Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1860

Filed 08/07/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. RUDY CABRERA SABLAN, et al. Defendant. ______________________________________________________________________________ DEFENDANT RUDY SABLAN'S RESPONSE TO GOVERNMENT'S PROFFER OF PENALTY PHASE EVIDENCE (Docket # 1845) (R-58) ______________________________________________________________________________ Rudy Sablan, by and through counsel, submits the following in response to the government's proffer of penalty phase evidence. RELATIONSHIP OF THE PROFFER TO PRIOR PLEADINGS In general, Rudy Sablan incorporates by reference his Motion In Limine Regarding Convictions and Incidents Alleged in Support of Non-Statutory Aggravating Factor of Future Dangerousness (R-53) (Docket #1701). In that pleading, Mr. Sablan discussed the legal standards applicable to this evidence. He also briefly discussed specific incidents as listed in the government's Second Amended NOI. The only substantive change is the filing of a Third Amended NOI which adds a noninstitutional incident. The government had previously withdrawn all non-institutional incidents as to Rudy Sablan. This non-institutional incident will be addressed briefly herein, in the context of support for the non-statutory aggravating factor of future dangerousness.

Case 1:00-cr-00531-WYD

Document 1860

Filed 08/07/2006

Page 2 of 5

ROLE OF THE PROFFER IN RESOLVING THE ISSUES While the government's proffer is helpful in framing the issues, the Court cannot adequately perform its gatekeeping role without taking testimony from most of the proffered witnesses in the upcoming evidentiary portion of the Phase III motions. In the proffer, the government relies heavily on hearsay from correctional officers who were not eyewitnesses to the alleged incidents. Mr. Sablan wants the Court to hear and see the parties actually named in the alleged incidents to determine the issue of reliability and balance any probative value against prejudice. The government's proffer, and for that matter, anything Mr. Sablan might proffer can only assist in resolving the purely legal component of relevance. There is also a factual component of relevance which can only be resolved after a full and meaningful hearing. THE 20-YEAR-OLD GUAM ASSAULT CASE (Third Amended NOI; C1(a); 12-4-86) The government originally listed this incident as a statutory aggravating factor. The Court agreed with Rudy Sablan that this incident could not be used as a statutory aggravator because it was not a federal or state offense. The government now seeks to move this incident over into the non-statutory factor of future dangerousness. This incident occurred in a non-institutional setting. The Court addressed this issue in its July 6, 2006 Order on Phase III motions. (Docket #1836) The Court ruled that "the government must be required to evaluate future dangerousness in the context of life in a prison setting." Id., p. 15. The Court further ruled that it would "need to evaluate each incident . . . to determine whether it is relevant to the issue of future dangerousness in the context of life in prison . . ." id.

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This proffered incident which occurred twenty years ago, when Rudy was 16, is not even remotely relevant to his future dangerousness in a prison setting. It was essentially a road rage confrontation. The contact was actually initiated by the victim, Mr. Camacho. The federal presentence report in Case No. 92-00124 in the United State District Court for the District of Guam, describes this incident as follows: On December 4, 1986, a police offer was dispatched to the East Agaña Mobile Gas Station concerning an injured person. At the gas station, he observed victim Jose C. Camacho with facial and head bleeding. Witnesses informed the officer that they observed 4 individuals in a Ford sedan pull up into the gas station. They then observed Mr. Camacho drive up and inquired to the occupants of the sedan why they were trying to run him off the road. The three male individuals from the Ford got out and chased Mr. Camacho across the street toward the beach area. They then observed the 3 male individuals return running to their car and drive away. The defendant was arrested on March 4, 1987.

There were at least two other people involved. Was Mr. Sablan's plea based on complicity? Who actually hit Mr. Camacho? What caused the injuries; a blow from Mr. Sablan or someone else? Was Mr. Sablan intoxicated? Was Mr. Camacho intoxicated? It is unlikely that Rudy Sablan will be involved in many road rage incidents if he is serving a life sentence in federal prison. This incident is irrelevant to the future dangerousness analysis. It is also unreliable. It is too remote in time and there are too many unanswered questions for a jury to fully and fairly evaluate it. In United States v. Gilbert, 120 F.Supp.2d 147, 153 (D. Mass. 2000), the court found a prior act unreliable, based in part on the fact that it occurred so long before the homicide for which the defendant was on trial: "Any testimony about the

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Case 1:00-cr-00531-WYD

Document 1860

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incident thirteen years after the fact is not reliable enough to be used at a capital sentencing hearing." The fact that Rudy Sablan was only 16 at the time is also a factor which makes this incident unreliable in an Eighth Amendment analysis. This is true even if juvenile acts are not per se excludable. Further, we could never reconstruct the issue of intoxication, which would be a mitigating factor for the incident. Mr. Sablan had a severe alcohol abuse problem during this time of his life. Indeed, records show he was charged with DUI only 4 months later with a B.A. of .14. If alcohol did play a part in the Camacho incident, this must be part of the future dangerousness evaluation. The deplorable conduct of the BOP in this case notwithstanding, inmates in maximum security federal prisons do not ordinarily have access to alcohol. The Court should strike this proposed aggravator because it is irrelevant to future dangerousness as a matter of law. It is also unreliable and any probative value is outweighed by unfair prejudice. The Court does not need to reach these last two issues, however. This incident should be stricken as legally irrelevant on the proffer. If the Court does so, it will not need to be addressed factually at the upcoming hearing. THE 2/9/01 INCIDENT IN THE THIRD AMENDED NOI C1(h) This incident should be stricken as irrelevant and unreliable as a matter of law, because it lacks the "substantial degree of gravity . . . which is appropriate for consideration in deciding who should live and who should die." United States v. Gilbert, supra.

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Case 1:00-cr-00531-WYD

Document 1860

Filed 08/07/2006

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CONCLUSION Rudy Sablan requests an order striking the two incidents addressed herein as irrelevant as a matter of law based on the government's proffer. The remainder of the incidents in the government's proffer are appropriate for an evidentiary hearing and further consideration in the upcoming hearing on Phase III motions. Respectfully submitted, s/ Forrest W. Lewis Forrest W. Lewis FORREST W. LEWIS, P.C. 1600 Broadway, Suite 1525 Denver, Colorado 80202 Telephone: (303) 830-2190 Facsimile: (303) 830-1466 E-mail: [email protected] Attorneys for Defendant Rudy Sablan

Donald R. Knight KNIGHT & MOSES, LLC 7852 S. Elati Street, Suite 201 Littleton, Colorado 80120 Telephone: (303) 797-1645 Facsimile: (303) 798-3872 E-mail: [email protected]

CERTIFICATE OF SERVICE I hereby certify that the foregoing DEFENDANT RUDY SABLAN'S RESPONSE TO GOVERNMENT'S PROFFER OF PENALTY PHASE EVIDENCE (Docket # 1845) (R-58) was electronically filed with the Clerk of the Court using the CM/ECF system on this 8th day of August, 2006, which will send notification of such filing to the to the following e-mail addresses: Brenda Taylor [email protected] Philip Brimmer [email protected] Michael Hegarty [email protected] Patrick J. Burke [email protected] Dean Neuwirth [email protected] 5 Nathan D. Chambers [email protected] Susan L. Foreman [email protected]

s/Polly Ashley