Free Transcript - District Court of Colorado - Colorado

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1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ____________________________________________________________ INITIAL APPEARANCE vs. SCOTT KIMBALL, et al., Defendants. ____________________________________________________________ Proceedings before CRAIG B. SHAFFER, United States Magistrate Judge, United States District Court for the District of Colorado, commencing at 3:42 p.m., March 27, 2006, in the United States Courthouse, Denver, Colorado. ____________________________________________________________ WHEREUPON, THE ELECTRONICALLY RECORDED PROCEEDINGS ARE HEREIN TYPOGRAPHICALLY TRANSCRIBED... ____________________________________________________________ APPEARANCES HABIB NASRULLAH and JUDY SMITH, Assistant United States Attorneys, appearing for the government. No appearance for the defendants. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 03-cr-00023-MSK and 06-mj-01051 ___________________________________________________________ UNITED STATES OF AMERICA, Plaintiff,

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2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P R O C E E D I N G S (Whereupon, the within electronically recorded proceedings are herein transcribed, pursuant to order of counsel.) THE COURT: In the meantime, let's call ­- and, gentlemen, I'm sorry to have to be rude, but I have three files and two defendants. Kimball? DEFENDANT KIMBALL: Yes, Your Honor. THE COURT: And Mr. Johnson? DEFENDANT JOHNSON: Yes, sir. THE COURT: All right. Let's call 03-cr-23, United States of America versus Scott Kimball, and 06-mj-1051, United States of America versus Jeffrey Johnson. appearances of counsel. MR. NASRULLAH: Good afternoon, Your Honor. Habib I'll take So it might help me if ­- Mr.

Nasrullah, Assistant United States Attorney, appearing on behalf of William Taylor on the Kimball case. MS. SMITH: And Judy Smith appearing on behalf of the government in U.S. versus Johnson. THE COURT: All right. Mr. Johnson, Mr. Kimball,

the reason I've called these two cases together is that I'm trying to avoid having one or the other of you have to sit through this dialogue three times, so bear with me because much of what I have to cover applies to each of you, so I'll

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3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 try to save you all too much repetition. Gentlemen, as I'm sure you both know, having heard my discussion with Mr. Sotelo, this is the United States District Court for the District of Colorado. You are both

here -- although under slightly different circumstances, you are both here for an initial appearance. Now, the first

thing I have to explain is that you have certain rights as a defendant. I'm sure you're aware of those rights, but let

me repeat them. You both have the right to remain silent. Under

the United States Constitution, no one can force you to testify against yourself, that's the right against selfincrimination. It's guaranteed to each of you by the Fifth Now, if you

Amendment to the United States Constitution.

give up that right, anything you say may be used by the government in prosecuting your case. Also, if you give up

the right either today or at some future time, the Court could determine that you've lost the right for all purposes relating to your case. Once it's gone, it could be

effectively gone. Now, don't volunteer any information about the allegations in your case, because if you did that you'd be waiving your right to remain silent. Do you both

understand? DEFENDANT KIMBALL: Yes, Your Honor.

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4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it? DEFENDANT KIMBALL: Yes, I did. THE COURT: And is all of this information correct? DEFENDANT KIMBALL: Yes, Your Honor. THE COURT: All right. Mr. Kimball, based upon affidavit. THE COURT: All right. The next right you have is

you each have the right to be represented by an attorney. You can go out and hire your own attorney if you want. Obviously, that attorney you would select. would represent you throughout your case That attorney but at your

expense.

If you can't afford counsel and if I'm satisfied

that you meet certain financial guidelines, I can appoint a lawyer for you. Now, the lawyer I appoint would represent

you at no cost, the government would pay for that lawyer throughout the prosecution of your case. Do you both

understand your right to be represented by counsel? DEFENDANT KIMBALL: Yes, Your Honor. DEFENDANT JOHNSON: Yes, sir. THE COURT: Now, Mr. Kimball, I have a financial It appears to have your name on it. Did you

sign this form today? DEFENDANT KIMBALL: Yes, I did, Your Honor. THE COURT: And you read it over before you signed

what I see here, it appears that you qualify for courtappointed counsel, and I'll go ahead and appoint an attorney

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5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 signed it? DEFENDANT JOHNSON: Yes. THE COURT: All right. I find that Mr. Johnson can appointed. THE COURT: Okay. anticipate my next Mr. Warren (sic), I'm sure you question. Did you sign this for you. Our records that at one time you were represented

by Ken Eichner. DEFENDANT KIMBALL: Yes, Your Honor. court-appointed CJA. THE COURT: Now, would you like me to reappoint Mr. Eichner or ­DEFENDANT KIMBALL: Yes, I would. THE COURT: All right. Nell, we'll go ahead and He was a

reappoint Mr. Eichner to represent Mr. Kimball in this case. And again, obviously, Mr. Eichner will represent you at no cost to you. Now, Mr. Johnson, do you plan to hire an attorney or would you like court-appointed counsel? DEFENDANT JOHNSON: As of right now, court

financial affidavit? DEFENDANT JOHNSON: I did. THE COURT: And is all of this information correct? DEFENDANT JOHNSON: Yes, Your Honor. THE COURT: And you read over the form before you

