Free Order on Motion for Order to Show Cause - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 801

Filed 07/19/2006

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Criminal Action No. 04-cr-00103-RB UNITED STATES OF AMERICA, Plaintiff, v. 1. 2. 3. 4. 5. 6. 7. NORMAN SCHMIDT GEORGE ALAN WEED, PETER A.W. MOSS, CHARLES LEWIS, JANNICE McLAIN SCHMIDT, MICHAEL SMITH, and GEORGE BEROS, Defendants.

ORDER Blackburn, J. The matters before me are (1) Motion to Show Cause Why the US Government Should Not Be Required to Remove All Instances of the Use of the Name Tim Richardson, and For Injunctive and for Other Relief [#760], filed May 25, 2006; and (2) Motion to Show Cause Why the US Government Should Not Be Required to Remove All Instances of the Use of the Name John Schlabach, and For Injunctive and for Other Relief [#763], filed June 1, 2006. I deny the motions.1 The operative indictment alleges, inter alia, that the seven named defendants conspired among themselves and with others "known and unknown" to commit wire,

1

Movants' requests for oral argum ent are denied also.

Case 1:04-cr-00103-REB

Document 801

Filed 07/19/2006

Page 2 of 5

mail, and securities fraud. Movants are not named in the Second Superseding Indictment, nor were they named in any previous derivation of the indictment. However, movants have been named in the government's James proffer and its subsequent supplement. (See James Proffer [#290], filed December 30, 2004; Second Supplement to James Proffer [# 677], filed March 9, 2006.) I have ruled already on the admissibility of the statements enumerated in these proffers, some of which statements are attributable to movants. By the present motions, movants seek to expunge these references. The first issue is whether this criminal case is the appropriate forum for resolution of movants' complaints. As the government argues, the Federal Rules of Criminal Procedure provide no real mechanism allowing a non-party to intervene in an ongoing criminal proceeding. Nevertheless, while there may be other avenues by which the relief sought here might be pursued, I note that other courts have found it more equitable and expeditious to simply allow what amounts to intervention. See, e.g., In re Smith, 656 F.2d 1101, 1104 & n.8 (5th Cir. 1981) (although no formal rule permitted unindicted co-conspirator to seek to expunge his name from defendant's factual resume, court approved of motion to strike as "an innovative hybrid" of Fed.R.Crim.P. 7(d) and Fed.R.Civ.P. 12(f)); United States v. Driscoll, 445 F.Supp. 868, 868 (D.N.J. 1978) ("[T]he court sees no reason to put the [non-party movant] to further expense, or to the risk that if it be entitled to the remedy sought the criminal trial will be ended before the civil case can be reached. That would make the remedy a will-o-the-wisp."). See also United Stated v. Dorfman, 690 F.2d 1217, 1224 -25 (7th Cir. 1982) (agreeing

2

Case 1:04-cr-00103-REB

Document 801

Filed 07/19/2006

Page 3 of 5

to determine motions to suppress where non-party movants would otherwise be unable to obtain review of their claims that surveillance violated their rights to privacy and consideration of issues would not interfere with orderly progress of the criminal proceeding) (citing United States v. Hubbard, 650 F.2d 293, 314 (D.C. Cir. 1980)); United States v. Wade, 992 F.Supp. 6, 10 (D.D.C. 1997) (allowing non-party to file motion contesting order of abatement based on "equitable considerations of justice and fairness"); State v. Ervin, 248 S.E.2d 91, 96 (N.C. App. 1978) (finding no error in allowing intervention in criminal proceeding based on considerations of congestion of court calendar and the expense of sequential trials). I see no reason to deviate from the common sense principle espoused by these cases, and, thus, find that this is an appropriate forum for resolution of the present motions. Movants claim to derive authority for their substantive request from the seminal case of United States v. Briggs, 514 F.2d 794 (5th Cir. 1975). Briggs makes a forceful and eloquent case that the practice of naming unindicted co-conspirators in an indictment deprives those individuals of their rights to due process. Id. at 800-08. Other federal courts that have faced the issue have been nearly unanimous in their approval of the holding of Briggs. See generally 1 CHARLES ALAN W RIGHT , FEDERAL PRACTICE
AND

PROCEDURE CRIM INAL 3d § 110 n.15 (1999) (citing cases). But see

Driscoll, 445 F.Supp. at 868-69 (refusing to expunge indictment when unindicted coconspirator was deceased). Although the Tenth Circuit has not yet had occasion to examine the issue, at least one district court in this circuit has stricken the names of unindicted co-conspirators from an indictment based on the teachings of Briggs. See

3

Case 1:04-cr-00103-REB

Document 801

Filed 07/19/2006

Page 4 of 5

United States v. Anderson, 55 F.Supp.2d 1163, 1169-70 (D. Kan. 1999). However, in this case movants were not named in any iteration of the indictment. Rather, they complain about the inclusion of their names in the government's James proffers. I conclude that the precedents cited above do not extend so far. Indeed, faced with a similar request, the district court in Anderson held explicitly that the unindicted co-conspirators' due process rights were not violated by being identified at trial in connection with the government's offer of proof under Fed.R.Evid. 801(d)(2)(E). Id. As in Anderson, the government here has a substantial interest in identifying movants for purposes of determining whether coconspirator evidence will be admissible at trial. Id. at 1169. Although movants' countervailing interests certainly are not unimportant, they must necessarily yield to the proper administration of criminal justice. Id. Moreover, unlike an indictment, identification for purposes of Rule 801(d)(2)(E) does not necessarily suggest that movants are criminals, but rather shows only that they are "joint venturers" in a common plan. Id. For these reasons, I find that movants' due process rights were not violated by the inclusion of their names in the James proffer. Therefore, their motion to have those records expunged should be denied. To the extent that movants contest the propriety of my rulings on the James proffers themselves, they have shown no cognizable basis for reconsidering my determinations of those matters. See United States v. D'Armond, 80 F.Supp.2d 1157, 1170 (D. Kan. 1999). Accordingly, no relief is warranted on this basis either.2

Movants request also that the governm ent provide them with certified letters exonerating them of any wrongdoing in this m atter. I would be surprised to learn that I have authority to order such relief, and m ovants have provided no authority to support a contrary conclusion.

2

4

Case 1:04-cr-00103-REB

Document 801

Filed 07/19/2006

Page 5 of 5

THEREFORE, IT IS ORDERED as follows: 1. That Motion to Show Cause Why the US Government Should Not Be Required to Remove All Instances of the Use of the Name Tim Richardson, and For Injunctive and for Other Relief [#760], filed May 25, 2006, is DENIED; and 2. That Motion to Show Cause Why the US Government Should Not Be Required to Remove All Instances of the Use of the Name John Schlabach, and For Injunctive and for Other Relief [#763], filed June 1, 2006, is DENIED. Dated July 19, 2006, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

5