Free Motion to Sever Defendant - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1026

Filed 02/28/2007

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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.

MOTION FOR SEVERANCE

Defendant, Norman Schmidt, by his counsel of record, Peter R. Bornstein and Thomas J. Hammond, moves this Court for a severance of this Defendant from the trial of the remaining Defendants in this case. As grounds in support of his Motion, Defendant Schmidt states to the Court as follows: 1. This Motion for Severance is made pursuant to Rule 14 of the Federal Rules

of Criminal Procedure based on the doctrine of antagonistic defenses. Zafiro v. United States, 506 U.S. 534 (1993). 2. As this case approaches the trial date, it is apparent that the other

Defendants will adopt a trial tactic of pointing the finger at the Defendant Norman Schmidt to say that he is solely responsible. 3. Counsel further believes from talking to other Defendants' counsel that

Michael Smith and George Weed intend to testify on their own behalf at the trial. At least

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one will seek to exonerate himself by putting the blame on Norman Schmidt. juxtaposition, it is unlikely that Norman Schmidt will testify on his own behalf. 4.

In

This scenario sets in play the right of counsel for testifying Defendants to

comment and argue that Defendant Schmidt's silence supports their innocence. 5. The seminal case on this right to comment by one defense counsel on the

silence of another defendant is found in the case of DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962). In that case, Judge Wisdom said that while neither the judge nor the prosecutor can comment on an accused failure to testify, the attorneys for co-defendants have a duty to their client that requires them to draw to the jury's attention all possible inferences to be made of the failure of a co-defendant to testify, "just as an attorney is free to comment on the effect of any interested party's failure to produce material evidence in its possession or to call witnesses who have knowledge of pertinent facts." DeLuna at 143. 6. The remedy in such situations is to grant a severance mid-trial, which also

requires the granting of a mistrial perforce. See also United States v. Metz, 625 F.2d 775 (8th Cir. 1980) and United States v. Blankenship, 382 F.3d 1110 fn 20 (11th Cir. 2004). 7. While 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 underlying the case. United States v. Rantz, 862 F.2d 808, 811 (10th Cir. 1988) and Kolod v. United States, 371 F.2d 983, 990-991 (10th Cir. 1967). 8. Defendant Schmidt believes that at least one of the co-defendants will take

the stand in their own defense. It will then be the duty of their counsel to comment on the failure of Defendant Schmidt to take the stand in his own defense and refute the

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allegations made against him. While such comment is prohibited from the prosecution, it is part of the duty of a defendant's counsel. 9. When that scenario occurs, Defendant Schmidt will make a Motion for

Severance and Mistrial under the specific authority of the DeLuna case, supra. 10. Accordingly, Defendant Schmidt presents the Court with an opportunity as

a pretrial issue to address this likely occurrence during the defense portion of the case. Defendant Schmidt, therefore, asks for a severance of his trial from that of the remaining co-defendants. 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 Motion 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: 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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