Free Motion to Amend/Correct - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 727

Filed 04/26/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Action 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 MOTION TO CORRECT/AMEND THE THIRD SUPPLEMENTAL SCHEDULING ORDER _____________________________________________________________________ The Government, by Wyatt Angelo and Matthew T. Kirsch, the undersigned Assistant United States Attorneys, hereby moves to correct and amend paragraph 1 of the Third Supplemental Scheduling Order [Doc. 724] as inconsistent with the proceedings at the status conference held on April 21, 2006, and to amend the Order in accordance with paragraph 4 set forth below. Specifically and in support thereof the government states as follows: 1. At the status conference on April 21st, counsel for defendant Norman Schmidt inquired if the defendants would be provided with a list of the government witnesses in advance of trial. While government counsel conferred concerning

Case 1:04-cr-00103-REB

Document 727

Filed 04/26/2006

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the inquiry, the Court offered the government a period of time to state its position on the issue. The government requested and understood the Court to have granted two weeks to prepare and file its position statement. At no time did the government agree to provide such a list. 2. The government was drafting its position statement when it received the Third Supplemental Scheduling Order. The language of paragraph 1 of the Court's Third Supplemental Scheduling Order, which requires the government to produce a witness list by May 5, 2006, is not consistent with the proceedings before the Court and, as noted below, is inconsistent with extant law. 3. As the government previously noted in its Response to Defendant Jannice McLain Schmidt's Motion for Discovery [Doc. 279], which also requested advance disclosure of the government's witnesses, the government in a noncapital case has no obligation to provide a list of witnesses. Weatherford v. Bursey, 429 U.S. 545, 559 (1977);United States v. Russell, 109 F.3d 1503, 1510 (10th Cir. 1997); United States v. Metropolitan Enters., Inc., 728 F.2d 444, 451 (10th Cir. 1984). 4. However, in the interests of resource economy and due to the size of the discovery and the recent appearance of new counsel, the government is willing to provide a tentative, non-binding list of anticipated witnesses by December 1, 2006, if all defense counsel except for that of defendant Beros mutually agree to provide a similar tentative, non-binding list of defense witnesses by December 31, 2006, and if counsel for Mr. Beros agrees to provide his list not later than

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Case 1:04-cr-00103-REB

Document 727

Filed 04/26/2006

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February 15, 2007. 5. The government requests that this schedule of disclosure be incorporated into an Order of the Court upon concurrence by all counsel to disclosure on the dates indicated above. THEREFORE, the government requests that the Court correct and amend its Third Supplemental Scheduling Order in accordance with the record of the Status Conference on April 21, 2006, and incorporate therein the procedure and schedule for mutual exchange of witness lists as provided above. Respectfully submitted this 26th day of April, 2006, WILLIAM J. LEONE United States Attorney District of Colorado

s/ Matthew T. Kirsch WYATT ANGELO MATTHEW T. KIRSCH Assistant U.S. Attorneys 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0402 Email: [email protected]

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Case 1:04-cr-00103-REB

Document 727

Filed 04/26/2006

Page 4 of 4

CERTIFICATE OF SERVICE I certify that on the 26th day of April, 2006, I electronically filed the foregoing with the Clerk of 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] Ronald Gainor, Esq. [email protected] Daniel T. Smith, Esq. [email protected] Tomas Goodreid, Esq. [email protected] Mitchell Baker, Esq. [email protected]

s/ Matthew T. Kirsch WYATT ANGELO MATTHEW T. KIRSCH Assistant U.S. Attorneys 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0402 Email: [email protected]

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