Free Response - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1159

Filed 04/27/2007

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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, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT NORMAN SCHMIDT'S OBJECTION TO COURT ORDER RE: GOVERNMENT'S NOTICE OF INTENT

The United States of America (the government), by and through Assistant United States Attorneys Matthew T. Kirsch and Wyatt Angelo, responds to DEFENDANT SCHMIDT'S OBJECTION TO COURT ORDER RE: GOVERNMENT'S NOTICE OF INTENT [# 1134] as follows: 1. Defendant Schmidt's Objection unfairly misrepresents the access his counsel have had to the bank records at issue in the government's 902(11) declarations. Copies of these records were first provided to the defense in June of 2004. The originals have been available for inspection by the defense since that date. As counsel for defendant Schmidt have admitted elsewhere, in 2005, they hired an investigator who reviewed the originals of the documents now at issue. See MOTION FOR LEAVE TO MAKE RECORD [# 1155], p. 1-2. On March 22, 2007, in the government's Rule 902(11) Notice [# 1061], the government again

Case 1:04-cr-00103-REB

Document 1159

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indicated that the bank records were available for defense counsel to review, by then in exactly the form in which they would be presented as exhibits at trial. Defendant Schmidt's suggestion that the government did not make these records available for review until March 30, 2007, at the time of the second pretrial conference, see OBJECTION, p. 2, flies directly in the face of these facts (as does the related suggestion that the government has admitted not making the records available until this date). Defendant Schmidt's counsel has had almost three years to review these records. It is neither the fault nor the responsibility of the government if they did not complete the process of reviewing those records before the trial began. 2. Defendant Schmidt's Objection also suggests that the declarations at issue do not establish that the witnesses who signed the declarations had sufficient personal knowledge to explain the systems of record creation and retention employed by their respective banks. The declarations track the wording of the applicable hearsay exception, Rule 803(6) of the Federal Rules of Evidence, which establishes the requisite foundation for the underlying documents' admissibility. Defendant Schmidt is apparently suggesting that some or all of the witnesses who signed these declarations did so without actually having knowledge of the information to which they were attesting, despite knowing that their declarations would be notarized and used in court. He provides nothing to support this suggestion, and it should be rejected.

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Case 1:04-cr-00103-REB

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Respectfully submitted this 27th day of April, 2007. 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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Case 1:04-cr-00103-REB

Document 1159

Filed 04/27/2007

Page 4 of 4

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 27th day of April, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT NORMAN SCHMIDT'S OBJECTION TO COURT ORDER RE: GOVERNMENT'S NOTICE OF INTENT 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]

Richard N. Stuckey, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Ronald Gainor, 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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