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6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 qualifies for court-appointed counsel. At this time, it

would be my intention to appoint the federal public defender service. MS. SMITH: Your Honor, the government anticipates there would be a conflict with the public defender's office based on another unindicted co-conspirator, and he is under complaint, however, and has been appointed a federal public defender. THE COURT: Okay. Mr. Johnson, I appreciate Ms.

Smith giving me that additional information. It's important because you're entitled to be represented by an attorney who's only loyalty is to you. DEFENDANT JOHNSON: Right. THE COURT: An attorney who has no other conflicts. To ensure that you get conflict-free representation, we will appoint an attorney from the Criminal Justice Act panel to represent you. That's a panel of attorneys who are

qualified to represent defendants here in federal court. DEFENDANT JOHNSON: Okay. THE COURT: One of those attorneys will represent you at no cost to you, all right? DEFENDANT JOHNSON: Yes, sir. THE COURT: Now, getting back to 03-cr-23. Mr.

Kimball, in your case the government is alleging violations of supervised release. Do you have a copy of that petition?

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7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it. THE COURT: You will notice that the government's alleging one or more violations of supervised release, which means that in your case what I have to have is a preliminary hearing under Rule 32.1. Now, the purpose of that hearing DEFENDANT KIMBALL: Yes, Your Honor, I have read

is for the government to come forward with some evidence from which I could conclude that there is reason to believe you violated one or more conditions of supervised release. If the government establishes probable cause, then your case would be referred to the district court for revocation proceedings. If the government doesn't establish probable

cause, then that would end the matter right there. Now, we can't have a preliminary hearing under Rule 32.1 today because you don't have your counsel present and you're entitled to be represented by counsel at the preliminary hearing. I'm going to have to give you time to

meet with Mr. Eichner to prepare for that hearing. Now, in the meantime, is the government seeking detention in this case? MR. NASRULLAH: It is, Your Honor. THE COURT: All right. Mr. Kimball, as you just

heard Mr. Nasrullah indicate, the government is seeking a detention order. The government is asking that you be held The fact

in custody pending a resolution of this matter.

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8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reasons. that the government is asking for detention does not

necessarily mean that I'm going to order detention, but what it does mean is that I have to have a hearing. Now, I can't have that hearing today for two First of all, the government is entitled by law to

a three-day continuance. The earliest that I could have the hearing in your case would be Mon' -- Thursday, March 30th. That's the earliest that I could have a detention hearing. The other consideration obviously is I can't have a

detention hearing today because you don't have a lawyer present and you're entitled to be represented by counsel at that detention hearing. I'm going to have to continue your case to give you time to meet with your attorney to prepare for a Rule 32.1 preliminary hearing and also prepare for a detention hearing. Until I can do those things, however, you'll have Do you understand?

to remain in custody.

DEFENDANT KIMBALL: Yes, Your Honor. THE COURT: Any questions at all? DEFENDANT notified of the ­THE COURT: What will happen is the clerk's office will issue an order appointing Mr. Eichner to represent you. Mr. Eichner will I'm sure get in touch with you before you're back in court next Thursday, or this coming Thursday, KIMBALL: Yes, will Mr. Eichner be

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9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 different okay? DEFENDANT KIMBALL: Yes, Your Honor. handle both hearings at the same time? THE COURT: At the same time, right. DEFENDANT KIMBALL: Thank you. THE COURT: Any other questions? DEFENDANT KIMBALL: No, Your Honor. THE COURT: You're sure? DEFENDANT KIMBALL: Yes. THE COURT: All right. Then I will continue this So we'll

matter then until Thursday, April -- I mean, Thursday, March 30. Nell, at what time? THE CLERK: I've got 10. THE COURT: 10 o'clock. Is that going to work?

MR. NASRULLAH: Yes, sir. THE COURT: All right. Mr. Kimball, I'm going to

continue your case then until Thursday, March 30 at 10 o'clock. In the meantime, I'll remand you back to the

custody of the United States marshals. THE COURT: Now, Mr. Johnson, you are here under circumstances. You are here because the

government has named you in a criminal complaint. have a copy of the criminal complaint? DEFENDANT JOHNSON: Yes.

