Free Order on Motion for Joinder - District Court of Colorado - Colorado

Case 1:04-cr-00103-REB

Document 709

Filed 04/12/2006

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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-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, GEORGE BEROS, Defendants.

ORDER RE: SECOND SUPPLEMENT TO JAMES PROFFER Blackburn, J. In accordance with my Second Supplemental Scheduling Order [#658], filed February 7, 2006, the government has submitted its second supplemental James1 log setting forth additional alleged co-conspirator statements it will seek to introduce at trial pursuant to Fed.R.Evid. 801(d)(2)(E).2 I have judicially noticed all relevant adjudicative facts in the file and record of this case. I have considered the Second Superseding

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So nam ed for United States v. James, 590 F.2d 575 (5 th Cir.), cert. denied, 99 S.Ct. 2836

(1979). The governm ent m ay attem pt to offer som e of the statem ents enum erated in its James log pursuant to evidential hypotheses other than Fed.R.Evid. 801(d)(2)(E). In addition, som e defendants have lodged objections to statem ents in the James log on bases other than their adm issibility under Fed.R.Evid. 801(d)(2)(E). The determ ination of other possible independent bases for adm ission or exclusion rem ains for trial.
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Case 1:04-cr-00103-REB

Document 709

Filed 04/12/2006

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Indictment, the government's James log, and the reasons stated, arguments advanced, and authorities cited by the parties in their papers. I have considered and applied Fed.R.Evid. 102, 104(a) & (c), 611(a)(1) & (2), 801(d)(2)(A), (B), (C), (D), & (E), and 1101(d)(1) as codified and construed. I also have considered and hereby incorporate by reference the relevant legal precepts and standards governing resolution of the issues presented by the proffer, which were previously set forth at length in my Order Re: James Proffer at 2-8 [#441], filed May 25, 2005. Applying those analytical principles to the extant record, I conclude that the government has established by a preponderance of the evidence, including both direct and circumstantial evidence, as follows: (1) that the single conspiracy alleged by the government in Count 1 of the Second Superseding Indictment existed; (2) that all defendants, as well as the other individuals identified in the government's original James Proffer [#290], filed December 30, 2004, and its First Supplement to James Proffer [#592], filed November 21, 2005, were participants in that conspiracy; and (3) that all the enumerated statements in the government's Second Supplement to its James log were made in the course of and in furtherance of the conspiracy, by a coconspirator, whether indicted or unindicted, with the following exceptions: a. The following items are not (or are not clearly) co-conspirator statements, as that term is defined by Fed.R.Evid. 801(a), but rather constitute narratives, summaries, or opinions: 327, 328, 329, 338, 340, and 355. These items have not been shown to be admissible under Fed.R.Evid. 801(d)(2)(E);

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Case 1:04-cr-00103-REB

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Therefore, the above-enumerated statements set forth in the government's James log should not be admitted as co-conspirator statements under Fed.R.Evid. 801(d)(2)(E). I have considered the other objections to the statements set forth in the Second Supplement to the government's James log and find them to be imponderous and without merit. In particular, I overrule defendant Norman Schmidt's objection that because the evidence of some of the statements was previously available to the government, its proffer as to those statements is untimely.3 Although the government frankly admits that it overlooked this evidence in crafting its original James proffer, in the absence of any allegation or argument that defendants will suffer prejudice as a result of the admission of these statements, mere untimeliness is not a sufficient basis on which to find them inadmissible. THEREFORE, IT IS ORDERED as follows: 1. That all of the statements enumerated in the government's Second Supplement to its James log, with the exception of statements 327, 328, 329, 338, 340, and 355, are ostensibly admissible as co-conspirator statements under Fed.R.Evid. 801(d)(2)(E); 2. That Defendant Jannice McLain Schmidt's Motion to Join in the Responses of the Defendants Norman Schmidt and George Alan Weed's

I further note that Schm idt's response was filed inexplicably beyond the twenty-day deadline im posed by m y Second Supplem ental Scheduling Order at 2, ¶ 1 [#658], filed February 7, 2006, and without a request for leave to file out of tim e. This is not the first tim e Schm idt has m issed a filing deadline in this case, and I find the apparent trend disturbing. Nevertheless, because there is no apparent prejudice to the governm ent in considering the late-filed response, I will address the objections raised therein.

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Case 1:04-cr-00103-REB

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Filed 04/12/2006

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Responses to Government's Second Supplement to James Proffer [#694],4 filed April 4, 2006, is GRANTED; 3. That Defendant George Beros' Motion to Join in the Responses of the Defendants Norman Schmidt and George Alan Weed to Government's Second Supplement to James Proffer [#695], filed April 4, 2006, is GRANTED; 4. That Defendant Charles Lewis' Motion to Join in the Responses of Defendants Norman Schmidt and George Alan Weed to Government's Second Supplement to James Proffer [#698], filed April 4, 2006, is GRANTED; and 5. That Defendant Michael Smith's Motion to Join in the Responses of Defendants Norman Schmidt and George Alan Weed to Government's Second Supplement to James Proffer [#706], filed April 11, 2006, is GRANTED. Dated April 12, 2005, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

I note that this docum ent, as well as all the other m otions to join identified herein, are filed outside the 72-hour deadline im posed by m y Second Supplem ental Scheduling Order at 2, ¶ 2 [#658], filed February 7, 2006, without explanation or request for leave to file out of tim e. Nevertheless, I see no prejudice to the governm ent, and thus will grant the requests.

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