Free Status Report - District Court of Colorado - Colorado

Case 1:04-cr-00048-WYD

Document 101

Filed 01/12/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 04-cr-00048-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. DAN LEHMAN, Defendant.

JOINT STATUS REPORT AND RESPONSE TO THE ORDER TO SHOW CAUSE

Comes now the United States of America, by and through William J. Leone, United States Attorney for the District of Colorado and Mark J. Barrett, Assistant United States Attorney and Harvey Steinberg, defense counsel, and, in compliance with this Honorable Court's order of January 10, 2006, files the following status report and response to the Order to Show Cause. MOTIONS THEORETICALLY REMAINING 1. On January 11, 2006, the defendant filed a Notice of Disposition indicating that the

parties have reached a plea agreement and requesting that the Motion's Hearing scheduled for January 17, 2006, be vacated. By order dated today, the Court vacated the Motion's Hearing and scheduled a Change of Plea Hearing for February 1, 2006 at 11:30 a.m. 2. Should Mr. Lehman's guilty plea fall through for some reason,1 the Court needs to hear

some additional testimony from law enforcement agents pertaining to defendant's challenge to The proposed plea agreement contains the following provision: "Defendant's obligations . . . D. Withdraw all motions to suppress evidence and/or agree that they will be denied as moot."
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the search of defendant's house on Franks v. Delaware grounds, and entertain argument on proposed findings of fact and conclusions of law. The defendant orally withdrew his motion to suppress the search of his family's business location. CAUSE FOR THE NONCOMPLIANCE WITH THE COURT'S MINUTE ORDER OF NOVEMBER 17, 2005 1. Initially, the parties wish to apologize for the Court for not complying with the Court's

order. Nevertheless, this was not as a result of wilful disobedience but rather through miscommunication and inadvertence of the parties. 2. Counsel for the Government sent counsel for the defendant a fully-drafted plea agreement

containing terms which Government counsel thought were in accord with the oral agreement the parties had reached shortly after the November 17, 2005, hearing before this Honorable Court. This written plea agreement was sent to the defense on December 9, 2005. (See attached cover e-mail.) Hearing nothing from defense by year's end, Government's counsel assumed that a Notice of Disposition would be filed by January 9, 2006, thus obviating the need for the joint filing.2 3. Obviously, defense counsel did have some problems with the proposed plea agreement,

which caused him to file the status report he did on January 9, 2006. These problems were quickly addressed upon Government's return to the office on January 11, 2006, resulting in a defense-filed notice of disposition the same day.

Government counsel left Denver on January 3, 2006, to fly to Philadelphia to attend his father's 86th birthday celebration. He returned to the Denver U.S. Attorney's office on January 11, 2006. 2

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4.

Thus, neither defense counsel, who needed to file a status report by January 9, 2006, and

could not on that day reach Government counsel, nor Government counsel, who assumed that there would not be a need for a continued suppression hearing, were seeking to ignore the Court's order. As the basis for this Court's order of November 17, 2005, has been obviated (through the vacation of the January 17, 2006, continued motion's hearing) and as the parties have explained their non-compliance with the strict terms of that same order, the parties ask that the Court not impose sanctions upon them for the inadvertent lapse. Respectfully submitted, WILLIAM J. LEONE United States Attorney By: s/Mark J. Barrett MARK J. BARRETT Assistant United States Attorney United States Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Phone: (303) 454-0100 Fax: (303) 454-0401 [email protected] Attorney for Government s/ Harvey Steinberg HARVEY STEINBERG Springer & Steinberg, P.C. 1600 Broadway #1200 Denver, Colorado 80202 Phone: (303) 861-2800 Fax: (303) 832-7116 [email protected] Attorney for Defense

By:

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