Free Proposed Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-cv-01041-PSF-BNB UNITED STATES OF AMERICA, Plaintiff, v. DAVID B. ST. GERMAIN, and RANDY OVERLEY, Defendants.

FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES On August 9, 2005, at 9:00 a.m., the following parties appeared at the Final Pretrial Conference, which was presided over by Magistrate Judge Boland: United States, through Special Assistant U.S. Attorney Christopher Alberto; defendant Randy Overley, through attorney Ty Gee; and David B. St. Germain, pro se, defendant. At the Court's direction on August 9, Mr. Alberto on the week of August 22 contacted Mr. St. Germain and provided him with a copy of the proposed final pretrial order that was submitted to the Court on or about August

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2. Mr. Alberto informed Mr. St. Germain that any information he intends to submit to the Court for purposes of the final pretrial order should be provided to Mr. Gee. At the Court's direction, the parties have amended their exhibit lists and the proposed final pretrial order. 2. JURISDICTION A. United States' statement of jurisdiction The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1345 and 18 U.S.C. §§ 3613 and 3664. B. Mr. Overley's statement of jurisdiction Mr. Overley takes the position that the Court is entitled to consider additional facts, such as those provided in his summary-judgment motion, to determine whether any of the claimed bases for subject-matter jurisdiction under the circumstances of this case. Based upon the arguments set forth in his motion to dismiss the amended complaint and his motion for summary judgment, Mr. Overley contends there are sufficient facts before the Court to conclude that it lacks subject-matter jurisdiction to impose a constructive trust over his residence or otherwise to transfer ownership of the home to the plaintiff or to co-

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defendant St. Germain. Specifically, the plaintiff, the government of the United States, has no standing, on behalf of Mr. St. Germain's crime victim, to seize ownership of Mr. Overley's home when the only theory it has advanced for that seizure--notwithstanding the Court's April 4, 2005, Order--is alleged "fraud" against the crime victim and an alleged "civil conspiracy" between Mr. Overley and Mr. St. Germain to "defraud" the crime victim. Put another way, although plaintiff has two equitable claims remaining--declaratory judgment and constructive trust--the theory underlying these claims or, liability, is premised on the notion that Mr. Overley and Mr. St. Germain, together and individually, "defrauded" the crime victim by hiding or helping to hide Mr. St. Germain's assets. In Mr. Overley's view, that cannot form the basis for the equitable relief plaintiff seeks. C. Mr. St. Germain's statement of jurisdiction The Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. §1345 and 18 U.S.C. §§3613 and 3664. 3. CLAIMS AND DEFENSES A. The United States asserts its claims, facts and legal theories as follows:

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Randy Overley ("Overley"), among other things, facilitated and assisted David B. St. Germain ("St. Germain") in a fraudulent scheme to conceal assets and income from the United States Probation Office. The twin goals of the scheme were to enrich themselves and deny restitution payments to St. Germain's crime victim. Overley continues to benefit from that scheme by residing in a newly constructed luxury home in Franktown Colorado. The United States' Complaint, pursuant to the Declaratory Judgment Act, 28 U.S.C. 2101, et seq., seeks the Court to declare St. Germain the true owner or, in the alternative, at least a 50% owner of that luxury home. The United States seeks the sale of the property in order to satisfy the unpaid balance of the restitution owed to St. Germain's crime victim, which currently stands at $320,000.00. Additionally, the United States requests that the Court impose a constructive trust for the benefit of St. Germain's crime victim. In that regard, the United States contends that 100% of the equity up until $320,000.00 be declared as held in constructive trust. The constructive trust is created by operation of law at the moment Overley and St. Germain initiated the fraud scheme to conceal St. Germain's activities, income, and assets from the United States Probation Office. See Gray v. Paxton, 62 P.2d 1105, 1107 (Colo. App. 1993) (constructive trust commences at the moment

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fraud arises). That fraud scheme began in March 1997 when Overley falsely stated to Untied States probation officers that he employed St. Germain and continued until the Court revoked St. Germain's supervised release in February 2001. It was during this period that St. Germain arranged to secretly acquire, finance, and build the luxury home in Franktown, Colorado. In short, that luxury home is the fruit of St. Germain and Overley's fraud against the Court, United States, and the crime victim. This Court's April 2005 decision stated that if legal title to the luxury home in Franktown Colorado is in Overley's name, and "equitably or in good conscience that title, or some portion of it, should be in the name of defendant St. Germain and therefore subject to attachment for the purposes of enforcing the restitution order, then a constructive trust may be imposed." See United States v. St. Germain and Overley, 363 F. Supp. 2d 1293, 1298 (D. Colo. 2005). The United States contents the facts, and justice, demand the Court to impose that constructive trust. B. Mr. Overley asserts his defenses, facts and legal theories as follows:

