waive them. I don't think that really plays into the analysis.

It may be a small factor, but just because -- even assuming that the defense is right about that, that's not a sufficient factor for the waiver of rights and the confession to be involuntary. And that would be the only response, sir. MJ: / I have no evidence as to this alleged confession made by Sergeant Ehlers. There's references both in the Appellate Exhibit XXVI, a passing reference by Special Agent Meulenberg . There ' s nothing in the body of the government's motion that I see. Can you point to me, government, any evidence you /OQJ? provided me about, this statement we're even talking about? ' TC: MJ: Sir, the only evidence is in a Results of Interview, and the government has not provided that to the court. I don't even know -- I assume based on the testimony of Sergeant Ehlers for the limited purposes of the motion he made oral responses to Special Agent Meulenberg.

y

TC:

Yes, sir.
Is someone going to present me some evidence as to those oral responses? Yes, sir. I can make the court a copy of that right now.

MJ: TC: MJ:

The court will be in recess while you do that.

The Article 39 (a) session recessed at 1812, 31 July 2007. The Article 39 (a) session was called to order at 1821, 31 July 2007. MJ: The court is called back to order. All parties present when the court last recessed are once again present. During the recess, I was provided what has now been marked as Appellate Exhibit XXIX. It appears to be a document entitled U.S. Naval Criminal Investigative Service Investigative Action dated 27 May 2005.

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I take it, Captain Ellis, you want me to consider this as evidence of the statements made allegedly by Sergeant Ehlers?
TC:

Yes, sir.
Lieutenant Melowcowsky, you've been provided a copy of Appellate Exhibit XXIX? Sir, I have. Any objection to my considering this as part of the government's response to your motion? f Yes, sir. We'd object on the grounds of authenticity and the cross-examination. We don't have the opportunity to cross-examine the witness to determine -- I mean, clearly this is a summary. We don't know what he was summarizing or in his mind or what details he may or not have left out. C Your concerns are shared and noted, but your objection is \ overruled.

MJ: DC: MJ: DC:

MJ:
DC:

Yes, sir.
Additional grounds for your objection? I'm sorry? Additional grounds for your objection?
No, sir.

MJ: DC: MJ:
DC:

MJ:

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

TC: DC:

No, sir. No, sir.

MJ:
TC:

Does either side feel the need to argue in light -- argue again in light of Appellate Exhibit XXIX?
No, sir.

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