Free Order on Motion for Leave to File - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1151

Filed 04/26/2007

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Criminal Case No. 04-cr-00103-REB-01 UNITED STATES OF AMERICA, Plaintiff, v. 1. NORMAN SCHMIDT Defendant. _____________________________________________________________________ ORDER DENYING DEFENDANT NORMAN SCHMIDT'S MOTION FOR LEAVE TO FILE REPLY RE: MOTION FOR MISTRIAL AND STRIKING PROPOSED REPLY Blackburn, J. The matter before me is defendant Norman Schmidt's Motion For Leave To File Reply Re: Motion for Mistrial [#1136] filed April 20, 2007, at 5:08 p.m. I deny the motion and strike the concomitant Defendant Schmidt's Reply Re: Motion for Mistrial [#1137] filed April 20, 2007, at 5:10 p.m. In my Second Trial Preparation Conference Order [#720] entered April 24, 2006, I prohibited expressly the filing of a reply to a preceding response without advance leave of court. See Second Trial Preparation Conference Order [#720] at 1, n.1. My order was entered to eschew the very situation with which I am confronted now. My Second Trial Preparation Conference Order requires implicitly that a motion for leave to file a reply to a response must establish good cause warranting the reply. See Id. Beyond a naked request to file a reply, defendant fails to establish or

Case 1:04-cr-00103-REB

Document 1151

Filed 04/26/2007

Page 2 of 2

attempt to establish good cause warranting a reply. Thus, the motion is insufficient and should be denied. My Second Trial Preparation Conference Order also requires implicitly that a motion for leave to file a reply to a response must be granted before the proposed reply may be filed or presented for filing. See Id. However, contrary to my order, defendant improperly and prematurely filed or presented for filing his proposed reply within two minutes of the filing of his motion for leave to file. See Reply [#1137] filed April 25, 2007, at 5:10 p.m. Thus, the proposed reply is ultra vires and should be stricken.1 THEREFORE, IT IS ORDERED as follows: 1. That defendant Norman Schmidt's Motion For Leave To File Reply Re: Motion for Mistrial [#1136] filed April 20, 2007, IS DENIED; and 2. That Defendant Schmidt's Reply Re: Motion for Mistrial [#1137] filed April 20, 2007, IS STRICKEN. Dated April 26, 2007, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Court

Considered substantively, the proposed reply adds little. In the m ain it is a reiteration, again without circum stantiation, of defendant's initial inexplicit assertions. Counsels' pule that lack of tim e and a transcript falls on deaf ears. Counsel have had not days, weeks, or m onths, but literally years to prepare, and when presented with the pretrial opportunity for daily transcripts of the trial proceedings, they declined.

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