Since April 27, 1984, the defendants herein have filed numerous motions which have not yet been scheduled for hearing, pending the Court's ruling on the Motion to Dismiss the Indictment Disqualify Government Counsel and Investigators, and Suppress Evidence Based on Violations of the Attorney-Client Privilege (Paper 20), filed on behalf of defendants, Omni International Corporation, Wayne J. Hilmer, Evan T. Barnett and Thomas A. Westrick, Jr., and the Motion of Defendant Joseph P. Bornstein to Dismiss the Indictment on Grounds of Abuse of the Grand Jury Process and Governmental Misconduct, and seeking alternate relief (Paper 45). By previous Orders of Court (see Paper 28 and Order entered immediately prior to this Order), the periods of time from April 13, 1984 to January 7, 1985 and from January 7, 1985 to June 25, 1985, have been determined to be excludable time within the meaning of the Specdy Trial Act, 18 U.S.C. § 3161. The time from June 25, 1985 to the date of this Order is also excludable under 18 U.S.C. § 3161 (h) (1) (F) because of the pending motions.

Accordingly, IT IS, this 15th day of May, 1986, ORDERED that the period of time from June 25, 1985 to the date of this Order shall be excludable time within the meaning of the Speedy Trial Act, 18 U.S.C. § 3161 (h) (1) (F).

Warin I. film

Walter E. Black, Jr.
United States District Judge

This matter having come before the Court upon the

Motion of the Omni defendants, Omni International Corporation, Kayne J. Hilmer, Evan T. Barnett, and Thomas A. Restrick, Jr. for a determination that the period of time from January 7, 1985 up until June 25, 1985 shall be excludable time within the meaning of the Speedy Trial Act, 18 U.S.C. § 3161 (h) (8) (A) (see Paper 135); defendant Joseph P. Bornstein having concurred in his Statement (Paper 1

IT IS, this 15th day of May, 1986,

ORDERED, that the period of time from the original trial date of January 7, 1985 up until June 25, 1985, the date scheduled for oral argument on Defendants' Motion to Dismiss the Indictment, Disqualify Government Counsel and Investigators, and Suppress Evidence Based On Violations of the Attorney-Client Privilege (Defendants' Joint Pretrial Motion Number 3), shall be excludable time within the meaning of the Speedy Trial Act, 18 U.S.C. § 3161 (h) (8) (A). The ends of justice outweigh the interest of the public and the defendants in a speedy trial

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Criminal No. B-94

for the reasons that: the Motion to Dismiss in this multi-
defendant, multi-count conspiracy case is unusual and complex.
Establishing the evidentiary basis for the Motion has neces-
sitated almost thirty days of testimony and hearings, spanning
nine months and generating approximately 5500 pages of
transcript and several hundred exhibits; and a detailed
review of the evidence was necessary for the parties to
submit proposed findings of fact and conclusions of law

relevant to this threshold and potentially dispositive pretrial
Motion.

WALTER E. BLACK, JR.

United States District Judge

STATEMENT OF HON. FRED M. WINNER, PARTNER, BAKER & HOSTETLER, DENVER, CO

Judge WINNER. Thank you, Senator. I was not asked to and I have not prepared any formal statement. I think I should explain how I stumbled into the Kilpatrick case.

I had announced that I thought it was time for me to leave the bench, and I was cleaning up matters. Judge Kane called and told me that he had a very simple little case to try, that he had disposed of 26 of the 27 counts, and would I mind handling a run-ofthe-mill obstruction of justice case. And I said: No, not at all. That is all right, if you are sure it is simple.

Well, it didn't turn out that way. The case was prosecuted, as I mentioned in my opinion, by attorneys not part of the U.S. attorney's office in Colorado. I said in my opinion, and I wish to emphasize as much as I can, that the U.S. Attorney's Office in the District of Colorado did absolutely nothing, as to which I have any criticism whatsoever; but it is a practice of the Department of Justice and I can understand it-that complex tax cases are to be prosecuted by the Tax Division of the Department of Justice. And indeed, that is why they handled this case.

