Free Motion to Quash - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 1147-5 Filed 04/25/2007 Page 1 of 2 U.S. Department of Justice Troy A. Eid 1225 Seventeenth Street, Suite 700 United States Attorney
(303) 454-0100

Seventeenth Street Plaza Denver, Colorado 80202

(FAX) (303) 454-0404

District of Colorado April 23, 2007

James Russell, Assistant United States Attorney Office of the U.S. Attorney 1225 17th Street, Suite 700 Denver, CO 80220 Re: United States v. Norman Schmidt Criminal Case No. 04-cr-00103-REB

Dear AUSA Russell: Pursuant to 28 C.F.R. § 16.21 et seq., I have reviewed the subpoena served on you by defendant Mike Smith in the above case, which commands you to appear and give testimony at trial on May 1, 2007. I have also reviewed a letter from defense counsel, Richard N. Stuckey, to AUSA Matt Kirsch dated February 18, 2007, which provides the following description of the testimony which the defendant seeks to obtain from you: During negotiations regarding some sort of claim pressed by Norman Schmidt and his attorney against the seized funds in this case, AUSA Russell, for whatever reason or reasons, agreed to allow $200,000 to be returned, or to be given over, from the corpus of the seized funds to Norman Schmidt, and possibly his wife, or the attorney, and the funds were so turned over (by government voucher, or check, or transfer, or whatever) to Norman Schmidt, or to his attorney, or his wife, or a bank account. Pursuant to the DOJ Touhy regulations, you are prohibited by law from testifying about information you obtained in the course of your official duties without my prior approval. 28 C.F.R. § 16.21 et seq. Pursuant to 28 C.F.R. § 16.24(b), I may authorize the appearance and testimony of a present or former employee of this office if appropriate in light of the factors set forth in § 16.26. Those factors are whether the disclosure is EXHIBIT 4

Case 1:04-cr-00103-REB

Document 1147-5

Filed 04/25/2007

Page 2 of 2

appropriate under the applicable rules of procedure and privilege, and whether the disclosure would violate a statute or regulation, or reveal classified information, a confidential source, investigatory records, or trade secrets. After considering Mr. Stuckey's description of your proposed testimony in light of these factors, I have decided not to authorize your testimony. It appears that disclosure is not appropriate under the applicable rules of procedure and privilege, because defense counsel apparently seeks testimony about your reasons for entering into the settlement. Such testimony would be protected under the attorney work product, attorney client, and deliberative process privileges. Accordingly, you are instructed that you may not testify in the above case.

Very truly yours,

S/ Troy A. Eid TROY A. EID United States Attorney

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