Free Notice (Other) - 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

Civil Action No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 1. NORMAN SCHMIDT,

Defendants.

NOTICE OF OBJECTION TO DEFENSE PRETRIAL DISCLOSURE OF WITNESSES

Defendant, Norman Schmidt, by his counsel of record, Peter R. Bornstein and Thomas J. Hammond, hereby submits to the Court his objection to the defense pretrial disclosure of witnesses. 1. Pursuant to this Court's Second Trial Preparation Conference Order (Doc.

720), paragraph 6, the Defendant is required to submit at the first pretrial conference scheduled for March 2, 2007, a witness list providing a "will call" witness list with names and addresses and a "may call" witness list with names and addresses. The prosecution will tender its list at that conference. 2. There are certainly cases where the defense can, in good conscience,

provide a list of potential witnesses to the Court and the government. This is not such a case. 3. The defense does not intend to willfully ignore or fail to respond to a Court

discovery order. Furthermore, the defense recognizes the interplay between the Sixth

Case 1:04-cr-00103-REB

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Amendment right to compulsory process and the Fifth Amendment right to due process of law, both of which assure a criminal accused with the right to present a defense, balanced against discovery and pretrial procedure obligations. This interplay has been fully explored in cases beginning with Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646 (1988) to United States v. Russell, 100 F.3d 1503, 1509 (10th Cir. 1997); United States v. Bautista, 145 F.3d 1140, 1151 (10th Cir. 1998); United States v. Combs, 267 F.3d 1167, 1178 (10th Cir. 2001). 4. Nevertheless, the defense, as of this date, has not identified any witnesses

it should call to put on a "will call" list. It does not know if it is to the Defendant's advantage or not to call any one or more of the 1,000 alleged victims in this case. The defense will not know whether it wants to call any of these potential witnesses until after the close of the government case. This is in keeping with the presumption of innocence and the right of the Defendant not to call any witnesses or present a defense, since an accused may rely solely on putting the government to its proof and its ability, or lack of ability, to convince a trier of fact of the Defendant's guilt beyond a reasonable doubt. On the other hand, as the prosecution presents its case, the desirability of or reason for presenting a defense witness may manifest itself. 5. Listing 1,000 potential witnesses does not make any practical sense, nor

does it effectively give notice to the Court. However, these possible witnesses are people known to the government for years, they were disclosed by the government to the defense in discovery, and they are people who, for the most part, have been previously interviewed by government agents.

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6.

For this reason, the Defendant is unable to tender a list of potential witnesses

for the March 2, 2007, pretrial conference. He, therefore, objects to the requirement that he do so. Respectfully submitted this 28th day of February, 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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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 28th day of February, 2007, I electronically filed the foregoing Notice of Objection to Defense Pretrial Disclosure of Witnesses 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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