Free Pretrial Memorandum - 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 MEMORANDUM CONCERNING PROPOSED JURY INSTRUCTIONS AND VERDICT FORMS

The United States of America (the government), by and through Assistant United States Attorneys Matthew T. Kirsch and Wyatt Angelo, respectfully submits this memorandum in support of its non-stipulated jury instructions and verdict forms, which were provided earlier today to the Court and counsel via electronic mail. The memorandum also addresses additional instructions proposed by defendant Smith. 1. On February 8, 2007, the government mailed all defense counsel a copy of its draft instructions and verdict forms. In that letter, the government requested that defense counsel provide their respective positions concerning the government's instructions as well as any as competing or non-stipulated instructions by February 23, 2007. As of the filing of this memorandum, the government has received responses to this request only from Richard Stuckey, counsel for

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defendant Michael Smith. The government is therefore submitting all of its instructions as non-stipulated, although Mr. Stuckey has indicated that defendant Smith will stipulate to government instructions G-1, G-2, G-3, G-5, G-6, G-7, G-8, G-10, G-11, G-13, G-14, G-15, G-16, G-17, G-18, G-19, G-21, G-26, G-29, G-30, G-31, G-32, and G-33, as well as to the government's verdict form. Supporting Authority for Government's Non-Stipulated Instructions 2. The government contends that its proposed instructions accurately state the law relevant to the charges at issue in this course. With the exceptions noted on the instructions themselves, the government's instructions are based on stock instructions from Criminal Pattern Jury Instructions (Tenth Circuit) (2005), or if a Tenth Circuit pattern is not available, from O'Malley, Grenig, & Lee, Federal Jury Practice & Instructions (5th ed. 2005). Modifications to these instructions are based on the particular facts of this case and/or the government's understanding that it is not the Court's practice to provide the jury with a copy of the indictment during its deliberations. Those instructions for which defendant Smith has submitted competing instructions are addressed more fully below. Instruction Nos. G-4, G-9, G-12, & G-28 3. The government's instructions are based on the Tenth Circuit pattern instructions. Defendant Smith's instructions are based on O'Malley pattern instructions. The government contends that the Tenth Circuit pattern instructions are appropriate absent a demonstrated defect in a particular instruction, none of which have been identified by defendant Smith.

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Instruction No. G-20 4. The government's instruction excerpts the relevant portions of the Count 1 of the Second Superseding Indictment, based again on the government's understanding that the jury will not receive a copy of the indictment. Defendant Smith objects to the inclusion of the words "a fraudulent" and "the fraudulent" from these portions of the indictment. The government contends that these words are properly included in the instruction because they are a part the conspiracy charged by the government. In addition, instruction nos. G-1, G-5, and G-20 all make clear that the indictment merely states the charges and does not constitute evidence. Instruction No. G-22 5. The government's instruction is based on a Tenth Circuit pattern, which is based in turn on the principles of coconspirator liability as described in Pinkerton v. United States, 328 U.S. 640, 646-47 (1946), and United States v. Russell, 963 F.2d 1320, 1322 (10th Cir. 1992). Because defendant Smith does not state the basis for his objection to this instruction, the government in unable to further respond to his objection. Instruction Nos. G-23 & G-24 6. Instruction nos. G-23 and G-24 are based on Tenth Circuit patterns. Defendant Smith's instructions appear to differ from those proposed by the government only in their elimination of the reference in the third paragraph of each of the government's instructions to the aiding and abetting instruction, no. G-28. Assuming that the jury will not have a copy of the indictment, the government 3

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contends that this reference is appropriate to explain to the jury the various standards against which they should determine the defendants' guilt for each of the charged counts. Instruction Nos. G-25 & G-27 7. The government has not determined the difference between its instructions and the corresponding instructions proposed by defendant Smith. Instruction No. G-34 8. The government is aware of the Court's previous ruling concerning the admissibility of evidence previously proffered by the government pursuant to Rule 404(b) of the Federal Rules of Evidence. The government is proposing this instruction in the event that testimony or other evidence offered by the defendants opens the door to the evidence which the Court has otherwise ruled inadmissible. See paragraph 15, infra. Objections to Defendant Smith's Proposed Instructions 9. With the exception of instruction no. Smith 31A, the government currently objects to all of defendant Smith's instructions because they will not be appropriate unless and until he offers evidence at trial to support them. The government's position with respect to each of these instructions is further elaborated below. Instruction No. Smith 31A 10. These instruction deals with the same subject matter as instruction no. G-16, which is based on a Tenth Circuit pattern and to which defendant Smith stipulates. The government contends that it would be confusing and unnecessary to have an additional instruction on this same topic. 4

