Free Motion for Bond - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1413

Filed 11/02/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Criminal Action No. 04-cr-00103-REB UNITED STATES OF AMERICA, Plaintiff, v. 5. JANNICE McCLAIN-SCHMIDT, et al., Defendants. ______________________________________________________________________________ MOTION FOR RELEASE ON BOND PENDING RESENTENCING ______________________________________________________________________________ Defendant, Jannice McClain Schmidt, by her attorney Paula M. Ray, respectfully moves this Honorable Court for release on bond pending resentencing or, in the alternative, for either an expedited hearing or transfer of the case for resentencing to an available Judge, as follows: 1. 2. Release pending sentence is available under 18 U.S.C. § 3143(a). Defendant, Jannice McClain Schmidt, is subject to resentencing. United States v.

Schmidt, No. 06-1412, slip op. (10th Cir. Aug. 10, 2007). 3. As more particularly set forth in Defendant's Sentencing Hearing Memorandum

(DOC. No. 1392), Ms. Schmidt should have been sentenced to 0-6 months instead of to 108 months, based on the facts adduced at Ms. Schmidt's previous sentencing hearing. 4. In order to sustain the current sentence, the Government must show that Ms.

Schmidt joined the ponzi scheme/conspiracy in August of 2001, as alleged by the Government in its filings prior to sentencing. Conspiracy is inherently subject to Governmental abuse:

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[W]e are mindful that the conspiracy doctrine is inherently subject to abuse and that the government frequently uses conspiracy to cast a wide net that captures many players. Thus, we must be careful to guard against guilt by association, to "scrupulously safeguard each defendant individually, as far as possible, from loss of identity in the mass": When many conspire, they invite mass trial by their conduct. Even so, the proceedings are exceptional to our tradition and call for use of every safeguard to individualize each defendant in his relation to the mass. . . . United States v. Evans, 970 F.2d. 663, 668 (10th Cir. 1992) citing, Kotteakos v. United States, 328 U.S. 750, 773 (1946). 5. The Government must show that, as early as 2001, Ms. Schmidt agreed to violate

the law, that she knew the essential objectives of the conspiracy, that she knowingly and voluntarily became part of the conspiracy, and that the coconspirators were interdependent. See Id.; United States v. Anderson, 981 F.2d 1560, 1563 (10th Cir. 1992). A defendant lacks the criminal intent to commit conspiracy where she does not know the objective of the conspiracy, which must be shown by clear and unequivocal evidence. Anderson, supra. A showing of mere association with conspirators is not enough for the Government to prove the conspiracy. Id. at 1564. Conspiracy will not be sustained where evidence does no more than create suspicion of guilt or results from "piling inference on top of inference." Evans, 970 F.2d. at 671 citing, United States v. Horn, 946 F.2d 738, 741 (10th Cir. 1991). See also, United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995). Finally, association with conspirators, without more, does not support a conspiracy charge. See Jones, 44 F.3d at 866; United States v. Riggins, 15 F.3d 992, 994 (10th Cir. 1994). 6. The Government's evidence submitted to date does not meet this standard. See

Presentence Investigation Report and supporting documents.

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7.

Ms. Schmidt poses no flight risk, nor does she pose a danger to the safety of any

person or the community. See 18 U.S.C. § 3143(1)(a). Ms. Schmidt is not subject to the more stringent test for detention under 18 U.S.C. § 3143(2). 8. The hearing on sentencing has been re-set from October 19, 2007 to Friday,

February 1, 2008, due to scheduling conflicts of the many counsel and the Court. Under the circumstances of the ninety day delay in determining her sentence, Ms. Schmidt's substantial rights are affected. 9. In the alternative, Ms. Schmidt would request an expedited hearing, within the

next thirty (30) days, in order to avoid further confinement above a reasonable sentence under the United States Sentencing Guidelines. 10. In the event this Court is unwilling to release Ms. Schmidt on bond and is unable

to expedite the hearing, Ms. Schmidt respectfully requests that the case be transferred to an available Judge to hear the sentencing issues in her case as soon as possible. 10. The Government Attorneys have no objection to an expedited hearing before this

Court. The Government Attorneys object to Bond Pending Resentencing and Transfer to another Judge for Resentencing. For the foregoing reasons, Defendant Jannice McClain Schmidt respectfully requests: (1) (2) To be released on bond pending resentencing; In the alternative, for a date certain within thirty (30) days for a hearing regarding

loss enhancements; or (3) In the alternative, in the event this Court cannot set the hearing within thirty (30)

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days, that the case be transferred for the hearing on the enhancements before a Judge that is available. DATED this 2nd day of November, 2007 Respectfully submitted,

s/ Paula M. Ray 1801 Broadway, Suite 1100 Denver, CO 80202-3839 Telephone: 303.292.0110 Email: [email protected] CERTIFICE OF SERVICE I hereby certify that on this 2d day of November, 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: Peter Bornstein, Esq. [email protected] Thomas Hammond, Esq. [email protected] Declan J. O'Donnell, Esq. [email protected] Matthew T. Kirsch, Esq. [email protected] I have sent a copy via U.S. mail, postage prepaid to: Caryl Ricca Senior U.S. Probation Officer United States Probation Office 1929 Stout Street, Suite C-120 Denver, CO 80294-5424 Richard N. Stuckey, Esq. [email protected] Thomas Goodreid, Esq. [email protected] Ronald Gainor, Esq. [email protected]

s/ Paula M. Ray

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