Free Response in Opposition - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1030

Filed 03/01/2007

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No 04-cr-00103-REB UNITED STATES OF AMERICA Plaintiff, v. 1. NORMAN SCHMIDT, Defendant. _____________________________________________________________________ GOVERNMENT'S RESPONSE TO DEFENDANT NORMAN SCHMIDT'S MOTIONS FOR LEAVE TO FILE MOTION FOR SEVERANCE AND FOR SEVERANCE _____________________________________________________________________ The United States (the government), by Wyatt Angelo and Matthew T. Kirsch, the undersigned Assistant United States Attorneys, opposes defendant Norman Schmidt's Motion for Leave to File Motion for Severance [# 1025] and Motion for Severance [# 1026] for the reasons set forth below. The Motions Are Untimely 1. The Court's initial Scheduling Order [# 96] required that all motions to sever be filed not later than November 30, 2004. After the Second Superseding Indictment was filed, the Court issued a Supplemental Scheduling Order [# 584] which contained a new deadline of February 6, 2006, for motions to sever based on the new indictment. 2. Defendant Schmidt suggests, in his Motion for Leave to File Motion for Severance [#1025], that the possibility of allegedly antagonistic defenses on which his motion rests has only arisen "as trial nears and conferences have been

Case 1:04-cr-00103-REB

Document 1030

Filed 03/01/2007

Page 2 of 7

held with counsel for the other Defendants." This suggestion has no merit. From the inception of this case, the government has made discovery before and well beyond what the law requires. In keeping with that practice, in April 2004, the government provided discovery materials which included statements by defendants Weed and Smith in which they suggested that they had done nothing wrong and that their actions at issue in the indictment were based on representations made by defendant Schmidt. The grounds for this motion therefore should have been obvious to defendant Schmidt well before the original filing deadline for motions to sever, and he provides no reason for the Court to consider his motion over two years (or, at best, one year) after it was due. For that reason, the Court should deny his Motion for Leave to File Motion for Severance. Defendant Schmidt Has Made No Showing of Mutually Antagonistic Defenses 3. Defendants are properly joined in the same indictment "if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Fed. R. Crim. P. 8(b). In this case, there is no question that defendant Schmidt is properly joined with the other defendants because all are alleged to have participated in the same series of acts or transactions constituting the charged conspiracy and the substantive offenses. 4. Rule 14 of the Federal Rules of Criminal Procedure allows a court, based upon a showing of prejudice, to "order an election or separate trials of counts, grant a

2

Case 1:04-cr-00103-REB

Document 1030

Filed 03/01/2007

Page 3 of 7

severance of defendants or provide whatever other relief justice requires." Fed. R. Crim. P. 14 (emphasis added). Defendants who are properly joined under Rule 8(b) ordinarily should be tried together. See United States v. Yazzie, 188 F.3d 1178, 1194 (10th Cir. 1999); accord United States v. Warner, 971 F.2d 1189, 1196 (6th Cir. 1992) (collecting cases from various circuits). This preference is particularly strong when codefendants are indicted in the same conspiracy. United States v. Iiland, 254 F.3d 1264, 1269-70 (10th Cir. 2001). "There is a preference in the federal system for joint trials of defendants who are indicted together. Joint trials `play a vital role in the criminal justice system.'" Zafiro v. United States, 506 U.S. 534, 537 (1993), quoting Richardson v. Marsh, 481 U.S. 200, 209 (1987). 5. A properly joined defendant carries the burden of establishing unlawful prejudice sufficient to support a motion for severance under Rule 14 of the Federal Rules of Criminal Procedure. United States v. Price, 265 F.3d 1097, 1105 (10th Cir. 2001), cert. denied, 535 U.S. 1099 (2002). A defendant moving for severance must prove not only prejudice, but such strong prejudice that severance is the only remedy. Zafiro, 506 U.S. at 538-539. Even upon a showing of prejudice, a trial court should first try to fashion another form of relief. Id. A measure less drastic than a separate trial, such as a limiting instruction, often will suffice to cure any potential risk of prejudice. Id. A severance should be granted only if there is a serious risk that a joint trial would compromise a specific trial right of a defendant or prevent the jury from making a reliable judgment about guilt or

