Free Motion for Discovery - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1398

Filed 10/16/2007

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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 LIMITED DISCOVERY RELATING TO SENTENCING HEARING

Defendant, Norman Schmidt, by his court-counsel of record, Peter R. Bornstein and Thomas J. Hammond, moves this Court for an order granting limited discovery in connection with and related to the upcoming sentencing hearing on loss calculation. As grounds in support of his motion, Defendant Schmidt states to the Court as follows: 1. 19, 2007. 2. In advance of this hearing, the government tendered to the Probation This Court has scheduled a hearing on loss calculation for Friday, October

Department for inclusion in the presentence investigation and Presentence Report certain spreadsheets of loss calculations with respect to Defendant Schmidt and others. The government also tendered to the Probation Department certain loss calculations relating to its forfeiture request. At least several hundred pages of spreadsheets were provided. Copies of these spreadsheets reflecting these loss calculations were appropriately tendered to defense counsel.

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3.

Schmidt's counsel requested from government counsel copies of the work

product that went into these loss calculations and spreadsheets. A copy of counsel's letter to government counsel is attached as Exhibit A. On October 11, 2007, Schmidt's counsel received a response denying the requested materials. The basis for this denial was government work product. A copy of the October 10, 2007 letter from Matthew T. Kirsch is attached as Exhibit B. 4. Defense counsel requests this material in order to be able to effectively cross

examine the government witnesses who will testify at the loss hearing to the government's calculation of loss numbers and forfeiture numbers. Without the ability to effectively cross examine, Defendant Schmidt's Sixth Amendment rights to effective assistance of counsel and his Fifth Amendment right to due process will be circumscribed or denied. 5. Defendant acknowledges that Rule 16(2) of the Federal Rules of Criminal

Procedure says that "except as Rule 16(a)(1) provides otherwise, this Rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other agent in connection with investigating or prosecuting the case." 6. It is Defendant Schmidt's position that the government waives this provision

when it uses its spreadsheets and work product as an exhibit at a hearing, as a submission to the Probation Department, or as the foundational basis for oral testimony by a government agent. 7. In Grace United Methodist v. City of Cheyenne, 451 F.3d 643, 668 (10th Cir.

2006), the Court of Appeals wrote that protected work product may be waived by the voluntary release of materials otherwise protected by it. The court went on to quote with 2

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approval from Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136 F.3rd 695, 704 (10th Cir. 1998) saying a litigant cannot use the work product doctrine as both a sword and shield by selectively using the privileged documents to prove a point but then invoking the privilege to prevent an opponent from challenging the assertion. Defendant Schmidt relies on civil authority because he can find no counterpart discussion in 10th Circuit law regarding Criminal Rule 16(2). 8. In this case, the spreadsheets submitted to the Probation Department, to be

used as evidence at the upcoming hearing, and providing the foundational basis for government agent testimony, is based at least in part on the material which the government refuses to allow counsel for the Defendant to see or examine. WHEREFORE, Defendant Schmidt requests that this Court enter a limited discovery order allowing his counsel to inspect the work product requested by him in his letter to government counsel, Exhibit A, attached. Respectfully submitted this 16th day of October, 2007. 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 THOMAS J. HAMMOND , P.C. s/ Thomas J. Hammond Thomas J. Hammond Thomas J. Hammond, P.C. 1544 Race Street Denver, CO 80206 Attorneys for Defendant Norman Schmidt 3

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 16th day of October, 2007, I electronically filed the foregoing MOTION FOR LIMITED DISCOVERY RELATING TO SENTENCING HEARING 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] Ronald Gainor, Esq. [email protected] Thomas E. Goodreid, Esq. [email protected] Thomas J. Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected] Mitchell Baker, Esq. [email protected] Richard K. Kornfeld [email protected] Richard N. Stuckey [email protected]

s/ Heather M. Bolton Heather M. Bolton

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