Free Response - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 04-cr-00103-REB UNITED STATES OF AMERICA Plaintiff, v. 1. NORMAN SCHMIDT, and 6. MICHAEL SMITH. Defendants.

GOVERNMENT'S RESPONSE TO DEFENDANTS NORMAN SCHMIDT AND MICHAEL SMITH'S OBJECTIONS TO THE GOVERNMENT'S RULE 902(11) DECLARATIONS

The United States of America (the government), by and through Assistant United States Attorneys Matthew T. Kirsch and Wyatt Angelo, responds to defendant Norman Schmidt's Objection to the Government's Declarations Purported to Be Offered Pursuant to Rule 902(11) of the Federal Rules of Evidence [# 1109] and defendant Michael Smith's Objection to Government Rule 902(11) Declarations [# 1107] as follows: 1. Defendant Schmidt's first objection to the government's proffer of evidence pursuant to Rule 902(11) of the Federal Rules of Evidence is based on his claim that he has not had sufficient time to review the relevant records. This claim has no merit. The originals of all of the bank records, the records which defendant Schmidt correctly describes as voluminous, have been available to the defense

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in this case since 2004. In fact, over the course of several days sometime prior to the original trial date in September 2005, an investigator working for defendant Schmidt reviewed the original bank records. After the government filed its Rule 902(11) Notice [# 1061] on March 22, counsel for defendant Schmidt made no requests for additional review of these documents.1 Defendant Schmidt's related assertion that he had insufficient time to locate and interview the declarants identified in the declarations should be rejected as well; at the initial pre-trial conference on March 2, 2007, the government had already provided addresses for each of these declarants. 2. Defendant Schmidt's second complaint concerns the "proposed" format of declarations which pertain to government exhibits 510, 9060-9070, and 91009101. This complaint has been moot since March 30, 2007, when the government provided defense counsel with executed copies of each of these three declarations. 3. Defendant Schmidt's third complaint is that his counsel cannot review the actual records because they have not previously received them in the exact format in which they have been marked as exhibits.2 The government explained the procedure it intended to follow in marking and introducing the bank records at issue in this case during the first pre-trial conference and received no objections

The government also notes that defendant Weed's counsel made arrangements with the government and reviewed the original records to which the proposed declarations relate within a few days of the filing of the government's notice. This is not true of government exhibit 510, a copy of which has been provided to the defense. 2
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from defendant Schmidt's counsel. At the second pre-trial conference, on March 30, 2007, the government again explained the procedure it intended to follow with the bank records and specifically offered to make the exhibits containing the bank records available to counsel for defendant Schmidt for review. The records also have been available within the courtroom for review since the trial began. Counsel for defendant Schmidt have never requested further review of these documents. On these facts, defendant Schmidt has not demonstrated why he has had insufficient time or opportunity to review the records in question. 4. Both defendant Schmidt and defendant Smith challenge the declarations proposed by the government on the grounds that the declarants do not have personal knowledge concerning the creation of the records themselves. It is well established, however, that a records custodian does not need personal knowledge of the creation of the records at issue, or even of the identity of the person who created those records, to establish the prerequisites for admissibility of business records set forth in Rule 803(6). United States v. Salgado, 250 F.3d 438, 451-52 (6th Cir. 2001); Resolution Trust Corp. v. Easton, 17 F.3d 1126, 1132 (8th Cir. 1994); United States v. Basey, 613 F.2d 198, 201 n.1 (9th Cir. 1980); United States v. Parker, 749 F.2d 628, 633 (11th Cir. 1984). This lack of necessity of personal knowledge should be particularly true with respect to bank records, which "are particularly suitable for admission under Rule 803(6) in light of the fastidious nature of record keeping in financial institutions, which is often required by government regulation." United States v. Johnson, 971 F.2d

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562, 571 (10th Cir. 1992). Any lack of personal knowledge by the declarants is irrelevant to their competence as business records custodians. 5. Defendant Smith makes the further, related objection that the government's declarations are insufficient because they pertain to records created at least in part by computers and therefore cannot have been created by a "person with knowledge." This argument also contradicts well established law allowing computer-generated records to be treated as business records pursuant to Rule 803(6). See, e.g., United States v. Cestnik, 36 F.3d 904, 909-910 (10th Cir. 1994) (affirming the admission of computer records of money transfers pursuant to Rule 803(6)); United States v. Hayes, 861 F.2d 1225, 1228 (10th Cir. 1988) (citing cases from the Seventh and Fifth Circuits for the "well established proposition that `computer data compilations may constitute business records for purposes of 803(6) . . .'") (citations omitted); Salgado, 250 F.3d at 452 (rejecting argument that 803(6)'s requirements not satisfied because the records in question were entered into a computer's memory by the computer itself rather than by a person). Defendant Smith's challenge to the declarations based on the fact that some of the records to which they pertain may have been made by computers rather than people should fail. 6. Defendant Schmidt also professes ignorance as to the manner of creation of the declarations. This ignorance is puzzling, given that counsel for the government explained the process which led to their creation to counsel for defendant Schmidt before the trial commenced. Nevertheless, the government will repeat

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that description here for the benefit of counsel and the Court. The declarations pertaining to exhibits 9022, 9023, and 9050 were created contemporaneously with the production of those records in response to subpoenas from the government. The declarants in the remaining declarations were provided with the actual, original records, marked with the exhibit stickers which they now bear, in advance of the trial. The declarants therefore reviewed the very same documents which now constitute the government's trial exhibits before they signed their declarations. In either of the circumstances described above, there should be no question that the declarations pertain directly to the documents contained in the government's trial exhibits. 7. Defendant Schmidt challenges the declarations of the foreign declarants on the basis that they do not fully satisfy Rule 902(12). As the government previously indicated in its Notice, it intends to authenticate these documents as required by Rule 901(a) through a combination of certificates in the form prescribed by Rules 902(11) and 902(12) and testimony from witnesses. The government recognizes that Rule 902(12), standing alone, does not apply to criminal cases. 8. Finally, defendant Schmidt also suggests that he has relevance objections to some of the bank records. The government suggests that these objections target an issue other than authentication and may be addressed at trial. In the interests of increasing the efficiency of the trial, however, the government hereby renews its invitation to defendant Schmidt's counsel to raise such relevance objections directly with the government so that the government can attempt to address such objections prior to offering the exhibits at trial. 5

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Respectfully submitted this 11th day of April, 2007. TROY A. EID United States Attorney

s/Matthew T. Kirsch Matthew T. Kirsch Wyatt B. Angelo Assistant United States Attorneys 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 email: [email protected] [email protected]

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 11th day of April, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANTS NORMAN SCHMIDT AND MICHAEL SMITH'S OBJECTIONS TO THE GOVERNMENT'S RULE 902(11) DECLARATIONS with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Peter Bornstein, Esq. [email protected] Thomas Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected]

Richard N. Stuckey, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Ronald Gainor, Esq. [email protected] s/Matthew T. Kirsch Matthew T. Kirsch Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 email: [email protected]

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