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Mr. Overley contends that the following facts are not in dispute, or should not be in dispute, and support his defenses. Messrs. Overley and St. Germain in 1999 entered into an oral contract to build a log home. Mr. Overley was to secure a $330,000 construction loan; Mr. St. Germain was to supervise the construction of the home, pay for any construction costs exceeding $330,000 and, after completion of the home, pay rent to Mr. Overley in the amount equivalent to the mortgage payments on the home. By January 2000, Mr. St. Germain ceased all activities relating to the log home. At that time, the log home had a negative net value--the encumbrances on the home exceeded its market value. Mr. Overley made the decision to complete the log home, undertaking all risks associated with that decision. Between January 2000 and June 2003, when plaintiff commenced this action, Mr. Overley had expended more that $225,000 on the log home, not including the $330,000 loan on which he alone was and is responsible for repayment. Between January 2000 and the commencement of this action, neither Mr. St. Germain nor the plaintiff made any claim on the home. By January or February 2000, Mr. St. Germain had disclosed to the plaintiff all details of his agreement with Mr. Overley. Between January 2000 and the commencement of this action, Mr. St. Germain and his attorney repeatedly

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implored the plaintiff to commence this action; yet, plaintiff did not commence this action until well after Mr. Overley's decision to complete the log home and his expenditure of hundreds of thousands of dollars of his own money toward construction and completion of the log home. 1. For the reasons set forth above, Mr. Overley contends plaintiff lacks standing to bring or maintain this action as to the two remaining claims. 2. For the reasons set forth above, Mr. Overley contends that the Court lacks subject-matter jurisdiction over plaintiff's remaining claims. 3. Mr. Overley understands that plaintiff is not taking the position that the oral contract between Mr. Overley and Mr. St. Germain is or should be enforced by this Court. To the extent plaintiff is requesting such enforcement, Mr. Overley would continue to assert the contract defenses set forth in his Answer: statute of frauds; impossibility of Mr. St. Germain's performance; intervening and/or supervening acts of third parties--i.e., the United States Probation Office--preventing the performance of the contract; failure to mitigate damages; statute of limitations; estoppel; Mr. St. Germain's fraud against Mr. Overley; the

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contract is unenforceable as against public policy; Mr. St. Germain materially breached the contract prior to any alleged breach by Mr. Overley. 4. To the extent plaintiff seeks relief including constructive trust or other effective transfer or deprivation of any portion of Mr. Overley's ownership interest in the log home, Mr. Overley asserts the Fifth Amendment as a defense. 5. To the extent plaintiff's equitable claims are infected by Mr. St. Germain's unclean hands, Mr. Overley asserts the "unclean hands" doctrine as a defense. 6. Mr. Overley contends that plaintiff (and Mr. St. Germain, to the extent any relief is contingent on him) has waived any claims it may have had against Mr. Overley. The waiver occurred over at least a 3½-year period--January 2000 to the commencement of this action--when both plaintiff and Mr. St. Germain watched idly while Mr. Overley completed construction of the log home, expending hundreds of hours of his own time, more than $225,000 of his own money and hundreds of thousands of dollars in loan proceeds.

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7. Mr. Overley contends plaintiff's remedies should be barred or reduced because of its failure to mitigate. 8. Mr. Overley contends plaintifef's claims are barred by laches and estoppel because of its failure to take action before Mr. Overley, changed his position to his detriment by, among other things, investing hundreds of thousands of dollars into completion of the log home. 9. Mr. Overley contends plaintiff's claims are barred because it and Mr. St. Germain abandoned any of Mr. St. German's alleged investment of monies into the log home project. C. Mr. St. Germain asserts his defenses, facts and legal theories as follows: During the Spring of 1997, Randy Overley joined me in a scheme to conceal from the United States Probation Office my activities, income, and assets. At that time, Overley requested I consider him as a potential investor in any real estate and business opportunities I become involved in. Overley also indicated that he would benefit from tax deductions he could claim for falsely representing that he employed me. I kept Overley informed of many real estate and business opportunities I participated in. One such opportunity was the luxury home he