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Instruction No. Smith 31B 11. This instruction purports to be a theory of the defense instruction, but it is wholly improper as offered. In general, a defendant is entitled to a theory of defense instruction "provided that theory is supported by some evidence and the law." United States v. Williams, 403 F.3d 1188, 1195 (10th Cir. 2005) (citations omitted). A theory of defense instruction is "required only if, without the instruction, the district court's instructions were erroneous or inadequate." Id. (citations omitted). The Tenth Circuit has also repeatedly held that a theory of the defense instruction is not appropriate if it contains argument or summaries of the evidence in a light favorable to the defense. See, e.g., United States v. United States v. Schuler, 458 F.3d 1148, 1156 (10th Cir. 2006); United States v. Johnston, 146 F.3d 785, 792-93 (10th Cir. 1998); United States v. Davis, 953 F.2d 1482, 1492 (10th Cir. 1992). Instruction no. Smith 31B suffers from both of these flaws. It contains argument, such as "he also contends that he should have been informed by the government early in 2002 that Capital Holdings was under investigation . . . " and "the government should have . . . allowed him to become a witness and claimant against the co-defendants, and . . . should never have charged him in the case because he was totally innocent." It also contains summaries of the evidence in the light most favorable to defendant Smith, such as "nothing in the evidence shows that he could have gained any knowledge that co-defendants Schmidt, Lewis, Beros, and Weed were acting in a false and fraudulent manner . . . ."

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12.

It appears that instruction no. Smith 31B is an improper attempt to re-state the good faith instruction proposed as instruction no. Smith 31C. Assuming that it is proper to use instruction no. Smith 31C, a further theory of the defense instruction would be unnecessary and confusing. Williams, 403 F.3d at 1195. Instruction No. Smith 31C

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This instruction is the standard O'Malley good faith instruction. "A defendant is entitled to a good faith instruction when he has interposed the defense of good faith, has requested the instruction, and when there is sufficient evidence to support it." United States v. Janusz, 135 F.3d 1319, 1322 (10th Cir. 1998). If defendant Smith adduces sufficient evidence at trial to support this instruction, the government will not oppose its inclusion with the other instructions provided to the jury. Instruction No. Smith 31D

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This instruction is the standard O'Malley advice of counsel instruction. Advice of counsel instructions are appropriate under the Janusz standard, infra; see also United States v. McIntosh, 124 F.3d 1330, 1337 (10th Cir. 1997). The government does not expect defendant Smith to be able to produce sufficient evidence at trial that he relied on the advice of attorney Gary Herbert, given that Mr. Herbert has testified that he did not know defendant Smith except that "he was referred to by Mr. Schmidt as a part of his organization," Herbert Depo. at p. 69, and that defendant Smith "certainly wasn't" his client, id. at p. 164.

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Instruction Nos. 31E and 31F 15. These instructions are Tenth Circuit pattern instructions dealing with evidence of good character and reputation for honesty. If defendant Smith introduces such evidence, the government will not object to these instructions. The government contends, however, that defendant Smith's offering of such evidence will open the door to, at a minimum, cross-examination of the appropriate witnesses concerning specific instances of conduct described in the government's previous 404(b) proffer, see Fed. R. Evid. 608(b). Respectfully submitted this 26th day of February, 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 26th day of February, 2007, I electronically filed the foregoing GOVERNMENT'S MEMORANDUM CONCERNING PROPOSED JURY INSTRUCTIONS AND VERDICT FORM 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] Ronald Gainor, Esq. [email protected]

Richard N. Stuckey, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Mitchell Baker, Esq. [email protected] Richard K. Kornfeld, 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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