Free Motion for Miscellaneous Relief - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 712

Filed 04/13/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 1. NORMAN SCHMIDT,

Defendants.

MOTION FOR MODIFICATION OF COURT ORDER

Defendant, Norman Schmidt, by his court appointed counsel, Peter R. Bornstein, moves this Court for an order modifying the written Order Re: Second Supplement to James Proffer entered by this Court on April 12, 2006 (Doc. 709). As grounds in support of his motion, Defendant Schmidt states to the Court as follows: 1. This Court entered its Order Re: Second Supplement to James Proffer on

April 12, 2006. 2. Footnote 3 of that Order reads: "I further note that Schmidt's response was filed inexplicably beyond the twenty-day deadline imposed by my Second Supplemental Scheduling Order at 2, ¶ 1 [#658], filed February 7, 2006, and without a request for leave to file out of time. This is not the first time Schmidt has missed a filing deadline in this case, and I find the apparent trend disturbing." 3. Contrary to the Court's note, Schmidt's Response was filed timely and within

the twenty-day deadline. Attached to this motion is the notice of electronic filing for Document 689. That notice indicates that on 5:49 p.m. on March 29, 2006, Thomas

Case 1:04-cr-00103-REB

Document 712

Filed 04/13/2006

Page 2 of 4

Hammond filed a document entitled Motion by Norman Schmidt. In fact, the document which Thomas Hammond filed on behalf of Mr. Schmidt was the Response to the Second Supplement to the James proffer. 4. Although the filed document had the correct title, the electronic filing protocol

required Mr. Hammond to file the document a second time after the clerk's office telephoned him the next morning. Accordingly, Mr. Hammond filed Document 691, which was identical to Document 689. However, this time, the document was noticed as a Response by Norman Schmidt re: Government's Proffer filed by USA. A copy of the March 29 electronic notice is attached as Exhibit A, and the March 30 notice at 9:28 a.m. is attached as Exhibit B. 5. Because Norman Schmidt's counsel acted in good faith and within the filing

deadlines in attempting to file the proper document on March 29, 2006, it is requested that the Court remove footnote 3 from its Court order. 6. Although a request for modification is a motion and would otherwise require

a determination if opposing counsel had a position with regard to this motion, counsel has been unable to reach either Mr. Kirsch or Mr. Angelo and wishes to have this motion to modify on record immediately after receipt of the Court order with the Court's noted observation. This is done in order to correct the record and to correct any negative impressions which the Court may have as to the ability of Schmidt's counsel to timely file documents as required by Court orders in this case. Respectfully submitted this 13th day of April, 2006.

2

Case 1:04-cr-00103-REB

Document 712

Filed 04/13/2006

Page 3 of 4

THE LAW OFFICES OF PETER R. BORNSTEIN

s/ Peter R. Bornstein Peter R. Bornstein The Law Offices of Peter R. Bornstein 1600 Broadway, Suite 2300 Denver, CO 80202 Telephone: 303-861-2500 Facsimile: 303-861-0420 E-mail: [email protected] Attorney for Defendant Norman Schmidt THOMAS J. HAMMOND , P.C. s/ Thomas J. Hammond Thomas J. Hammond Thomas J. Hammond, P.C. 1544 Race Street Denver, CO 80206 Telephone: 303-321-7902 Facsimile: 303-329-5871 E-mail: [email protected] Attorney for Defendant Norman Schmidt

3

Case 1:04-cr-00103-REB

Document 712

Filed 04/13/2006

Page 4 of 4

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 13th day of April, 2006, I electronically filed the foregoing Motion for Modification of Court Order with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Matthew T. Kirsch, Esq. Wyatt B. Angelo, Esq. Assistant U.S. Attorneys [email protected] [email protected] [email protected], [email protected] [email protected] Paul B. Daiker, Esq. [email protected] [email protected] Ronald Gainor, Esq. [email protected] Thomas E. Goodreid, Esq. [email protected] Thomas J. Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected] Daniel T. Smith, Esq. [email protected] Mitchell Baker, Esq. [email protected]

s/ Heather M. Bolton Heather M. Bolton, Legal Assistant to Peter R. Bornstein

4