United States District Court, D. Colorado
OPINION AND ORDER ADDRESSING OUTSTANDING
S. Krieger Senior United States District Judge
MATTER comes before the Court pursuant to Ms.
Schmid's Motion to Reconsider and Motion to Withdraw
Consent (# 163), and the Government's
response (# 173); and Mr. Seltzer's
Motion to Withdraw Consent (# 165).
April 24, 2018, the Defendants were charged in a multi-count
Indictment (# 21) with various controlled
substances offenses under 21 U.S.C. § 841. Consistent
with the Grand Junction Protocol that applies to this case,
all of the Defendants in this case signed a consent form (Ms.
Schmid #28, Mr. Seltzer #
29), reflecting their agreement that: (i) the
Magistrate Judge could “set pretrial deadlines,
determine any motion to continue/reschedule a trial, and set
trial in accordance with the Speedy Trial Act”; (ii)
hear and make a recommendation as to the disposition of any
pretrial motion upon the issuance of an Order of
Reference; (iii) to conduct any Change of Plea
hearings and to advise the Defendant pursuant to Fed. R.
Crim. P. 11, to issue a recommendation as to whether such a
plea should be accepted, and to schedule a sentencing
hearing; and (iv) to engage in certain post-conviction
matters if referred by the Court.
Schmid, now appearing pro se, and Mr. Seltzer have
filed motions (# 163, 165) requesting to
withdraw their consent. Neither Defendant states any grounds
nor identifies any prejudice that has resulted from their
consents or that would occur if they were not allowed to
withdraw them. In addition, Ms. Schmid requests that this
Court reconsider an Order (# 151) by the
Magistrate Judge that granted in part and denied her request
for a three-month extension of the motion deadline in this
case; the Magistrate Judge extended the motions deadline by
roughly one month instead.
first to the request to withdraw consent, the Court denies
the motions without prejudice because it is not clear which
provision(s) of the consent the Defendants wish to withdraw.
As mentioned, the consents encompass several matters, some of
which have yet to mature in this case, and it is not clear to
the Court whether the Defendants wish to withdraw their
consent to only certain issues identified in the consent form
or whether they wish to withdraw their consent as to all
more to the point, the withdrawal of a consent serves
relatively little purpose for a defendant. All of the matters
that are referred to the Magistrate Judge as a result of a
defendant's consent are matters that may be referred to a
Magistrate Judge in any event pursuant to 28 U.S.C.
§636(b)(1)(A) or (B). As such, a party - even a party
who has otherwise consented -- always has the ability to file
timely Objections to any ruling by the Magistrate Judge,
triggering the presiding Article III judge's requirement
to review and reconsider the Magistrate Judge's rulings
according to the appropriate standard. (Indeed, Ms. Schmid
has specifically filed such Objections here.) The only real
effect that consent has is to allow the Court to assume that
the party is content to let the Magistrate Judge's ruling
become a final ruling of the Court without further action
unless the party files a timely Objection. As such,
because most orders issued by the Magistrate Judge are
routine and/or not meaningfully contested, the consent
process helps expedite pretrial proceedings in the case.
Should the Court ultimately allow the Defendants to withdraw
their consent, the Court would still refer all pretrial
matters to the Magistrate Judge for initial consideration
pursuant to 28 U.S.C. § 636(b)(1), and the Magistrate
Judge would decide those matters in the first instance. But
the Magistrate Judge's rulings would instead take the
form of recommendations that this Court would consider.
Parties would still be required to file specific Objections
to each recommendation if they wished to seek reconsideration
of a particular matter, as this Court would likely review
un-objected to recommendations simply for clear error.
See e.g. Summers v. State of Utah, 927 F.2d 1165,
1167-68 (10th Cir. 1991) (“In the absence of
timely objection, the district court may review a
magistrate's report under any standard it deems
appropriate”). This may have the unfortunate effect of
prolonging pretrial proceedings in this matter due to the
Court's need to review each individual order.
the Court does not wish to discourage any Defendant from
seeking to withdraw his or her consent to the Grand Junction
protocol. Thus, Ms. Schmid or Mr. Seltzer are free to refile
their motions to withdraw on more specific terms, identifying
the particular aspect(s) of the consent forms from which they
now wish to withdraw. Should they elect to do so, consistent
with the Grand Junction Protocol's requirement that all
defendants in a multi-defendant case exercise the same level
of consent, the Court will deem all Defendants'
consent to those provisions withdrawn and will proceed
accordingly as set forth above. Accordingly, Ms. Schmid and
Mr. Seltzer's motions to withdraw are denied without
Court then turns to that portion of Ms. Schmid's motion
that requests that objects to the Magistrate Judge's
partial denial of her motion to extend the deadline for
pretrial motions. Ms. Schmid explains that she is attempting
to “refine my presentation of the issues I am asking
the Court to review in this case, ” but had (as of July
19, 2019) not yet finished. Ms. Schmid attaches, as an
exhibit to her motion, her “most recent draft” of
a motion she intends to file. Without passing on the
particular merits of that draft, the Court observes that it
is remarkably similar to Ms. Schmid's prior motion
(# 148), which Magistrate Judge Gallagher
described as “legally unintelligible” and which
Ms. Schmid herself concedes reads like a “crazy bag
lady motion” consisting of “50 pages of random
notes and thoughts.” (The “draft” attached
to Ms. Schmid's Objections now runs to 56 pages.) To the
extent Ms. Schmid contends that she needs additional time to
refine this filing, the Court rejects that request. Granting
such additional time would delay trial on behalf of all
Defendants in this matter and, based on Ms. Schmid's
prior motion and current draft, would be unlikely to result
in a motion that would be intelligible, much less have even
colorable merit. Accordingly, having reconsidered the
Magistrate Judge's July 10, 2019 Order in light of Ms.
Schmid's Objections, the Court overrules those objections
and affirms the Magistrate Judge's order.
foregoing reasons, Ms. Schmid's Motion for
Reconsideration (# 163) is treated as
Objections to the Magistrate Judge's July 10, 2019 Order.
Upon consideration of those Objections, the Court
OVERRULES them and AFFIRMS
the Magistrate Judge's Order. That portion of Ms.
Schmid's motion that seeks to withdraw her consent is
DENIED WITHOUT PREJUDICE as set forth above.
Mr. Seltzer's Motion to Withdraw Consent (#
165) is DENIED WITHOUT PREJUDICE
for the same reasons.
 The Court has issued a general Order
of Reference Order in this case. See Docket #
 Ms. Schmid's Objections also
include an indication that she intends to formulate an
argument that she should be allowed to bring a counterclaim
against the U.S. Government in this criminal case, and a
request for certain discovery from the Government. The
Magistrate Judge's Order did not strictly address these
issues. The Court denies Ms. Schmid's request for
additional time to devise an argument in order to assert a
counterclaim, as the Court finds that such a request would be
legally frivolous. Nothing in the Federal Rules of Criminal
Procedure contemplate a method for a defendant to
counterclaim against the United States in the course of a
criminal proceeding. To the extent Ms. Schmid believes that
she has colorable claims that may be asserted against the
Government, she may file an appropriate civil suit to that
effect. To the extent that she may have colorable affirmative
defenses that she can assert to the charges in this case, she
may take whatever steps may be required by the Federal Rules
of Criminal Procedure to assert those defenses.
As to Ms. Schmid's request for certain additional
discovery, the Government has responded that no documents of
the type requested by Ms. Schmid exist. Absent a further
showing by Ms. Schmid that refutes the Government's