Free Objection (Other) - District Court of Colorado - Colorado

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

Document 1107

Filed 04/08/2007

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. Norman Schmidt, George Alan Weed, Charles Lewis, Michael Smith, Defendants.

Defendant Smith's Objection to Government Rule 902(11) Declarations Defendant Michael Smith, through his court-appointed attorney Richard N. Stuckey, respectfully submits this Objection to Government Rule 902(11) "declarations," which the prosecution intends to utilize in order to introduce into evidence voluminous bank records in the trial of this case. Defendant Smith specifically objects to the use of these "declarations" from bank records custodians for authentication under Federal Rules of Evidence, Rule 902(11) because they do not identify the "person with knowledge" as required by the rule, and moreover, upon information and belief, no such person exists because of the manner in which bank records are originated, kept, and maintained in bank computers and according to bank computer programs. Rule 902(11) allows authentication of a business record otherwise admissible under Federal Rules of Evidence, Rule 803(6), as a business record,

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

Document 1107

Filed 04/08/2007

Page 2 of 3

". . . if accompanied by a written declaration of its custodian or other qualified person . . . certifying that the record . . . was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters . . ." Upon information and belief, all these records are computer processed and created through the magnetic numbers or scannable codes on checks, deposit tickets, or other bank account documentation. No "person with knowledge" is ever involved in entering the credit and debit transactions onto the bank statements thereby created. This objection is specifically made to Government Exhibits for Identifcation 9190-9276 (87 total exhibits from US Bank) and Exhibits 9330-9401 (72 total exhibits from Wells Fargo Bank. It is respectfully submitted that preliminary voir dire of the first bank record custodians which the government has indicated it intends to call will show the allegations regarding the processing and making of bank records as set forth above, and it is respectfully requested that the Court hear this objection and voir dire outside the presence of the jury at an appropriate time. Date: April 8, 2007 Respectfully submitted, ___________________ s/Richard N. Stuckey Attorney for Michael Smith 2150 West 29th Ave. Suite 500 Denver, CO 80211 Telephone: 303-455-4545 Facsimile: 303-458-6338 email: [email protected] email: [email protected]

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

Document 1107

Filed 04/08/2007

Page 3 of 3

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification to the following email addresses this 8th day of April 2007: Matthew T. Kirsch [email protected] Wyatt Angelo [email protected] Peter Borstein [email protected]

Thomas Hammond [email protected] Thomas Goodreid [email protected] Ronald Gainor [email protected]

Declan J.O'Donnell [email protected]

___________________ s/Richard N. Stuckey Attorney for Michael Smith 2150 West 29th Ave. Suite 500 Denver, CO 80211 Telephone: 303-455-4545 Facsimile: 303-458-6338 email: [email protected] emaill: [email protected]