Free Transcript - District Court of Colorado - Colorado

Case 1:03-cr-00023-MSK

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1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defendant. ____________________________________________________________ PRELIMINARY/DETENTION HEARING vs. SCOTT LEE KIMBALL, Defendant. ____________________________________________________________ Proceedings before CRAIG B. SHAFFER, United States Magistrate Judge, United States District Court for the District of Colorado, commencing at 10:11 a.m., March 30, 2006, in the United States Courthouse, Denver, Colorado. ____________________________________________________________ WHEREUPON, THE ELECTRONICALLY RECORDED PROCEEDINGS ARE HEREIN TYPOGRAPHICALLY TRANSCRIBED... ____________________________________________________________ APPEARANCES WILLIAM TAYLOR and A.J. MENENDEZ, Assistant United States Attorneys, appearing for the government. ROBERT BERGER, Attorney at Law, appearing for the IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cr-00023 ___________________________________________________________ UNITED STATES OF AMERICA, Plaintiff,

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Case 1:03-cr-00023-MSK

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2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Kimball. P R O C E E D I N G S (Whereupon, the within electronically recorded proceedings are herein transcribed, pursuant to order of counsel.) THE CLERK: (recording starts) ... versus Scott Lee I'll take appearances of counsel. MR. TAYLOR: Good morning, Your Honor. William

Taylor, Assistant U.S. Attorney for the government, ably assisted by M.J. Menendez. MR. BERGER: Robert Berger. I was appointed

yesterday to represent Mr. Kimball.

His prior appointed And Mr.

counsel could not appear for reasons I don't know. Kimball is present in custody.

We have signed the waiver of

preliminary hearing, and we've talked about the government's request for detention. I know that the probation officer is also recommending detention, and at this stage Mr. Kimball does not contest that. THE COURT: Okay. Mr. Kimball, I appreciate all It makes my job a

the information Mr. Berger has provided.

little easier, but I want to make certain just so the record is clear. You understand that we were here today or we are

here today for two purposes. THE DEFENDANT: Yes, Your Honor. THE COURT: You are entitled to a preliminary hearing under Rule 32.1. We're also here for a detention

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3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hearing. Now, taking the matters up in that order, the

government is required under Rule 32.1 to come forward with evidence of probable cause, reason to believe that you violated one or more conditions of supervised release. If

the government meets that probable cause standard, then this matter would be referred to the district court for

revocation proceedings.

If the government failed to meet

its burden of proof, then the matter would end right at that moment. Do you understand that? THE DEFENDANT: Yes, Your Honor. THE COURT: This preliminary hearing is designed to protect your rights. Now, you can waive your right to a

preliminary hearing under Rule 32.1, but I want to make certain that you're doing so knowingly and voluntarily. I've received a waiver form. This waiver form indicates

that you wish to give up your right to a preliminary hearing. Is that still the case? I don't want to

THE DEFENDANT: Yes, Your Honor. waste this Court's time. THE COURT: All right.

Don't worry.

You know, if

you weren't wasting my time, somebody else would be wasting my time, so it's -­ don't feel at all apologetic. In fact,

they've got a whole line of people coming in today, so don't worry about it. I want ­- I just want to make certain that

you're doing this understanding that this is a procedure

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4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 really designed to protect your rights. THE DEFENDANT: Yes, Your Honor, I understand. THE COURT: All right. And you've had sufficient

time to discuss this with Mr. Berger? THE DEFENDANT: Yes, I have. THE COURT: All right. I'm going to find that Mr.

Kimball has knowingly and voluntarily waived his right to a preliminary hearing under Rule 32.1, and I will accept that waiver. Now, Mr. Berger also has advised me that you are not contesting the government's request for detention. THE DEFENDANT: That's correct, Your Honor. THE COURT: Okay. Now, you should understand that

just because the government's asking for detention doesn't necessarily mean that that request is going to be granted. At a minimum, you would be entitled to present any

information you want on the question of detention. concede that under the statute, at this point

I will in the

proceeding, the burden would be on you, but you would have the opportunity at a detention hearing to present evidence for me to consider. that opportunity? THE DEFENDANT: Yes, Your Honor. THE COURT: And you are not contesting the As I understand it, you wish to give up

government's request for detention?

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5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE DEFENDANT: No, Your Honor. THE COURT: All right. Well, let me state for the

record that I will take judicial notice of the information contained release. in the petition for violation of supervised

I will take judicial notice of that information

particularly in view of the defendant's decision to waive his right to a preliminary hearing. Based upon the

information in this petition, I find at this time there is no combination of conditions that I could set that would reasonably assure In Mr. Kimball's I appearance note that for further are

proceedings.

particular,

there

allegations that Mr. Kimball has failed to report to the supervising officer, and, more importantly, that Mr. Kimball left the District of Colorado without permission. Accepting those allegations at face value, I have to conclude, Mr. Kimball, that there's just no condition that I could set ­THE DEFENDANT: Yes, Your Honor. THE COURT: -- that would reasonably assure your appearance, and on that basis I will remand Mr. Kimball back to the custody of the United States marshals, direct that he be held in custody, to be returned to court for a revocation hearing which will be set by the district court, and I guess, counsel, you'll need to go see -- this is in front of Judge -­

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Case 1:03-cr-00023-MSK

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6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Bonnie Nikolas Signature of Transcriber June 5, 2008 Date I certify that the foregoing is a correct (Whereupon, the within hearing was then in MR. TAYLOR: Krieger, Your Honor. THE COURT: You'll have to go see Judge Krieger to get a revocation date. MR. TAYLOR: Thank you, Your Honor. THE COURT: Thank you.

conclusion at 10:18 a.m. on March 30, 2006.)

transcript, to the best of my knowledge and belief, from the record of proceedings in the above-entitled matter.

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