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

Case 1:04-cr-00103-REB

Document 1109

Filed 04/09/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. NORMAN SCHMIDT, GEORGE WEED, CHARLES LEWIS, and MICHAEL SMITH, Defendants. NORMAN SCHMIDT'S OBJECTION TO GOVERNMENT'S DECLARATIONS PURPORTED TO BE OFFERED PURSUANT TO RULE 902(11) OF THE FEDERAL RULES OF EVIDENCE

COMES NOW Defendant Norman Schmidt, by and through his attorneys, Peter R. Bornstein and Thomas J. Hammond, and objects to the government's declarations purported to be offered, as part of the foundation for numerous listed exhibits described as business records, pursuant to Rule 902(11) of the Federal Rules of Evidence. Mr. Schmidt objects to the introduction of exhibits through the written declaration process under Rule 902(11) of the Federal Rules of Evidence as opposed to the requirement of a live witness to lay the predicate under the business records exception to hearsay. As grounds, Ms. Schmidt states the following: 1. The government provided the declarations and related documents to the

defense on March 22, 2007. Attachment 1061-2 is an exhibit list describing the documents that relate to each declaration. The Bates numbers related to the exhibits 1

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number several thousand pages. 2. There are twenty six declarations offered. The government notice was

provided eight business days before the start of the trial. This notice was insufficient and there was no practical and reasonable time to go to the U.S. Attorney's office to inspect the records being offered, nor was there time to try to locate the declarants and conduct telephone interviews with them. 3. The following declarants did not provide their job duties and

responsibilities, and their titles do not reflect a job that makes them suitable to authenticate business records under Rule 803(6): Lisa Tennyson (Financial Crimes Investigator), Lesa Moore (Subpoena Processor), Francisco Valerio (Employee subpoena processing department), Stacy Ebert (Security Officer), Shauna Raab (Compliance Supervisor), Carmen Perez (Manager - subpoena and garnishment unit), Barbara Yeargan (Operations Officer), Denise Gage (Supervisor Court Order Processing), Adriana Sobarnia (no job title), Michael Watson (no job title), Tammy Cornish (no job title), Thomas Herity (Compliance Director), Pamela Stahly (Teller Supervisor), Douglas Burnett (Resident Manager) and Michelle McGuire (Vice President & Assistant General Counsel. It appears that more than half of the persons listed as declarants may be people who cannot in fact attest to personal knowledge of the documents. 4. Two of the declarations provided to Mr. Schmidt have not been executed

(document 1061-3 and document 1061-10). A third declaration has not been executed and has been stamped with the word "SAMPLE" on each page of the purported document (document 1061-13). At this time, none of the three aforementioned 2

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declarations are in compliance with the requirements of Rule 902 (11). 5. It should be noted that the actual exhibits that underlie the declarations

have not been provided to any of the defendants in an exhibit form. Therefore, counsel must conduct a review of the underlying records by way of a time consuming electronic search of the discovery. 6. A very cursory review of the underlying documents suggest that many of

the documents are not relevant. For example, Derry Williams is the declarant for the National Commercial Bank (SVG) Limited, located in Kingstown in Saint Vincent and the Grenadines. A review of the underlying documents shows that the documents relate to a company entitled Yansy LTD (or Yasny LTD as both names appear in the documents). The documents further indicate that there are transactions between Yasny LTD and Argon Limited. Evidence concerning Argon has been ruled to be irrelevant in earlier trial rulings by this Court. 7. The declarations of three foreign declarants, Sabrina C. A. Neehall, Gail

Diamond, and Derry Williams, do not meet the requirements of Rule 902(12) of the Federal Rules of Evidence insofar as the attestation is not "signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed." 8. When the declarant says that the records were produced pursuant to a

subpoena, not only are the records not attached (available for inspection only) , but neither is the subpoena. We are unable to know if this means a trial subpoena or a grand jury subpoena issued between 4 and 6 years ago. References to Bates numbers put on the document by the government does not mean that the declarant is certifying 3

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that he or she examined the documents after the Bates number was applied. 9. Mr. Schmidt has not had sufficient opportunity to challenge the underlying

documents pursuant to either Rule 902(11) or (12), due to the sheer volume of the documents. 10. Counsel for Mr. Schmidt request an opportunity to make a further record

on this issue following receipt of any responsive pleading by the government. Respectfully submitted, s/ Peter R. Bornstein Peter R. Bornstein The Law Offices of Peter R. Bornstein 1600 Broadway, Suite 2350 Denver, Colorado 80202 (303)861-2500 Fax: (303)861-0240 E-mail: [email protected]

s/ Thomas J. Hammond Thomas J. Hammond Thomas J. Hammond, PC (303)321-7902 Fax: (303)329-5871 E-mail: [email protected]

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing NORMAN SCHMIDT'S OBJECTION TO GOVERNMENT'S DECLARATIONS PURPORTED TO BE OFFERED PURSUANT TO RULE 902(11) OF THE FEDERAL RULES OF EVIDENCE with the Clerk of the Court using the CM/ECF system which will send notification to he following email addresses this 9th day of April, 2007. Matthew Kirsch, Esq. [email protected]

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Wyatt Angelo, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Declan O'Donnell, Esq. [email protected] Richard Stuckey, Esq. [email protected] Ronald Gainor, Esq. [email protected] s/ Thomas J. Hammond Thomas J. Hammond

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