Free Motion for James Hearing - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 690

Filed 03/29/2006

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IN THE UNITED STATES DISTRICT COURT F0R THE DISTRICT OF COLORADO Criminal Case No. 04-CR-103-RB UNITED STATES OF AMERICA, Plaintiff, v. 2. GEORGE ALAN WEED Defendant. ______________________________________________________________________________ DEFENDANT WEED'S RESPONSE TO GOVERNMENT'S SECOND SUPPLEMENT TO JAMES PROFFER ______________________________________________________________________________ Defendant George Alan Weed, through counsel, responds as follows to the Government's 9 March 2006 second supplement to its original James proffer. Said proffer seeks the admission at trial, under Federal Rule of Evidence 801(d)(2)(e), of an additional 33 statements made by the putative members of the alleged conspiracy that is at the heart of the Government's case in this matter. Mr. Weed is not the declarant of any of the new 33 statements, but he is the alleged recipient of two statements (#'s 342 and 354). Weed objects to the admissibility of the latter of these two statements. Statement # 354 (page 5 of Government's second supplement to its James Log) ­ The Government describes statement 354, the declarant of whom apparently was Defendant Jannice McClain Schmidt, as "I redid this letter [describing Smitty's Investments, LLC collateral guarantee insurance policy] for my investors (potential investors) as per Norm [sic] directions." (emphasis added). The Government has editorially inserted into its James log the italicized

Case 1:04-cr-00103-REB

Document 690

Filed 03/29/2006

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language in order to provide context to support the ostensible bases for admissibility of the statement under Fed. R. Evidence 801(d)(2)(e). The Government's creative insertion, however, does not stand up to scrutiny. Statement 354 was made on a single page fax cover sheet, which is attached hereto as Exhibit A. In contrast to the Government's description of the fax in the James log, the fax itself does note describe in detail what "this letter" was about. It does not mention "Smitty's Investments" or a "collateral guarantee insurance policy." The Government's James log indicates that statement 354 is contained on a single page (i.e., Bates # 209805). The fax itself, though, states that it consists of three pages. Mr. Weed's counsel has not been able to locate a three page (or two page, if the fax cover sheet counts as one of the three pages) letter in the discovery materials that is located anywhere near Bates #209806 1 the situs of the fax cover sheet. Bates #209807 is a one page 12 February 2003 letter written by Weed, but other than its appearance seriatim in discovery, there is nothing to link that letter to the fax. Accordingly, the Government's attempt to describe what "this letter" referred to should be rejected as lacking sufficient foundation. Ignoring the Government's unsubstantiated view on what "this letter" was about, there is no basis for admitting the statement. There is no proof that the fax was either sent or communicated to anyone. Even the identity of the addressee of the fax is unknown. The Government asserts in its James log that the fax was "to George Alan Weed". However, the document actually was addressed, in handwriting, either to "A1" or to "Al". The quality of the
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There is some confusion even about the Government's use of Bates numbers. The documents produced to the defense in discovery do not contain Bates numbers except as electronic "bookmarks" placed at the beginning of lengthy sets of pages, often unconnected to one another. Extrapolating from the electronic bookmark of 209788 placed at the beginning of 25 pages of materials that contain Exhibit A indicates that it was "at" Bates # 209806,

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Case 1:04-cr-00103-REB

Document 690

Filed 03/29/2006

Page 3 of 4

handwriting makes it difficult to discern which. In either event, it is unclear that Mr. Weed was the intended recipient, in the absence of any evidence that "Al" was a moniker typically applied to, or used by, Mr. Weed, and given that there is no other identifying information linking the fax to Mr. Weed, such as a fax number, phone number, or address. As such, in light of an unknown addressee, the Government's claim that this statement should be admitted, inter alia, because (code item "h" for admissibility) it is a statement that is designed to advise a co-conspirator of the progress of the conspiracy must fail. Moreover, the Government's other asserted bases for admission of Statement 354 also are inadequate. A fax document that is incomplete and that was communicated either to an unknown individual or to no one, is neither (item "a") a statement that promotes the objective(s) of the conspiracy, (item "b") a statement that reveals the existence of a conspiracy, nor (item "e") a statement that identifies a conspirator or the role of a conspirator. Accordingly, the Government has failed to proffer any legitimate reason for the admissibility of statement 354. Defendant Weed therefore moves to keep the statement out of evidence. Dated this 29th day of March, 2006. Respectfully submitted,

s/Thomas E. Goodreid Thomas E. Goodreid 1801 Broadway, Suite 1100 Denver, CO 80202 Telephone: (303) 292-0110 Fax: (303) 292-0522 E-Mail: [email protected] Attorney for Defendant George Alan Weed

vice 209805, as stated by the Government in its log. This brief therefore uses the Government's number when referring to the log and the defense's number otherwise.

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Case 1:04-cr-00103-REB

Document 690

Filed 03/29/2006

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CERTIFICATE OF SERVICE I certify that on 29 March 2006, I electronically filed the foregoing DEFENDANT WEED'S RESPONSE TO GOVERNMENT'S SECOND SUPPLEMENT TO JAMES PROFFER with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: [email protected] (Thomas J. Hammond) [email protected] (Paul B. Daiker) [email protected] (Daniel T. Smith) [email protected] (Declan Joseph O'Donnell) [email protected] (Peter R. Bornstein) [email protected] (Ronald Gainor) [email protected] (Mathew T. Kirsch) [email protected] (Wyatt B. Angelo)

s/Thomas E. Goodreid Thomas E. Goodreid 1801 Broadway, Suite 1100 Denver, CO 80202 Telephone: (303) 292-0110 Fax: (303) 292-0522 E-Mail: [email protected] Attorney for Defendant George Alan Weed

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