Free Reply to Response - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1137

Filed 04/20/2007

Page 1 of 3

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.

DEFENDANT SCHMIDT'S REPLY RE: MOTION FOR MISTRIAL

Defendant, Norman Schmidt, by his counsel of record, Peter R. Bornstein and Thomas J. Hammond, submits his Reply to the government's Response Re: Motion for Mistrial. The government's Response, in ¶5, either misunderstands or misstates Schmidt's positions with respect to whether or not agency has been established. It has not. Based on civil law concepts of agency, when entities such as Smitty's Investments, LLC; Capital Holdings, LLC; and Reserve Foundation Trust are involved, the business CEO is not in an agency relationship with all affiliates, their employees and their agents. Furthermore, as to several relatively minor players in this trial, the government's evidence so far falls far short of agency with respect to Mr. Schmidt. Consequently, the government's assertion that the Defendant has conceded this point is wrong. In ¶4 of the government's Response, the government says that "the majority of, if not all of the statement from the other co-conspirators identified in the Motion were not

Case 1:04-cr-00103-REB

Document 1137

Filed 04/20/2007

Page 2 of 3

offered for the truth of the matter, but for other purposes." The defense accepts this position advanced by the government, but insists that it was ambushed by the position in light of the significant time, energy and costs associated with the pretrial examination of proffered statements pursuant to the James doctrine and concommitant objections made thereto. Moreover, time constraints are the only reason why counsel prepared the Motion without being able to fully set forth each and every specific item of evidence or statement to which the Motion is directed (Government Response ¶3). Counsel does not have a transcript of the trial testimony and can only work, at this stage, from notes and memory and at night and during non-trial days and weekends in conjunction with the myriad other aspects of preparation done in the middle of this trial. Respectfully submitted this 20th 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 2

Case 1:04-cr-00103-REB

Document 1137

Filed 04/20/2007

Page 3 of 3

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 20th day of April, 2007, I electronically filed the foregoing Defendant Schmidt's Reply Re: Motion for Mistrial 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

3