But they threw in the one tag-end count, obstruction of justice, and all of the tax counts had been dismissed by Judge Kane. The case had its problems, but they were not overwhelming. I could live with them. And the case went on for several days with a given amount of bickering among the lawyers. The jury was obviously troubled, as was evidenced by a question they submitted during their deliberations.

The U.S. Supreme Court has cautioned about answering questions from the jury and not doing it without the defendant and counsel for both sides being present. So, I asked that we have a hearing in open court; we did have, and counsel for the Government was there, the defendant was there, and defense counsel were there. And to my amazement, we were able to agree upon an answer with which they all could live.

That answer was given to the jury and I then received a telephone call ordering me to tell the jury to quit deliberating because one of the other Government lawyers didn't like the answer. So, that is the way the case wound up.

As I say, the jury deliberated for a substantial period of time, and they convicted Mr. Kilpatrick of the obstruction of justice case. I had given a long look at a motion for a directed verdict, but I had concluded that there was no way that a directed verdict could be granted. There was one witness in the case who, if his testimony was believed, Mr. Kilpatrick was guilty; that particular witness was a two- or three- or four-time loser. I have forgotten which, but he had quite a record; but in any event, the jury believed him.

In the course of the posttrial hearings, defense counsel convinced me that I had made a mistake in one of the rulings on evidence during the trial. I had ruled out testimony concerning compulsions put on a witness because I thought they were not matters for the jury to consider but, later, I looked up a substantial amount of law on it and I found out that I was dead wrong, that that testimony

should have been received because it went to the credibility of that witness.

I felt that it was a close case, and I granted the motion for a new trial. I at no time made any ruling on prosecutorial misconduct. The only thing I actually did in the case was to grant a motion for a new trial because of what I thought was error-well, it was committed by me, but I assure you it was invited by the prosecution. They sure didn't want that testimony blocked.

But anyway, I very much wanted to get on with the posttrial motions. I had written the opinion. I wrote it in San Francisco, where I was sitting looking out over the bay, dreaming about where I used to fly a blimp over the bay. Every time I would see a blimp, I would get homesick. I wrote the opinion. I came back, and we set the hearing.

It was obvious from the outset that Government counsel were essential witnesses. I asked at the start of the hearing: Gentlemen, under the Code of Professional Responsibility, do you think you should continue with this case as counsel when you are going to have to testify? And they told me that they had discussed the matter with higher-ups, and there was nothing wrong with it.

We started the hearing, and all of a sudden, there was a 180degree turn. And they said: No; they had decided they could not conduct the hearing, that they were going to have to testify; and Mr. Charles Alexander came out to handle the case. I have had experience with Mr. Charles Alexander for many years. I deem him to be one of the finest lawyers I have ever met in my life. I deem him to be a real credit to the Department of the Justice and the Tax Division and to the bar. He is a fine gentleman, and nothing I say should in any way be thought to be directed to Mr. Alexander. I wanted very much to hear the testimony of the lawyers concerning matters which allegedly took place before the grand jury. For one reason or another, although they were in Denver, they did not ever testify. I then wrote the opinion in which I granted the new trial and in which I said there was going to have to be further testimony but that I was leaving the bench and that I was going to get even with Judge Kane. So, I assigned the case back to Judge Kane for him to wind up. I made absolutely no findings as to prosecutorial misconduct. All I did was to say that there was a tremendous amount of smoke and that the time had come for someone to decide whether there was any fire.

Judge Kane commented on one thing in his opinion that troubled me deeply. I had said in the first instance that I wanted to review the grand jury transcripts, and there were two file drawers of transcripts; and I can't say that I studied them-I scanned them but I had ordered that all the grand jury transcripts be turned over to

me.

And I then ordered that, because of the showing which had been made, all grand jury transcripts should be turned over to defense counsel, subject to some very severe limitations and restrictions. Judge Kane's opinion recites that, to his surprise, and certainly to mine, all grand jury transcripts were not turned over to me, nor were they turned over to defense counsel, and that the missing portions of the transcripts, he found to be "unusual," or some such word. I have never seen it; I don't know.