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

Case 1:04-cr-00103-REB

Document 1155

Filed 04/26/2007

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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 LEAVE TO MAKE A RECORD

Defendant, Norman Schmidt, by his counsel of record, Peter R. Bornstein and Thomas J. Hammond, moves for leave of Court to make a record with respect to the Court's Order Denying Motion for Access to Government Financial Database (Doc. #1148). On April 25, 2007 the Court denied Schmidt's motion (Doc. # 1135) without giving the defendant an opportunity to file a reply to the government's objection to the defense motion. Hence, this request to make a record. In both the government objection and in the Court Order there are references to the fact that bank record documents have been available to the defendants since June of 2004. Because these records were available to the defense for nearly three years, the court (and government) concludes that no due process rights are implicated in the defense motion. In 2005, counsel for Schmidt hired an investigator to make a thorough

examination of the bank records. He went to the FBI office and reviewed bank records under the supervision of Case Agent Hahn. He spent several days at the FBI office in

Case 1:04-cr-00103-REB

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Denver. The investigator reported back that the records were disorganized and in a state of disarray. As a result he couldn't verify basic government assertions about the amount of funds taken in, the amount of disbursements, the disposition of the funds, their movement in and out of accounts and other important financial questions to this case. Counsel personally went over to the FBI to verify what the investigator was saying. Counsel then had the investigator utilize an assistant to attempt to create a financial data base out of the raw bank records. Many days at the FBI office and hundreds of man hours were spent in this endeavor which were paid out of CJA funds. Severe problems were encountered, so counsel employed the services of a CPA to assist the investigator in the data base project. However, the end result was a failure. Whether this failure was due to the software being used, the skills of the investigator or other reasons is not fully known. What is known is that the defense was unable to make heads or tails conclusions from the raw bank records. The defense also knew at that point in 2005 that the prosecution had no data base of its own and was in no better shape to draw accurate conclusions from the bank records. All this defense effort was put forth well in advance of trial. During the long delay periods following the first trial continuance, the government spent its considerable and superior resources to create a financial data base, and then to employ IRS Agent Stockley to use that data base to make sense out of chaos. They took advantage of the procedural rules to wait until the last minute to reveal the existence of summary charts for the financial records. They took advantage of the fact that exhibits were not listed and available to the defense until the final trial preparation conference. They achieved a tactical advantage

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which they defend under the rubric of "work product." The defense cried "foul" and asked for relief by this Court. This relief has been denied. This record, if leave is granted, is also germane to the other Court Orders regarding the way the government seeks to introduce the bank records into the case. Respectfully submitted this 26th day of April, 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 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

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Case 1:04-cr-00103-REB

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 26th day of April, 2007, I electronically filed the foregoing Motion for Leave to Make A Record 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, Legal Assistant to Peter R. Bornstein

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