Free Objection (Other) - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1134

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.

DEFENDANT SCHMIDT'S OBJECTION TO COURT ORDER RE: GOVERNMENT'S NOTICE OF INTENT (DOC. 1112)

Defendant, Norman Schmidt, by his counsel of record, Peter R. Bornstein and Thomas J. Hammond, submits his objection to the Order entered by this Court on April 16, 2007 (Doc. 1122) entitled Order Re: Government's Notice of Intent to Offer Evidence Pursuant to Rules 803(6) and 902(11) of the Federal Rules of Evidence. In particular, the Defendant objects to the Court's denial of Defendant Schmidt's request to make a further record (¶4). After the government filed its Response to Defendant Schmidt's objections, on April 11, 2007, Defendant's counsel had an opportunity to inspect the government's proposed bank records prior to the publishing of this Court's Order. On the north wall of the courtroom sits 16 boxes filled with bank records that comprise the bank record exhibits, which the government proposes to enter as evidence in the case. Defendant Schmidt had objected and complained to inadequate time to inspect the bank records before their proposed admission into evidence in the case. On that day, the Court took a recess

Case 1:04-cr-00103-REB

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because of a problem with a juror and adjourned the morning session of the trial to reconvene in the afternoon. Defense counsel took that opportunity to make an inspection of the bank records. Sixteen boxes of bank records contains approximately 2,500 pages per box, or a total of 40,000 pages. Counsel asked to inspect 2 exhibits, 9330 and 9010. Exhibit 9330 are important exhibits from the Wells Fargo banking records for Smitty's account. This exhibit comprises 9 expandable folders. It took counsel approximately 1 hour to review one of the 9 folders. The second exhibit looked at was 9010 which is from the Reserve Foundation Trust account in the Caribbean bank. It took approximately ½ hour to review this exhibit. A full review of the proposed exhibits would take several days. The 16 boxes of bank records were not available for review according to the Government's Response (¶3) until the Second Pretrial Conference on March 30, 2007, just before the start of the trial. Counsel estimates, based on the review of 2 folders in 2 exhibits that a complete review would take at least 20 hours of counsel time. This is time taken away from other important trial preparation activities. Put simply, fairness should have required that these exhibits be made available substantially before the eve of trial so that a meaningful review by opposing counsel was possible. Since the Court Order specifically said in the order that it did "approve, adopt, and incorporate the reasons stated, arguments advanced, and authorities cited by the government in its thoughtful and comprehensive response," this Objection also includes the reference by the government in its argument that custodians of records and declarants need not have personal knowledge of the creation of the records at issue or even of the identity of the person who created those records. That argument missed the point made 2

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by Defendant Schmidt in ¶3 of the Objection (Doc. 1109). Even though a qualified person is given a very broad interpretation, the witness must have enough familiarity with the record-keeping system of the business in question, here the banks, to explain how the record came into existence in the ordinary course of business and to explain the retention system and how that system adequately maintains the integrity of the bank records. 5 Weinstein's Federal Evidence §803.08(8). The declarations at issue fail to address this level of personal knowledge. Had Defendant Schmidt's counsel been allowed to make a further record after reading the government's response, he would have included these points and some others before the Court ruled. 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 3

Case 1:04-cr-00103-REB

Document 1134

Filed 04/20/2007

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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 Defendant Schmidt's Objection to Court Order Re: Government's Notice of Intent (Doc. 1112) 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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