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now resides in. Our join fraud against the United States Probation and my crime victim allowed me to secretly acquire, finance, and construct a luxury home in Franktown, Colorado. The Honorable Judge Edward Nottingham revoked my probation and resentenced me to three five-year terms of incarceration to be served consecutively to be followed by five years of probation. The Court, however, informed me that the lengthy sentence may be substantially reduced if I assisted the United States Attorney's Office to recover assets and money for my crime victim. Since February of 2001, I have assisted the United States' effort to capture assets and monies for my crime victim. I provided information that resulted in the recovery of $160,000 from a former criminal co-defendant, Joseph Coakley, and $90,000 from Scott Lambert, a business associate and coconspirator of Overley and myself. The complaint in this proceeding is based upon information obtained from me, as well as that from the United States' investigation. I intend to serve as a cooperating witness for the United States at trial. As a result of this cooperation, the Honorable Judge Nottingham reduced my sentence to time served and I currently serve a five year probation sentence.

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4. STIPULATIONS The parties stipulate to the following facts, evidence and laws: A. The home that is the subject of this action is located at 975 N. Castlewood Canyon Drive, Franktown, Colorado. Mr. Overley resides in the home. B. In 1995, Mr. St. Germain was convicted of nine felony counts--seven counts of bank fraud, one count of conspiracy, and one count of making a false statement. He was sentenced to one year imprisonment and five years probation. C. Among the probation conditions were the following: Mr. St. Germain was prohibited from participating in any real estate transactions without advance approval from the probation office; he was required to report truthfully any information requested by the Probation Office, including his employment and income; he was prohibited from participating in any new loans without the advance approval of the Probation Office. The specific details of the conditions are set forth in judicial orders that will be introduced by one or more of the parties. 5. PENDING MOTIONS

