Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2918

Filed 05/10/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD-2 UNITED STATES OF AMERICA, Plaintiff, v. 2. RUDY CABRERA SABLAN, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE REGARDING VICTIM IMPACT EVIDENCE

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, responds as follows to defendant Rudy Sablan's Motion in Limine Regarding Victim Impact Evidence: 1. The Federal Death Penalty Act expressly allows for victim impact evidence. "The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim's family, and any other relevant information." 18 U.S.C. § 3593(a).

Case 1:00-cr-00531-WYD

Document 2918

Filed 05/10/2008

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2.

The Tenth Circuit has recently discussed victim impact evidence under the

Federal Death Penalty Act. In United States v. Barrett, the Court of Appeals analyzed victim impact provisions of § 3593(a) as follows: Two features of this statutory language are important to note. First, it expressly indicates that a victim impact statement may identify the victim and outline the extent and scope of the injury and loss suffered by the victim and his family. Second, and perhaps more importantly, the use of the phrases "may include" and "any other relevant information" clearly suggests that Congress intended to permit the admission of any other relevant evidence, including, as authorized by Payne, evidence giving the jury a glimpse of the victim's personality and the life he led. Indeed, this court and others have expressly approved the admission of such evidence. 496 F.3d 1079, 1099 (10 th Cir. 2007) (citations omitted). In Barrett, the Court of Appeals approved the following types of victim impact evidence: (1) testimony of a friend of the victim who testified about travels with the victim, the connection his family and the victim's family had, and the impact that the victim had on his life; (2) testimony from a friend and co-worker briefly explaining the personal and professional characteristics of the victim; and (3) testimony of the victim's wife describing her relationship with the victim and impact on her of the victim's death. Id. 3. However, as noted by the defendant, the Tenth Circuit has determined that three categories of victim impact evidence are not permissible: victim family members stating characterizations and opinions about (1) the crime; (2) the defendant; and (3) the appropriate sentence. Hain v. Gibson, 287 F.3d 1224, 1238-1239 (10 th Cir. 2002).

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Case 1:00-cr-00531-WYD

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4. The government does not intend to introduce any category of victim impact evidence prohibited by Hain v. Gibson. Respectfully submitted this 10th day of May, 2008. TROY A. EID United States Attorney

BY: s/Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

BY: s/Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0403 E-mail address: [email protected] Attorney for Government

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Case 1:00-cr-00531-WYD

Document 2918

Filed 05/10/2008

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CERTIFICATE OF SERVICE I hereby certify that on this 10th day of May, 2008, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION IN LIMINE REGARDING VICTIM IMPACT EVIDENCE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses:

Attorneys for Rudy Sablan Donald R. Knight [email protected] Forrest W. Lewis [email protected]

By: s/Valerie Nielsen VALERIE NIELSEN Legal Assistant 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0406 E-mail: [email protected]

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