Free Motion for Mistrial - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 1. NORMAN SCHMIDT,

Defendant. _________________________________________________________________ DEFENDANT NORMAN SCHMIDT'S MOTION FOR MISTRIAL _________________________________________________________________ Defendant, Norman Schmidt, by and through his attorneys, Peter R. Bornstein and Thomas J. Hammond, Defendant Norman Schmidt, moves for a mistrial in this case. As grounds, Mr. Schmidt states the following: 1. At the end of court on Thursday, April 12, 2007, counsel requested

permission to make a record on behalf of Mr. Schmidt. The Court requested that the record be made in writing. 2. Mr. Schmidt's right to a fair trial and due process of law have been

irreparably compromised by the actions of the government in connection with its introduction of co-conspirator statements. This motion further implicates Mr. Schmidt's constitutional right to confront witnesses against him and to cross examine those witnesses concerning any statements they made out of court. 3. By way of procedural background, this motion is made within the context of

the protocol used by this Court to determine which alleged co-conspirator statements 1

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meets the three prong test for admissibility pursuant to Fed.R. Evid. 801(d)(2)(E). United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007). Mr. Schmidt moved for a James hearing at which every potential conspirator statement could be scrutinized and a pre-trial determination regarding the admissibility of such statements could be made pursuant to Fed.R. Evid. 104(a). 4. The Court declined to hold a hearing, but devised an alternate approach

which required the government to submit a James proffer and a James log containing the statements, declarants, sources, date, and context, among other requirements. The government submitted a total of three such proffers totaling over 350 statements, and Mr. Schmidt's counsel submitted objections. Thereafter, the Court issued a series of rulings, allowing many and rejecting a substantial number of proffered statements. This order became the law of the case. 5. Mr. Schmidt assumed that the government would abide by the protocol and

the Court's orders, and limit its attempts to admit conspirator statements to those which had been approved by the Court. Counsel for Mr. Schmidt believed that the government had provided notice of which statements the government would seek to have admitted at trial. This assumption has proved wrong. 6. This notice was ignored by the government. The government has engaged

in trial by ambush. During the trial testimony of Gary Bell, Gordon Hulbert, Mary Anne Gough, Cynthia Lange, and Wendy Delaney (and perhaps more witnesses) statements were offered against Norman Schmidt which were made by Leon Harte, Rebecca Taylor, Charles Lewis, George Alan Weed, John Schlabach and Michael Smith. In some cases contemporaneous objections were made which were overruled with references to Rule 2

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801(d)(2)(E) and the pre-trial James ruling. 7. The defense has recently checked the pre-trial pleadings and determined that

none of these witnesses were listed as declarants or sources pursuant to the government's James proffer and log, and hence, none of these statements were subjected to the pre-trial order of this Court. Therefore, Mr. Schmidt's right to a fair trial and one consistent with constitutional due process has been violated. 8. Mr. Schmidt has considered asking for alternative forms of relief, but none

seem to remove the effect of the unfair tactical maneuver of the prosecution that has already occurred. Hence, Norman Schmidt asks for a mistrial. 9. Mr. Schmidt further asserts that the government's tactics bring into play the

Confrontation Clause and the decision of Crawford v. Washington, 541 U.S. 36 (2004). Mr. Schmidt makes this argument despite the holdings in United States v. Summers, 414 F.3d 1287 (10th Cir. 2005) and Townley, id. 10. In the event that this Court denies the motion for mistrial, Mr. Schmidt moves

for an alternate remedy. 11. Mr. Schmidt recognizes that the government has reserved the right to

introduce statements under alternate theories, such as the agency theory provided in Rule 801(d)(2)(D) of the Federal rules of Evidence. 12. The introduction of the statements raises an issue concerning the appropriate

objection. When Mr. Schmidt properly raises an objection that the statement is hearsay, and not covered by the government's James Proffer or the Court's Order regarding the James Proffer, the government has responded that the statement is sought to be

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introduced pursuant to FRE Rule 801(d)(2)(D), which creates an exception to the general rule prohibiting the introduction of hearsay. Under Rule 801(d)(2)(D), a statement may be admitted into evidence as non-hearsay if it is "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the course of the relationship. 13. The government introduced such statements into the trial on the above

described theory on Thursday afternoon. However, the government has not met the conditions precedent for the admission of such statements, namely, that an agency or servant relationship existed, or who the parties were to the alleged agency or servant relationship. For example, statements allegedly made by Mike Smith and Charles Lewis to Wendy Delaney were admitted pursuant to FRE 801(d)(2)(D). However, there was no evidence that established an agency or servant relationship between Smith and Charles Lewis although his name was mentioned. Even assuming, arguendo, that an agency or servant relationship was somehow established between Mr. Lewis and Mr. Smith, there has been no evidence that such relationship extended to the LLC or to Mr. Schmidt. In fact, there has been no evidence of exactly what relationship each had to Smitty's, LLC or Capital Holdings, LLC or Summit, LLC let alone that one was legally its or his agent or servant. 14. There record, however, is currently in a state that suggests that the

government has proven an agency relationship between Mr. Smith, the companies, Mr. Lewis, Mr. Weed and Mr. Schmidt apparently through Delaney's testimony. This is precisely the harm that the hearsay rules were written and designed to prevent. 15 When the parties to an agency or servant relationship do not include Mr. 4

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Schmidt, then Mr. Schmidt has a proper objection that the statement is inadmissible as to him or that it isn't evidence against him. If the statement is admissible as to another defendant, then Mr. Schmidt requests that the Court give the jury a limiting instruction that informs the jury that the statement does not pertain in any manner to Mr. Schmidt and should not be considered as a statement of an alleged co-conspirator and is therefore not admissible as evidence against him. WHEREFORE, Mr. Schmidt moves for a mistrial in this case. If the Court denies this motion, Mr. Schmidt moves for the alternate relief described herein.

Respectfully submitted,

s/ Peter R. Bornstein Peter R.Bornstein The Law Offices of Peter R. Bornstein 1600 Broadway, Suite 2300 Denver, Colorado 80202 (303)861-2500 Fax: (303)861-0420 E-mail: [email protected] Attorney for Norman Schmidt

s/ Thomas J. Hammond Thomas J. Hammond Thomas J. Hammond, P.C. 1544 Race Street Denver, Colorado 80206 telephone: (303)321-7902 fax: (303)329-5871 e-mail: [email protected] Attorney for Norman Schmidt

CERTIFICATE OF SERVICE (CM/ECF) 5

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I hereby certify that on April 16, 2007, I electronically filed the foregoing DEFENDANT NORMAN SCHMIDT'S MOTION FOR MISTRIAL with the Clerk of the Court using the CM/ECF filing system which will send notification of such filing to the following e-mail addresses:

Wyatt Angelo, Esq. [email protected] Matthew Kirsch, Esq. [email protected] Peter R. Bornstein, Esq. [email protected] Ronald Gainor, Esq. [email protected] Thomas E. Goodreid, Esq. [email protected] Richard Stuckey, Esq. [email protected] Declan O'Donnell, Esq. [email protected]

s/ Thomas J. Hammond

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