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Two motions are pending before the Court. Mr. Overley's Motion for Summary Judgment was filed July 22. The United States' response was filed August 11, 2005. Mr. Overley's reply will be filed on August 26. On August 23, 2005, the plaintiff moved to continue the trial and trial preparation conference for 30 days. Mr. Overley opposes the motion and will file a response by the week of August 29. Mr. Overley has also requested (a) leave to submit a trial brief and (b) oral argument on the motion for summary judgment. 6. WITNESSES A. Non-Expert witnesses to be called by each party: 1. Plaintiff's witnesses who will be present at trial: a. Michael Wilson (address previously provided to all parties). Mr. Wilson will testify about how Randy Overley ("Overley") facilitated and assisted David B. St. Germain ("St. Germain") in a fraudulent scheme to conceal St. Germain's activities, assets and income from the United States Probation Office. Probation Officer Wilson's testimony will touch upon his supervision of St. Germain during probation; the nature, circumstances and situation in which Overley made false statements to him and the United States Probation Office; his investigation of Overley and St. Germain's scheme; and the revocation proceedings involving St. Germain including statements made by Overley and his attorney during that process. Finally, Probation Officer Wilson will testify about St. Germain's secret acquisition, financing and construction
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of the luxury home in Franktown, Colorado and that this secret acquisition was only one element of St. Germain and Overley's fraud scheme against the Court, the United States Attorney's Office, and St. Germain's crime victim. b. Randy Overley (address previously provided to all parties). Mr. Overley's testimony will reveal he encouraged, facilitated, and assisted St. Germain in a fraudulent scheme to conceal St. Germain's activities, assets and income from the United States Probation Office. The central goal of his participation in that fraud scheme was to enrich himself. Although the Court revoked St. Germain's probation for his participation in that scheme, Overley continues to benefit by residing in a newly constructed luxury home in Franktown, Colorado while St. Germain's crime victim is owed approximately $320,000 in restitution. Moreover, Overley's testimony will reveal the conspiracy between him and St. Germain extended from March 1997 through January 2001 when Overley provided immunized testimony regarding the fraud scheme. Overley's testimony will also reveal he falsely testified under a grant of immunity. Finally, Randy Overley's testimony will reveal that he served as a straw for St. Germain in the finance, purchase and acquisition of the personal and real property. c. Kim Brack. Ms. Brack's testimony will reveal how Overley managed to operate a complex and sophisticated scheme against the United States Probation Office. Kim Brack will testify about her knowledge and role in that sophisticated fraud, which extended from March 1997 through January 2001. Kim Brack will also testify about St. Germain and Overley's construction of the luxury home in Franktown, Colorado. d. Nadine Overley (address previously provided to all parties). Ms. Overley's testimony will reveal how Overley managed to operate a complex and sophisticated scheme against the
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United States Probation Office. Nadine Overley will testify about her intimate knowledge and role in Overley and St. Germain's fraud scheme against the United States Probation Office that extended from March 1997 through January 2001. Nadine Overley will also testify about her knowledge regarding St. Germain and Overley's construction of the luxury home in Franktown, Colorado. e. Leslie Parker (address previously provided to all parties). Ms. Parker's testimony will reveal the relationship between co-conspirators Overley, St. Germain and Scott Lambert. All three assisted, encouraged and facilitated St. Germain's efforts to conceal his activities, income and assets from the United States Probation Office. She will also testify about the sham job that Overley created for St. Germain, which induced the United States Probation Office to grant St. Germain's request to move from Massachusetts to Colorado. f. Scott Lambert (address previously provided to all parties). Mr. Lambert's testimony will reveal he was a co-conspirator, along with St. Germain and Overley to conceal St. Germain's activities, income and assets from the United States Probation Office. Lambert's testimony will reveal the close personal and financial relationship between St. Germain, Overley and himself. Lambert's testimony will also reveal that St. Germain used the Dyman Properties account to conceal his money. g. Larry Overley (address previously provided to all parties). Mr. Overley's testimony will reveal that St. Germain contracted for him to excavate the property for the foundation of St. Germain's luxury home. That testimony will also reveal that Larry Overley was knowledgeable of his brother's and St. Germain's scheme to conceal St. Germain's activities, income, and assets from the United States Probation Office. Like his brother, Larry Overley sought to profit from this situation by requesting that St. Germain pay him in cash for
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his company's excavation of the property(unreported income). h. David St. Germain (address previously provided to all parties). Mr. St. Germain will testify that Overley encouraged and facilitated his efforts to conceal his activities, income, and assets from the United States Probation Office. In return, St. Germain provided Overley with real estate and business opportunities. Within this illegal framework, St. Germain promised Overley a 50% equity interest in the luxury home located in Franktown, Colorado. In short, this testimony will reveal Overley's interest in the luxury home is solely derived from his participation in the fraudulent scheme. i. Sean Nixon (address previously provided to all parties). Mr. Nixon's testimony will reveal that St. Germain arranged for the financing of the purchase of the real property, as well as the construction of the luxury home. j. Shane Hand (address previously provided to all parties). Mr. Hand's testimony will reveal that St. Germain sought and hired him to construct the luxury home. k. Kathy Keenan (address previously provided to all parties). Ms. Keenan's testimony will reveal that Overley made false statements to her regarding St. Germain's employment with his company, Computer Creative Packaging and Design. Keenan will also testify about Overley's participation in a scheme to defraud the United States Probation Office in order to have St. Germain transferred from Massachusetts to Denver, Colorado. l. Max Coleman. Mr. Coleman's testimony will reveal that St. Germain directed, oversaw and coordinated the construction of the luxury home.