3

Case 1:04-cr-00103-REB

Document 1030

Filed 03/01/2007

Page 4 of 7

innocence. United States v. Morales, 108 F.3d 1213, 1219 (10th Cir. 1997), citing Zafiro, 506 U.S. at 539. A defendant must show "more than a better chance of acquittal or a hypothesis of prejudice, he must, in fact, show real prejudice." United States v. Youngpeter, 986 F.2d 349, 353 (10th Cir. 1993) (citation omitted). 6. Where a severance motion is based on a claim of antagonistic defenses, a defendant's mere claim that his defense will conflict with the defense of a codefendant is insufficient to support severance. United States v. McClure, 734 F.2d 484, 488 (10th Cir. 1984). Nor is "one defendant's attempt to cast blame on the other" itself sufficient to support severance. Id. Instead, defenses must be "irreconcilable and mutually exclusive" to support severance. Id. Defenses meet this standard if "the acceptance of one party's defense would tend to preclude the acquittal of the other. Conversely, such a showing would seemingly require that the guilt of one defendant tends to establish the innocence of the other." Id. at 488 n.1. 7. Defendant Schmidt fails completely to make a showing that would support his request for severance. To begin with, his motion says nothing about what his defense will be, only that he does not intend to testify. He provides no facts that would allow the Court to engage in the analysis required to justify severance. The only fact which is provided, that defendants Smith, Weed, or both may testify and implicate defendant Schmidt, is insufficient to support severance. Id. at 488.

4

Case 1:04-cr-00103-REB

Document 1030

Filed 03/01/2007

Page 5 of 7

DeLuna Is Not Good Law in the Tenth Circuit 8. The primary basis for defendant Schmidt's motion is DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962), which suggests that if defendants Smith or Weed testify, their attorneys will have a duty to their clients that requires them to comment on defendant Schmidt's expected failure to testify. Defendant Schmidt claims that Court will be required to grant a mistrial once other defense attorneys, abiding by the duty suggested in DeLuna, make these comments on his silence. 9. Defendant Schmidt represents that "[w]hile the Tenth Circuit has not dealt with a case on point with the facts in the DeLuna case, it has recognized the principle and the rationale behind the case." This statement is inaccurate. In McClure, the Tenth Circuit unequivocally rejected DeLuna's principle and rationale: We reject the dictum of the DeLuna majority and today hold that under no circumstances can it be said that a defendant's attorney is obligated to comment upon a codefendant's failure to testify. 734 F.2d at 491; see also United States v. Espinosa, 771 F.2d 1382, 1409 n.35 (10th Cir. 1985) (noting McClure's rejection of DeLuna). As the Tenth Circuit sensibly explained, a defense attorney can have no duty to comment on an invocation of silence because such an invocation has no probative value. McClure, 734 F.2d at 491. Even Kolod v. United States, 371 F.2d 983 (10th Cir. 1967), overruled on other grounds, 390 U.S. 136 (1968), one of the opinions which defendant Schmidt says recognized the principle of DeLuna and contained implicit warnings to counsel, criticized the scope of the dicta in

5

Case 1:04-cr-00103-REB

Document 1030

Filed 03/01/2007

Page 6 of 7

DeLuna and held that the right of a testifying defendant to comment on the failure of a codefendant to testify is not absolute. 371 F.2d at 991. Conclusion 10. Defendant Schmidt has provided neither a factual nor a legal basis for his claim that he and other codefendants will have mutually exclusive defenses. The duty which defendant Schmidt claims will cause his codefendants' attorneys to engage in conduct which could require a mistrial does not exist. The government is confident that the remaining defense counsel, all of whom are experienced and highly competent, will not improperly comment on defendant Schmidt's silence if he chooses not to testify at trial. THEREFORE, the government respectfully requests that defendant Schmidt's Motion for Leave to File for Motion for Severance [# 1025] and his Motion for Severance [# 1026] be denied. Respectfully submitted this 1st day of March, 2007. TROY A. EID United States Attorney

s/ Matthew T. Kirsch MATTHEW T. KIRSCH WYATT ANGELO Assistant U.S. Attorneys 1225 17th Street, Suite 700 Denver, CO 80202 Telephone 303-454-0100 Facsimile 303-454-0402 Email: [email protected] [email protected]

6

Case 1:04-cr-00103-REB

Document 1030

Filed 03/01/2007

Page 7 of 7

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 1st day of March, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT NORMAN SCHMIDT'S MOTIONS FOR LEAVE TO FILE MOTION FOR SEVERANCE AND FOR SEVERANCE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Peter Bornstein, Esq. [email protected] Thomas Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected] Ronald Gainor, Esq. [email protected] Richard N. Stuckey, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Mitchell Baker, Esq. [email protected] Richard K. Kornfeld, Esq. [email protected]

s/Matthew T. Kirsch Matthew T. Kirsch Assistant United States Attorney 1225 17th Street, 7th Floor Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 Email: [email protected]

7