions at this time that I can answer? Negative response from all panel members. Members, I thank you for your service during these extended sessions, especially for your focus and for your consideration, and in a moment you are relieved and you may return to your normal duties, which I hope includes liberty. Please leave behind any exhibits, and I think we've collected those. You can take your notes with you, if you'd like, or you can leave them behind and they'll be destroyed by our court reporter. Members of the court, thank you. You may stand down and resume your normal duties. You are excused.

BAILIFF: All rise. [All persons did as directed.]

1009 MJ: Members may depart. [The excused members withdrew from the courtroom.] MJ: Please be seated. [All persons did as directed.] MJ: This 39(a) session is called to order. Let the record reflect that the members have departed from our courtroom. Let me verify with the parties. There is no pretrial agreement in this case, correct? TC: That's correct, sir. IMC: Correct, Your Honor. MJ: Very well. Captain Callahan, have you had an opportunity to discuss appellate and post-trial rights with your client? IMC: I have, Your Honor. MJ: If I could retrieve the appropriate appellate exhibit. [The court reporter handed AE LXV to the military judge.] MJ: Lieutenant Commander Penland, I am holding up Page 2 of Appellate Exhibit V [sic]. Above the words "Signature of Accused" there is a signature. Is that your legal signature? ACC: [Shaking head.] MJ: You're shaking your head. Did you sign this document? ACC: [No response.] MJ: Commander?

ACC: [No response.]

1010 MJ: Let me just approach it in a different way. Captain Callahan, did your client sign this document? IMC: She did, Your Honor. MJ: And did you have an opportunity to explain and discuss all the appellate and post-trial rights that are outlined in this document? IMC: I did, Your Honor. MJ: According to this document, your client has elected to have her copy of the record of trial along with the staff judge advocate or legal officer recommendation to be delivered to you. Is that correct? IMC: It is, Your Honor. MJ: Very well. Appellate Exhibit LXV will be appended to the record of trial in this case. And at this point, counsel, is there anything else we need to address on the record? TC: No, sir. IMC: No, Your Honor. MJ: Very well. This court-martial stands in adjournment. Carry on. [The court-martial adjourned at 1822 hours, 24 May 2008.] [END OF PAGE]

1011 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

1012

1013