Do you

THE COURT: Now, Mr. Johnson, if you go through the

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10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 criminal complaint, you'll notice that the criminal

complaint alleges three separate violations. The government is alleging a violation of 26 United States Code Sections 5861 and 5871. that you were Specifically, the government is alleging in possession of an unregistered short

shotgun.

The government is also alleging a violation of 21

United States Code Section 841, alleging that you were in possession with intent to distribute a controlled substance, specifically methamphetamine. And finally, the government

is alleging under 21 United States Code Section 841 another possession with intent to distribute a controlled substance. Now, you need to understand that for purposes of Count 1, that's the shotgun count, the maximum penalty under the law is not more than ten years imprisonment, a fine of $250,00, or both, not more than three years supervised release, and a $100 special assessment fee. The penalties

for the two possession counts, the penalties in those are the same, which are not less than five years and not more than 40 years imprisonment, a fine of $2 million, or both, not less than four years supervised release, and a special assessment understand? DEFENDANT JOHNSON: Yes, Your Honor. THE COURT: Okay. Do you understand the charges fee of $100. That's per count. Do you

and the penalties that apply in your case?

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11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 detention. MS. SMITH: It is, Your Honor. DEFENDANT JOHNSON: Yes, I do. THE COURT: All right. Now, Mr. Johnson, because

the government is proceeding by criminal complaint, what I have to have in your case is a preliminary hearing under Rule 5. Now, the purpose of that preliminary hearing is for

the government to come forward with evidence sufficient to establish probable cause, which again is nothing more than evidence to indicate that the offenses alleged in the complaint occurred and evidence to suggest that you are the person who committed that offense. It's not proof beyond a

reasonable doubt, it's simply probable cause. Now, if the government meets their burden of establishing probable cause, then I would refer this case to the district court for further proceedings. If the

government doesn't establish probable cause as to any of these counts, then those counts would be dismissed. understand? DEFENDANT JOHNSON: Yes, Your Honor. THE COURT: We can't have the preliminary hearing today because, again, you don't have an attorney present. I'm going to have to continue your case to give you time to meet with your attorney. I'm assuming, Ms. Smith, the government is seeking Do you

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12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Mr. Johnson, as you just heard Ms. Smith indicate, the government is seeking a detention order, which means that we will have to continue your case until Thursday, March 30th. At that time, we will have a

preliminary hearing under Rule 5 and a detention hearing. Until I can do that, however, you'll remain in custody. you have any questions? DEFENDANT SMITH: (No audible response). THE COURT: You're sure? DEFENDANT SMITH: (No audible response). THE COURT: Nell? THE CLERK: March 30th at 1:30? THE COURT: At 1:30? Okay. I will continue Mr. At Do

Johnson's case then until March 30, Thursday, at 1:30.

that time, he will be back here with counsel, and we will have a preliminary hearing and a detention hearing. In the

meantime, I remand him back to the custody of the United States Marshal. Mr. Kimball? DEFENDANT question for you. THE COURT: Sure. DEFENDANT KIMBALL: I didn't hear ­- could you tell me what the maximum punishment I would -­ could receive for my probation violation, Your Honor? KIMBALL: Yes, Your Honor, I had a

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13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Kimball? is four. THE COURT: If it was supervised release? DEFENDANT KIMBALL: Yes. THE COURT: The Court could simply ­well,

actually, it's a fair question. that. Mr. Nasrullah?

I'm not sure I can answer

MR. NASRULLAH: Your Honor, I can't answer it without knowing his criminal history ­THE COURT: Yes. MS. NASRULLAH: -­ and I don't know that.

THE COURT: Essentially what they could do is give you some term based upon your criminal history. DEFENDANT KIMBALL: I believe my criminal history I was just wondering if there was like a maximum

that was allowed by ­MS. NASRULLAH: It's a combination of the violation grade and the criminal history, so I don't know what it is off the top of my head. got a -­ THE COURT: Well, I'll tell you, what I would suggest is that's a question to ask your counsel and if your counsel can't answer it, I'm sure by the time I see Mr. Nasrullah he'll be able to answer it then. DEFENDANT KIMBALL: Thank you, Your Honor. THE COURT: Okay? Any other questions, Mr. I could look it up if someone's

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14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Bonnie Nikolas Signature of Transcriber June 5, 2008 Date I certify that the foregoing is a correct (Whereupon, the within hearing was then in Mr. DEFENDANT KIMBALL: (No audible response). THE COURT: Mr. Johnson? DEFENDANT JOHNSON: No, sir. THE COURT: All right. I'll remand Mr. Kimball and Johnson back to the custody of the United States

marshals.

conclusion at 1:58 p.m. on March 27, 2006.)

transcript, to the best of my knowledge and belief, from the record of proceedings in the above-entitled matter.

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