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

Case 1:04-cr-00103-REB

Document 1135

Filed 04/20/2007

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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 ACCESS TO GOVERNMENT FINANCIAL DATABASE

Defendant, Norman Schmidt, by his counsel of record, Peter R. Bornstein and Thomas J. Hammond, moves this Court for an Order requiring the government to provide defense access to the financial database and queries made of that database as those are germane to and pertain to the summary exhibits and summary testimony which the government intends to offer through IRS Agent Wayne Stockley, towards the tail end of the prosecution case in chief. As grounds in support of his Motion, Defendant Schmidt states to the Court as follows: 1. On March 22, 2007, 10 days before the start of the trial, counsel for the

government sent by Federal Express revised versions of the summary charts relating to the money laundering counts (Exhibits 9500A-9514B) and additional summary charts documenting the withdrawals from the "non-depleting" accounts which benefitted the charged conspirators or their immediate family members (Exhibits 9600-9608). The government also provided backup spreadsheets or charts which they claim support each

Case 1:04-cr-00103-REB

Document 1135

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of the summary exhibits. It is further anticipated that IRS Agent Stockley will testify in depth regarding the summaries that he has prepared from the voluminous bank records, which now occupy 16 boxes of exhibits on the wall of the courtroom. 2. IRS Agent Stockley, with the assistance of others, prepared a financial He then made

database using the software program known as Microsoft Access.

computer queries of this database in order to prepare spreadsheets or charts which comprise the backup material. From the spreadsheet charts, he prepared the summary exhibits. 3. Counsel for Defendant Schmidt cannot adequately review the summary

exhibits to determine their accuracy, completeness and fairness without access to the underlying source material used by IRS Agent Stockley in their preparation. This source material is his financial database. 4. Counsel has asked AUSA Kirsch for access to this database and to the

queries made to the database in connection with the preparation of summary exhibits. Counsel cited the requirements of Fed.R.Evid. 1006, which provides that summaries may be used in lieu of voluminous documents. The AUSA's position is to object to the access to the database on the grounds of work product protection. Defendant asserts that work product loses its protection when a witness will rely on it for his summaries and related testimony. 5. Further, demonstrative exhibits, such as summary charts, are subject to the

general authority of the Court to control the orderly flow and presentation of evidence before the jury. Since fairness in administration or the Rules of Evidence is part and parcel of the Rules, fundamental due process requires the opponent of financial summaries and 2

Case 1:04-cr-00103-REB

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financial charts to have reasonable access to the underlying data from which those summaries and charts were prepared. Fed.R.Evid. 102 and 1008; United States v. Downen, 496 F.2d 314, 320 (10th Cir. 1974); Conford v. United States, 336 F.2d 285, 287 (10th Cir. 1964). 6. In this instance, the defense requests access to the financial database and

to the queries asked of this software in order to determine the reliability, accuracy and fairness of the proffered exhibits. 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

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Case 1:04-cr-00103-REB

Document 1135

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 20th day of April, 2007, I electronically filed the foregoing Motion for Access to Government Financial Database 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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