Free Response - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1330

Filed 07/20/2007

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IN THE UNITED STATES DISTRICT FOR THE DISTRICT OF COLORADO CASE NO. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 1. NORMAN SCHMIDT,

Defendant. _____________________________________________________________________ DEFENDANT NORMAN SCHMIDT'S RESPONSE TO GOVERNMENT'S SENTENCING STATEMENT ____________________________________________________________________ COMES NOW Counsel for the Defendant Norman Schmidt, Peter R. Bornstein and Thomas J. Hammond, and responds to the sentencing statement flied by the government . 1. The government has indicated that the guideline calculations used in its

sentencing statement are taken from the 2002 United States Sentencing Guidelines Manual. The government has proceeded with the 2002 Guidelines "in order to avoid ex post facto issues." Page 19, Government Sentencing Statement. 2. Mr. Schmidt agrees with the government that the parties should avoid ex post

facto issues. In order to avoid ex post facto issues altogether, Mr. Schmidt believes that the proper guideline calculation begins with analysis under the Guideline Manual in effect at the time of the beginning of the charged conspiracy, namely 1999. To the extent that future Guideline Manual applications contain significantly more harsh guideline calculations, Mr. Schmidt intends to file objections. 1

Case 1:04-cr-00103-REB

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3.

Mr. Schmidt does not agree with the government's calculation of loss, separate

and apart from which version of the United States Sentencing Guideline Manual may be applicable to this case. Mr. Schmidt asserts that the government has not met its burden of proof to establish an accurate loss calculation. Under one summary alone, Bates pages 8000255-8000296, there are references to 1,241 individuals or entities, yet there is only a handful of the persons included in that number who actually testified at Mr. Schmidt's trial. The same summary includes entities that are or were associated with other defendants and some entities there were or are associated with persons previously described as unindicted co-conspirators. It should be noted that Mr. Schmidt objects to all summary exhibits and all other documents that were either alluded to or introduced during trial, in which live witnesses did not testify as alleged victims, or as the appropriate person for foundation in this case. Similarly, Mr. Schmidt objects to the use of summary exhibits and documents at sentencing, which purport to be accurate calculations of loss. The government's calculation of loss, embodied in its sentencing statement, raises proof issues and due process issues under Booker v. United States 543 U.S. 220 (2005). 4. Mr. Schmidt does not agree that the loss calculations have been made correctly

or accurately. There is no document or even series of documents that have been presented which itemize and accurately detail the history of anyone's money from the time of deposit to the time that the funds were seized and redistributed. It is Mr. Schmidt's position that the probation department should conduct its own objective analysis to arrive at an accurate calculation of loss in this case. 5. Mr. Schmidt also intends to object to any enhancements the government pursues 2

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under Chapter 3 of the Guidelines, including but not limited to the leader/organizer and position of trust enhancements.. 6. Mr. Schmidt will present argument under 18 USC 3553, regarding his age,

health, life expectancy, and his life outside this indictment at the sentencing hearing.

Respectfully submitted,

s/Thomas J. Hammond Thomas J. Hammond Thomas J. Hammond, PC 1544 Race Street Denver, Colorado 80206 303)321-7902 Fax: (303)329-5871 Email: [email protected]

s/Peter R. Bornstein Peter R. Bornstein The Law Offices of Peter R. Bornstein 1600 Broadway, Suite 2350 Denver, Colorado 80202 (303)861-2500 Fax: (303)861-0420 E-mail: [email protected]

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CERTIFICATE OF SERVICE I hereby certify that on July 20, 2007, I electronically filed the foregoing DEFENDANT NORMAN SCHMIDT'S RESPONSE TO GOVERNMENT'S SENTENCING STATEMENT with the Clerk of the Court using the CM/ECF filing system which will send notification of such filing to the following e-mail addresses: Wyatt Burwell Angelo [email protected], [email protected] ; Matthew Kirsch [email protected]

[email protected]; [email protected] Peter R. Bornstein [email protected], [email protected] Ronald Gainor [email protected] Thomas Edward Goodreid [email protected] Declan Joseph O'Donnell [email protected] Richard Stuckey [email protected]

s/ Thomas J. Hammond Thomas J. Hammond

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