Free Trial Brief - 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, 2. GEORGE ALAN WEED, 4. CHARLES LEWIS, and 6. MICHAEL SMITH, Defendants.

GOVERNMENT'S TRIAL BRIEF

The United States of America (the government), by and through Assistant United States Attorneys Matthew T. Kirsch and Wyatt Angelo, files this trial brief in an attempt to advise the Court in advance of legal issues which may arise during trial. Prior Convictions for Government Witnesses Should Not Be Admissible 1. Rule 609 of the Federal Rules of Evidence generally prevents the admission of evidence that a witness other than the accused has been convicted of a felony "if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect." Fed. R. Evid.

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609(b). 2. Evidence of previous misdemeanor convictions is never admissible for impeachment purposes unless the crimes involved dishonesty or false statements. Fed. R. Evid. 609(a). 3. The government has conducted criminal history searches for all of the witnesses on its witness list and is not aware of any whom have misdemeanor convictions for crimes involving dishonesty or false statements. The government is aware of one witness who successfully completed one year of probation for a federal conviction for violating Title 21, United States Code, Section 863(a)(2), in 1986. That case was subsequently dismissed. The defendants have produced no records in discovery and have not otherwise suggested that the government's criminal history searches are deficient. On these facts, the defendants should be precluded from asking government witnesses questions concerning any prior criminal convictions. Cross-Examination Concerning the Defendants' Character 4. In the event that any of the defendants seeks to introduce evidence of his reputation for good character or honesty, the government intends to crossexamine witnesses offering such testimony about one or more of the instances set forth in the government's NOTICE OF INTENT TO SEEK ADMISSION OF EXTRINSIC EVIDENCE [# 289]. 5. It has long been established that, if a defendant offers evidence of his character in an attempt to convince the jury that he would not be likely to commit the

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charged offense, the government may cross-examine any witnesses offering such evidence, including a defendant himself, concerning specific instances of conduct inconsistent with the proffered reputation. United States v. Michaelson, 335 U.S. 469, 479 (1948); see generally 1 John W. Strong et al., McCormick on Evidence §191 (5th ed. 1999); 22 Charles A. Wright & Kenneth W. Graham, Federal Practice & Procedure § 5236 (1978). The Tenth Circuit has specifically construed Rule 405 of the Federal Rules of Evidence to allow "have you heard" questions concerning specific instances of conduct on crossexamination. United States v. McHorse, 179 F.3d 889, 901-02 (10th Cir. 1999); Securities & Exchange Comm'n v. Peters, 978 F.2d 1162, 1169 (10th Cir. 1992). The purpose of such questions is to test whether the witness is fully informed as to the defendant's character. Michaelson, 335 U.S. at 483; McHorse, 179 F.3d at 902. "The cross-examination may take in as much ground as the testimony it is designed to verify." Michaelson, 335 U.S. at 484 (approving admission of questions on cross-examination about a twenty-sevenyear-old arrest after the defendant offered testimony including the traits of "honesty and truthfulness" and "being a law-abiding citizen"). 6. In this case, if the any of the defendants offers evidence of his good character or honesty, cross-examination concerning whether the character witnesses are aware of the incidents described in the government's proffer concerning 404(b) evidence would be appropriate and proper to test the reliability of the witnesses' information and judgment.

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The Government Intends to Offer Statements as Described in Its Bruton Log 7. On May 5, 2005, the government filed a BRUTON LOG [# 422], which set out those statements potentially implicating Bruton v. United States, 391 U.S. 123 (1968), as well as the government's proposals for avoiding Bruton issues through modifications of some statements. The defendants have never filed any responses to the log or otherwise challenged its contents. Absent further order from the Court, the government intends to proceed at trial by offering this evidence in the manner set forth in the BRUTON LOG. Respectfully submitted this 30th day of March, 2007. TROY A. EID United States Attorney

s/ Matthew T. Kirsch MATTHEW T. KIRSCH WYATT ANGELO Assistant United States Attorneys 1225 17th Street, Suite 700 Denver, CO 80202 Telephone 303-454-0100 Facsimile 303-454-0402 Email: [email protected] [email protected]

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 30th day of March, 2007, I electronically filed the foregoing GOVERNMENT'S TRIAL BRIEF 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, 7th Floor Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 Email: [email protected]

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