Free Response to Motion - District Court of Colorado - Colorado

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

Document 626

Filed 01/18/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case 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 RESPONSE TO MOTION TO QUASH SECOND SUPERSEDING INDICTMENT AS TO DEFENDANT MICHAEL D. SMITH _____________________________________________________________________ The United States (the government), by Wyatt Angelo and Matthew T. Kirsch, the undersigned Assistant United States Attorneys, respectfully requests that the Court deny the Motion to Quash1 Second Superseding Indictment as to Defendant Michael D. Smith [Doc. # 609] for the reasons that follow: Defendant Smith Has Not Demonstrated Withdrawal from the Conspiracy 1. Defendant Smith's first argument is that he withdrew from the conspiracy prior to the allegations contained in Counts 1, 7, 8, and 9 of the Second Superseding

The Federal Rules of Criminal Procedure do not provide for quashing of indictments. The government has therefore construed this motion as one to dismiss pursuant to Rule 12(b)(3)(B).

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Indictment.2 Defendant Smith's argument is akin to that made by defendant Lewis in his Motion to Dismiss Counts 1, 7, 8 and 9 of Second Superseding Indictment [Doc. # 605]. The government therefore incorporates here its Response to that motion [Doc. # 624]. Defendant Smith's motion should be denied for the same reasons detailed in the government's Response, in that he has not and cannot demonstrate an affirmative withdrawal from the conspiracy at this stage of the proceedings. In addition, to the extent that Defendant Lewis' motion is premised on the fact that he was in custody beginning in March of 2004, Defendant Smith cannot rely on Lewis' motion, because Defendant Smith was released on bond. Defendant Smith is Liable for the Reasonably Foreseeable Acts of His CoConspirators 2. Defendant Smith's next argument appears to be that some unspecified portions of the Second Superseding Indictment should be dismissed based on the holding in United States v. Melton, 131 F.3d 1400 (10th Cir. 1997). This argument appears to be tied to a desire to limit the loss which might be considered relevant conduct for sentencing purposes. In this context, defendant Smith's reliance on Melton makes sense, as it was a case addressing the scope of relevant conduct as it applies to jointly undertaken criminal activity. Id. at 1404-05. Melton is inapposite, however, to the question of an individual's

Although defendant Smith's Motion refers to paragraphs 1, 7, 8, & 9, the context of this reference suggests that this was a typographical error. 2

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criminal liability for a conspiracy which he may have joined after its inception. The fact that a person joined a conspiracy after its inception or did not control all aspects of a conspiracy does not prevent that person from being criminally liable for knowingly joining the conspiracy. United States v. Small, 423 F.3d 1164, 1182-83 (10th Cir. 2005); United States v. Roberts, 14 F.3d 502, 511 (10th Cir. 1993); United States v. Evans, 970 F.2d 663, 669-70 (10th Cir. 1992); United States v. Bollin, 264 F.3d 391, 405-06 (4th Cir. 2001). Defendant Smith's "Compliance" Argument is Premature 3. Defendant Smith next argues that all remaining allegations of the Second Superseding Indictment should be dismissed because of his affirmative compliance with duties, standards, and laws. As far as the government can tell, this is an argument that defendant Smith did not have the requisite mental state to support his conviction on the crimes charged. As such, it is an argument that should be reserved for trial. Rule 12 of the Federal Rules of Criminal Procedure does not contemplate dismissal on the grounds that a defendant does not believe the government will be able to prove its case. 4. If the government is correctly interpreting this argument, it is also not a new argument raised by the changes contained in the Second Superseding Indictment. The argument is therefore highly untimely and should be rejected on that basis. The Second Superseding Indictment Properly Charges Defendant Smith 5. The government construes defendant Smith's final argument as a challenge to

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the sufficiency of the indictment. An indictment is generally sufficient if it tracks the language of the charged statutes. Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. Hathaway, 318 F.3d 1001, 1009 (10th Cir. 2003). Here, the Second Superseding Indictment exceeds this standard by setting out in considerable detail the specific charges, including the relevant mental states for each crime. Defendant Smith's argument is baseless and should be rejected. 6. This argument, like the previous one, should also be rejected on the ground that it was not generated by the return of the Second Superseding Indictment and is therefore untimely. Respectfully submitted this 18th day of January, 2006,

WILLIAM J. LEONE United States Attorney

s/ Matthew T. Kirsch MATTHEW T. KIRSCH WYATT ANGELO Assistant U.S. Attorneys 1225 17th Street, 7th Floor Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 E-Mail: [email protected]

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify on this 18th day of January, 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO MOTION TO QUASH SECOND SUPERSEDING INDICTMENT AS TO DEFENDANT MICHAEL D. SMITH with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Peter Bornstein, Esq. [email protected] Thomas Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected] Ronald Gainor, Esq. [email protected] Daniel T. Smith, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Robert Patrick Sticht, Esq. [email protected] Paul B. Daiker, 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 E-Mail: [email protected]

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