Free Govt's Proffer - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB-MEH

Document 677

Filed 03/09/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Action No 04-cr-00103-REB UNITED STATES OF AMERICA Plaintiff, v. 1. NORMAN SCHMIDT, 2. GEORGE ALAN WEED, 3. PETER A.W. MOSS, 4. CHARLES LEWIS, 5. JANNICE McLAIN SCHMIDT, 6. MICHAEL SMITH, and 7. GEORGE BEROS, Defendants. _____________________________________________________________________ GOVERNMENT'S SECOND SUPPLEMENT TO JAMES PROFFER _____________________________________________________________________ The Government, by Wyatt Angelo and Matthew T. Kirsch, the undersigned Assistant United States Attorneys, hereby submits its Second Supplement to James Proffer in accordance with the Court's Supplemental Scheduling Order [Doc. # 584] and Second Supplemental Scheduling Order [Doc. # 658]. PROFFERED EVIDENCE CONCERNING THE CONSPIRACY 1. The government incorporates herein by reference the Proffered Evidence Concerning the Charged Conspiracy as set forth in Government's James Proffer [Doc. # 290] and the Government's First Supplement To James Proffer [Doc. # 592].

Case 1:04-cr-00103-REB-MEH

Document 677

Filed 03/09/2006

Page 2 of 4

ADDITIONAL STATEMENTS IN FURTHERANCE OF THE CONSPIRACY 2. The chart attached to this proffer as Attachment 2, titled Second Supplement to James Log, summarizes the co-conspirator statements made in furtherance of the conspiracy charged in the Second Superseding Indictment. The letters used in the "Admission Bases" column refer to the subparagraphs of paragraph 6 of the government's initial James Proffer, which identify purposes for which the coconspirator statements may be offered. (A chart summarizing these bases has been provided again as Attachment 1.) As explained in the original James Proffer, the government may offer some of these statements pursuant to rules of evidence other than Fed. R. Evid. 801(d)(2)(E). 3. The government has again listed statements 323 and 324 from its First Supplement To James Proffer because the Court has not yet ruled on the admissibility of those statements. 4. Statement 329 is similar to statement 55 from the initial James Proffer, which the Court initially ruled was a narrative, summary, or opinion as opposed to a statement. See Order Re: James Proffer [Doc. # 441], p. 9. The government has re-submitted this statement because Gary Herbert's deposition made clear that this was in fact a statement made to him by conspirator Leon Harte. The government also requests that the Court reconsider its previous ruling excluding previously submitted statements 321 and 322 on the basis that they were made outside the time frame of the conspiracy, id. at p. 8, as these statements were made within the expanded time frame of the conspiracy charged in the Second Superseding Indictment.

Case 1:04-cr-00103-REB-MEH

Document 677

Filed 03/09/2006

Page 3 of 4

5.

Statements about which Gary Herbert testified are referred to by deposition page number rather than Bates number because, although all defense counsel have been provided with copies of the deposition transcript, the transcript has not yet been scanned and Bates numbered. To the extent that statements recounted in this deposition are offered for purpose "k," they were made to Mr. Herbert for the purpose of representing conspirators Leon Harte, Norman Schmidt, and their associated entities in litigation brought by investors or the SEC. Respectfully submitted this 9th day of March, 2006. WILLIAM J. LEONE United States Attorney District of Colorado

s/ Matthew T. Kirsch MATTHEW T. KIRSCH WYATT ANGELO Assistant U.S. Attorneys 1225 17th Street, Suite 700 Denver, CO 80202 Telephone 303-454-0100 Facsimile 303-454-0402 Email: [email protected]

Case 1:04-cr-00103-REB-MEH

Document 677

Filed 03/09/2006

Page 4 of 4

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 9th day of March, 2006, 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: Peter Bornstein, Esq. [email protected] Thomas Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected] Ronald Gainor, Esq. [email protected] Paul B. Daiker, Esq. [email protected] Daniel T. Smith, Esq. [email protected] Thomas Goodreid, Esq. [email protected]

s/Matthew T. Kirsch Matthew T. Kirsch Assistant United States Attorney 1225 17th Street, 7th Floor Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 Email: [email protected]