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2. Mr. Overley's witnesses who will be present at trial: a. None. While Mr. St. Germain does not intend to call any witnesses, he reserves the right to cross-examine witnesses. B. Witnesses who may be present at trial: 1. Plaintiff's witnesses: a. None 2. Mr. Overley's witnesses, along with a brief summary of their expected testimony: a. Randy Overley. Mr. Overley may testify about all aspects of the log home, including the following: his 1999 agreement with Mr. St. Germain; the construction loan; the construction of the log home; the financing of the construction; the termination of Mr. St. Germain from the log home project; his contribution of monies to complete, finish and decorate the log home; his contribution of skill and time to complete the log home; his reliance on plaintiff's inactivity relating to any interest it claimed to have; the lack of notice from plaintiff that it claimed a 100 percent or 50 percent interest in the log home; his prejudice and change in position since January 2000. b. Shane Hand (address previously provided to all parties) (Mr. Hand may be called to testify for Mr. Overley's defense only if deemed necessary after the government rests). Mr. Overley anticipates that Mr. Hand will testify about his role in the construction of the Franktown log home, the status of the
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construction of the home at various points between the time he started working on the home until the time he ceased working on the home, his knowledge of Mr. St. Germain's involvement with the construction project, the value of the log home in January 2000, factors that would be considered in determining its value in January 2000, and the process of building a log home. c. Sean Nixon, c/o FirstBank of Castle Rock (address previously provided to all parties) (Sean Nixon may be called to testify for Randy Overley's defense only if deemed necessary after the government rests). Mr. Overley anticipates that Mr. Nixon may testify about the construction loan to Mr. Overley, expenditures relating to loan, and the construction of the log home. d. Larry Overley (address previously provided to all parties) (Larry Overley may be called to testify for Randy Overley's defense only if deemed necessary after the government rests). Mr. Overley anticipates that Mr. Larry Overley may testify about his participation in the log home project, his interactions with Mr. St. Germain, and his contribution of labor and materials to the log home. e. Scott Lambert (address previously provided to all parties) (Mr. Lambert may be called to testify for Mr. Overley's defense only if deemed necessary after the government rests). Mr. Overley anticipates that Mr. Lambert may testify about his relationship with Mr. St. Germain, and about checks that contain his signature and that were submitted by Mr. St. Germain as "evidence" of monies Mr. St. Germain allegedly contributed to the log home. C. Expert witnesses who will be present at trial 1. Plaintiff's expert witnesses:
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a. None. 2. Mr. Overley's expert witnesses: a. None. D. Expert witnesses who may be present at trial: 1. Plaintiff's expert witnesses: a. None. 2. Mr. Overley's expert witnesses, along with a brief summary of their expected testimony: a. James D. Power (address previously provided to all parties). Mr Overley anticipates that Mr. Power may testify in accordance with his expert report, that if the log home were completed in January 2000 it would have had a market value of $430,000. Because it was not complete, its market value was significantly less. b. Harold S. McCloud (address previously provided to all parties). Mr. Overley anticipates that Mr. McCloud may testify in accordance with his expert report, as follows: In January 2000, the log home had a negative net market value. c. John Butler (address previously provided to all parties). Mr. Overley anticipates that Mr. Butler may testify that it makes no economic sense to permit Mr. St. Germain to share in any value of the home after January 2000, when he was no longer a participant in the construction or financing of the log home; in the event the plaintiff urges enforcement of any "contract" between Mr. Overley and Mr. St. Germain, and the Court were to entertain this theory, Mr. Overley would be entitled to
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the benefit of his bargain--namely, a 50 percent interest in the equity value of a completed log home into which he was required to contribute $330,000 and nothing more, either in terms of money or time. 7. EXHIBITS United States' and Mr. Overley's exhibit lists are attached as EXHIBITS A & B. The parties exchanged trial exhibits on August 25, 2005. The parties shall exchange demonstrative exhibits by September 6, 2005. A joint exhibit list will be submitted to the Court at the commencement of trial. Mr. St. Germain has not submitted any exhibits. 8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES The United States and Mr. St. Germain raise no special issues. Defendant Overley believes there are special or unusual issues of law that the Court may wish to consider before trial: As the Court suggested in its April 4, 2005, Order sua sponte striking plaintiff's jury demand after dismissing the fraud and civil conspiracy claims and leaving intact the declaratory-judgment and constructive-trust claims, the Court is sitting in equity on the remaining claims. Mr. Overley believes there are no material issues of fact in dispute on the question
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of liability. The dispositive question is, to what extent did Mr. Overley's actions or Mr. St. Germain's actions entitle Mr. St. Germain, and therefore the crime victim, to some interest in the log home? A number of legal issues may be dispositive of the entire action or of discrete portions of the action: A. As set forth in Mr. Overley's Motion for Summary Judgment, the facts in this case strongly suggest laches applies. Specifically, because of Mr. Overley's change of position resulting from plaintiff's inequitable delay in commencing this action, this Court should find laches and bar any relief to plaintiff. B. It is or should be undisputed that, no later than January 2000, codefendant St. Germain ceased any activities relating to the log home at issue. That is, Mr. St. Germain no longer was involved in any aspect of the construction or the financing of construction of the log home--or anything else relating to the log home. Mr. St. Germain admitted this in his sworn deposition testimony, as set forth with greater particularity in Mr. Overley's summary-judgment motion. The issue arises: When Mr. St. Germain ceased in January 2000 any further contributions to the log home, can he (or his crime victim) lawfully be entitled to

