Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1420

Filed 11/07/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 04-cr-00103-REB-05 UNITED STATES OF AMERICA, Plaintiff, vs. 5. JANNICE MCLAIN SCHMIDT, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR RELEASE ON BOND PENDING RESENTENCING

The United States of America (the government), by and through Assistant United States Attorneys Wyatt Angelo and Matthew T. Kirsch, opposes defendant Jannice Schmidt's Motion for Release on Bond Pending Resentencing [# 1413] for the reasons stated below: 1. The Bail Reform Act of 1984 requires a court to order the detention of a convicted defendant unless that defendant can carry the burden of demonstrating "by clear and convincing evidence that [she] is not likely to flee or pose a danger to the safety of any other person or the community if released...." 18 U.S.C. § 3143(a); United States v. Affleck, 765 F.2d 944, 946 (10th Cir. 1985). A defendant must carry this burden with reference to the factors set out in Section 3142(g), including: (1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence or involves a narcotic drug; (2) the weight of the evidence against a person;

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(3) the history and characteristics of the person, including ­ (A) his character, physical and mental condition, family ties, employment, financial resources, length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and (B) whether, at the time of the current offense, he was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence . . .; and (C) the nature and seriousness of the danger to any person or the community that would be posed by the person's release. 18 U.S.C. §§ 3142(g), 3143(a). Danger to the community, for the purposes of this statute, includes "danger that the defendant might engage in [non-violent] criminal activity to the detriment of the community." United States v. Cook, 880 F.2d 1158, 1161 (10th Cir. 1989) (quoting legislative history for the Bail Reform Act). 2. The only exception to the presumption of detention for a convicted defendant applies to those defendants for whom the applicable Sentencing Guidelines do not recommend a term of imprisonment. 18 U.S.C. § 3143(a)(1). Although defendant Schmidt argues that the applicable Sentencing Guideline range is 0-6, she cannot carry her burden on this point. Judge Blackburn originally sentenced the defendant to 108 months' imprisonment. Judgment [# 828]. Although the Tenth Circuit has remanded the case for resentencing, it did not hold that the district court's decision was incorrect, but only that additional factual findings were necessary. United States v. Schmidt, Slip Copy, 2007 WL 2285859, *4*5 (10th Cir. Aug. 10, 2007). At the hearing on November 9th, the government will be prepared to summarize evidence supporting Judge Blackburn's original

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findings concerning the applicable Sentencing Guideline range of 108-120 months. 3. The defendant's motion also rests on the bare assertions, with no reference to any evidentiary support, that she poses neither a flight risk nor a danger to the community. An analysis of the Section 3142(g) factors does not support these assertions. The defendant stands convicted of participating in a securities fraud scheme involving in total hundred of victims who invested approximately $50 million and spanning approximately five years. See 18 U.S.C. § 3142(g)(1). The weight of the evidence against the defendant was strong enough to cause her to plead guilty. See id. § 3142(g)(2). The defendant appears to have no significant employment prospects, no property available to secure a bond, and no family ties to the community other than her husband, who is currently awaiting sentencing on the same case in the Federal Detention Center-Englewood. See id. § 3142(g)(3)(A). Most importantly, the defendant ignores the fact that her initial pre-trial release in this case was revoked because she continued, after her initial release from custody on a bond, to engage in the same scheme to defraud to which she ultimately pled guilty and was therefore found to be a danger to the community by clear and convincing evidence. See 18 U.S.C. § 3142(g)(3)(A); Mins. Hr'g Gov't Mot. Revocation Release [# 544]. Given that track record, the defendant cannot carry her burden of proving that she will not endanger the community by engaging in some other fraud if she is released again. See United States v. Dago, 813 F. Supp. 736, 749 (D. Colo. 1992), overruled on

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other grounds, 33 F.3d 63 (10th Cir. 1994) (denying appeal pending sentencing in case where defendant had previously timely appeared for court proceedings and had significant family ties in the jurisdiction because "numerous guilty verdicts and the prospect of substantial sentences create a high probability for flight"). 4. The government respectfully suggests that the defendant's alternative requests for an expedited resentencing hearing or a transfer to another district judge for resentencing should be decided by the sentencing court. THEREFORE, the government requests that defendant Schmidt's Motion for Release on Bond Pending Resentencing [# 1413] be denied insofar as it requests her release on bond pending resentencing. Respectfully submitted this 7th day of November, 2007, TROY A. EID United States Attorney

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] [email protected] Attorneys for the United States

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Case 1:04-cr-00103-REB

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CERTIFICATE OF SERVICE(CM/ECF) I hereby certify that on this 7th day of November, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR RELEASE ON BOND PENDING RESENTENCING with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: Peter Bornstein, Esq. [email protected] Thomas Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected] Paula Ray, Esq. [email protected] and I hereby certify that I have served the document or paper to the following nonCM/ECF participant via mail: Senior United States Probation Officer Caryl Ricca 1929 Stout Street, Suite C-120 Denver, CO 80294 s/Matthew T. Kirsch Matthew T. Kirsch Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0100 Fax: (303) 454-0402 email: [email protected] Richard N. Stuckey, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Ronald Gainor, Esq. [email protected]

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