Free Motion to Withdraw - District Court of Colorado - Colorado

Case 1:03-cv-00923-REB-CBS

Document 260

Filed 07/31/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action no. 03-cv-000923-CBS-REB SECURITIES AND EXCHANGE COMMISSION, Plaintiff, AND UNITED STATES ATTORNEY'S OFFICE, DISTRICT OF COLORADO Intervenor, v. CAPITAL HOLDINGS, L.L.C., et al., Defendants, FAST TRACK L.L.C.; et al., Defendants, Solely for Purposes of Equitable Relief. _____________________________________________________________________ MOTION TO WITHDRAW & LIFT PARTIAL STAY OF DISCOVERY _____________________________________________________________________ The United States Attorney's Office for the District of Colorado (the "USAO") moves to withdraw as an intervenor/plaintiff in this action, pursuant to Federal Rule of Civil Procedure 21, and respectfully requests that the Court lift the partial stay of discovery currently in effect. In support, the USAO says: 1. The USAO was allowed to intervene in this action based on the relationship between the subject matter of this case and the facts underlying the Second Superseding Indictment returned in United States v. Norman Schmidt et al., criminal case no. 04cr-00103-REB. See Mem. Ord. Mot. Intervene & Stay Proceedings [# 171].

Case 1:03-cv-00923-REB-CBS

Document 260

Filed 07/31/2007

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2. In conjunction with its request to intervene, the USAO also previously sought and received a partial stay of the discovery in this matter until the conclusion of trial proceedings in United States v. Schmidt et al. See id. 3. Six of the seven defendants named in the Second Superseding Indictment have either pled guilty or have been convicted following a jury trial. The seventh defendant, Peter A. W. Moss, remains a fugitive. Based on these facts, the USAO's original concerns prompting its request for a stay of discovery--that the civil discovery process available in this matter might be used to circumvent the more restricted discovery available in the criminal proceeding and that witnesses in the criminal case might be intimidated--have evanesced. 4. Rule 21 of the Federal Rules of Criminal Procedure allows a party to be dropped from an action, based upon its own motion, "on such terms as are just." But for the USAO's intervention to protect its interests in the related criminal case, the USAO has no responsibility for nor connection to the claims at issue in this matter; the USAO's withdrawal therefore will not affect the interests of the other parties. 5. Counsel for the SEC and for Terry Lorenzen have indicated that they do not oppose the relief requested in this motion. Counsel for Michael Smith has not responded to an email, sent on July 26, 2007, asking for his position on this motion. The USAO either does not have telephone numbers for the other parties to this litigation or has refrained from contacting them given their status as represented defendants in the related criminal matter. The USAO, however, indicated its intent to move to withdraw from this matter during the last telephonic status conference, in which all parties participated. No parties expressed opposition to that expressed intent either during that conference or 2

Case 1:03-cv-00923-REB-CBS

Document 260

Filed 07/31/2007

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since. The USAO therefore believes that no parties oppose this motion. THEREFORE, for the foregoing reasons, the USAO respectfully requests that the Court allow it to withdraw and lift the partial stay of discovery. Respectfully submitted this 31st day of July, 2007, TROY A. EID United States Attorney s/ Matthew T. Kirsch MATTHEW T. KIRSCH Assistant U.S. Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone 303-454-0100 Facsimile 303-454-0402 Email: [email protected] Attorney for the USAO

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Case 1:03-cv-00923-REB-CBS

Document 260

Filed 07/31/2007

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 31st day of July, 2007, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Marshall Milby Gandy Securities & Exchange Commission [email protected] Declan Joseph O'Donnell Declan Joseph O'Donnell, P.C. [email protected] Robert T. McAllister Robert T. McAllister, P.C. [email protected] Daniel Charles Stiles Isaacson Rosenbaum, P.C. [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants: Lowell H. Becraft, Jr. 209 Lincoln Street Huntsville, AL 35801 Heritage America c/o Michael Vallone 11901 Brookshire Drive Orland Park, IL 60567 Roy R. Chavers 2401 Belmont Place Plano, TX 75023 Jeffrey D. Mitchell 7115 North Division Street Suite B-360 Spokane, WA 99208 John J. Schlabach 12128 North Division Street, #176 Spokane, WA 99218 National Marketing Solutions, LLC North West Group, LLC 9986 N. Newport Hwy., #378 Spokane, WA 99218

Glen Andrew Anderson Washington State Attorney General's Office 629 Woodland Square Loop SE P.O. Box 40126 Olympia, WA 98504-0126 s/ Matthew T. Kirsch MATTHEW T. KIRSCH Assistant U.S. Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone 303-454-0100 Facsimile 303-454-0402 Email: [email protected] 4