Free Response in Opposition - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2922

Filed 05/11/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 00-cr-00531-WYD-02 UNITED STATES OF AMERICA, Plaintiff, v. RUDY CABRERA SABLAN, Defendant. ______________________________________________________________________________ DEFENDANT'S RESPONSE AND OBJECTION TO GOVERNMENT'S MOTION TO AMEND THE FOURTH AMENDED NOI (Docket #2912) ______________________________________________________________________________ Rudy Sablan objects to the government's motion for the reasons discussed herein. 1. The incident the government seeks to add occurred on April 11, 2003. At that

time the parties were engaged in jury selection. The government was aware of the incident immediately because the Court admonished Mr. Sablan in open court. 2. The government began interviewing witnesses as early as April 15, 2008.

Interview reports were not provided to Mr. Sablan until April 28, 2008. The guilty verdict was returned at 3:00 p.m. on May 8. That afternoon, the parties discussed the logistics of commencing the penalty trial. The parties agreed to be ready to begin on Monday, May 12. The government said nothing about amending the NOI. The government filed its motion on Friday, May 9. 3. The government identified the witnesses it intends to call regarding the incident

on Saturday, May 10. Six potential witnesses are mentioned in the motion. Eleven witnesses are referenced in the discovery provided on April 28, 2008. Eight witnesses regarding this incident

Case 1:00-cr-00531-WYD

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are on the May 10 witness list. On Saturday, May 10, the defense team attempted to gain access to some of the inmates listed at FCI but the team was refused access by FCI officials. Mr. MacDonald refused to speak with us at FDC. We had permission from his attorney to speak with him, however, and we believe he will speak with us if he knows who we are. It will be impossible to investigate this incident while beginning the penalty hearing on May 12. 4. "One of the essential elements that a proper analysis of a motion to strike a death

notice for violation of Section 3593(a)'s timeliness requirement must clearly address is the time remaining before trial . . ." United States v. Ferebe, 332 F.3d 722, 737 (4th Cir. 2003). The government's unreasonable delay in filing violates Mr. Sablan's rights under Section 3593(a) and his right to due process of law and effective assistance of counsel. 5. If the amendment is allowed, the Court must evaluate this incident under Section

18 USC 3593(c) and under United States v. Davis, 912 F.Supp. 938, 945 (E.D. La. 1996), and United States v. Walker, 910 F.Supp. 837 (N.D.N.Y 1995). See, Order in William Sablan, Docket No. 2301, at pp. 43-44. Mr. Sablan believes that, even if the amendment were allowed, this incident would be stricken under this analysis. The late filing of the notice would not allow the Court and parties adequate time to address these issues. 6. Although one case suggests a distinction between adding new aggravating factors

and adding evidence in support of existing factors, see, United States v. Battle, 173 F.3d 1343, 1347 (11th Cir. 1999), the government still must show no deliberate delay and no prejudice to the defendant. (Battle had 30 days notice with a list of witnesses.) See also, Unites States v. Roman, 371 F. Supp.2d 36, 42 (D. Puerto Rico 2005). 7. Delaying the trial date is not a remedy for an untimely death notice. A notice

filed an objectively unreasonable period of time prior to trial must be stricken. United States v.

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McGriff, 427 F. Supp. 2d 253, 265 (E.D.N.Y. 2006), citing United States v. Ponder, 347 F.Supp.2d 256, 270 (E.D. VA. 2004). (Thirty-six days notice held unreasonable in United States v. Hatten, 276 F.Supp.2d 574 (S.D. W.Va. 2003).) WHEREFORE, Rudy Sablan requests an order denying the government's motion to amend the NOI less than one business day prior to the penalty hearing. 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 s/Donald R. Knight Donald R. Knight KNIGHT & MOSES, LLC 7852 S. Elati Street, Suite 201 Littleton, Colorado 80120 Telephone: (303) 797-1645 Facsimile: (303) 730-0858 E-mail: [email protected]

CERTIFICATE OF SERVICE I hereby certify that the foregoing DEFENDANT'S RESPONSE AND OBJECTION TO GOVERNMENT'S MOTION TO AMEND THE FOURTH AMENDED NOI (Docket #2912) was electronically filed with the Clerk of the Court using the CM/ECF system on this 11th day of May, 2008, and a copy was emailed to the following e-mail addresses: Brenda Taylor [email protected] Philip Brimmer [email protected]

s/Polly Ashley