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any value caused by Mr. Overley during the period January 2000 to the present? This legal question is related to others that follow below. C. It will be undisputed at trial that, as of January 2000, the log home was not complete. In fact, it was a log home shell--it had a foundation, walls and a roof but little else. It further will be undisputed at trial that the unfinished log home shell in January 2000 had a negative net value, i.e., it had no equity. Mr. Overley has endorsed an expert witness-appraiser who will testify to the foregoing. The plaintiff has no expert witness-appraiser, and will not be introducing any expert testimony on this subject. Accordingly, plaintiff at trial will be unable to establish that the log home in January 2000 had any equity to which Mr. St. Germain's crime victim would be entitled. Because Mr. Overley was exclusively responsible for any value added to the home after January 2000, neither the plaintiff nor Mr. St. Germain nor his crime victim is entitled to any of this added value. There will be no expert testimony--from either side--on the current value of the log home. D. Plaintiff's position that it--and the crime victim--is entitled to 100% or, in the alternative, 50% of the log home's current market value is wholly inconsistent with the Takings Clause. It is constitutionally impermissible for the

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government to effect a transfer of private property interests from one person to another when the latter has no factual or legal basis to make a claim on that property interest, here, the added value caused exclusively by Mr. Overley. Mr. Overley respectfully suggests that the vast majority of plaintiff's proposed testimonial and documentary evidence is irrelevant because it does not bear on the question whether plaintiff through Mr. St. Germain gained some cognizable interest in the log home and, if so, what is the nature and value of that interest. 10. SETTLEMENT The undersigned counsel for the parties and Mr. St. Germain certify that: A. Counsel for the plaintiff and Mr. St. Germain met by telephone on August 1, 2005, to discuss in good faith the settlement of the case. (Mr. Overley's counsel cannot certify such a meeting because he was not present.) Counsel for Mr. Overley and plaintiff's counsel on August 1, and previously, have engaged in settlement discussions. B. The participants in the settlement conference included counsel for the plaintiff and Mr. St. Germain. (Mr. Overley's counsel cannot certify such a conference because he was not present.)

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C. The parties were promptly informed of all offers of settlement. D. Counsel for the parties and Mr. St. Germain do not intend to hold future settlement conferences. E. It appears from the discussion by all counsel and Mr. St. Germain that there is no possibility of settlement. F. Counsel for the parties and Mr. St. Germain considered A.D.R. in accordance with D.C.Colo.LCiv.R. 16.6. 11. OFFER OF JUDGMENT Counsel and Mr. St. Germain acknowledge familiarity with the provisions of Federal Rule of Civil Procedure 68 (Offer of Judgment). Counsel have discussed it with the clients against whom claims are made in this case. 12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to

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the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER PREPARATION PROCEEDINGS A. Trial is to the Court. B. The estimated trial time is four days. C. The situs of the trial is the United States District Court for the District of Colorado, Alfred A. Arraj U.S. Courthouse, 901 19th Street, Denver, Colorado 80294.

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DATED this _____ day of August 2005. BY THE COURT:

United States Magistrate Judge Approved as to Form:

s/ Ty Gee Ty Gee HADDON, M ORGAN, M UELLER, JORDAN, M ACKEY & FOREMAN, P.C. 150 East 10th Avenue Denver, CO 80203 (303) 831-7364 facsimile (303) 832-2628 Attorneys for Defendant Randy Overley Defense counsel has provided a copy of this document to plaintiff's counsel. As of the date and time this was filed, defense counsel had not received permission to sign on plaintiff's behalf. Christopher Alberto Special Attorney for the United States United States Attorney's Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 (617)748-3100 facsimile (617) 748-3972 Attorney for Plaintiff

According to Mr. Alberto, David St. Germain has given Ty Gee the authority to sign on his behalf s/David St. Germain David B. St. Germain 16300 Ledgemont Lane, Unit 2504 Addison, TX 75001 Pro Se Defendant

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Certificate of Service I hereby certify that on August 25, 2005, I electronically filed the foregoing Final Pretrial Order with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Christopher Alberto, Esq. Special Attorney for the United States United States Attorney's Office 1 Courthouse Way, Suite 9200 Boston, MA 02210 [email protected]; s/ Jennifer Bell and I hereby certify that I have mailed or served Final Pretrial Order to the following non CM/ECF participant via U.S. Mail: David B. St. Germain 16300 Ledgemont Lane, Unit 2504 Addison, TX 75001 s/ Jennifer Bell

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