Free Motion to Sever Defendant - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1776

Filed 04/24/2006

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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. ______________________________________________________________________________ UPDATED MOTION FOR SEVERANCE BY DEFENDANT RUDY SABLAN (R-57) ______________________________________________________________________________ Rudy Sablan submits the following update to his motion for severance, pursuant to the Court's order at the status conference on April 11, 2006. THE ORIGINAL MOTIONS Rudy Sablan filed a motion for severance with the initial motions filing in August 2001. William Sablan also filed a motion for severance at or about the same time. In his motion, William told the Court he intended to present evidence of prior assaults allegedly committed by Rudy as "reverse 404(b) evidence." William asserted a "constitutional right to present a complete defense" and noted that a defendant generally has a right to present evidence that someone else committed the offense for which the defendant is charged. (p. 8) The government does not intend to present this evidence against Rudy at trial. Indeed, it could not do so under F.R.E. 403, 404 and Rudy's right to a fair trial.

Case 1:00-cr-00531-WYD

Document 1776

Filed 04/24/2006

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Thus, Rudy's right to a fair trial and due process would conflict with William's desire to present this evidence in a joint trial. (See William's motion at p. 9.) ISSUES WHICH HAVE ARISEN SINCE THE ORIGINAL MOTIONS The most significant issue which has been identified subsequent to the original severance motion is William Sablan's incompetency and related mental health issues. Over his objection, Rudy Sablan and his attorneys were excluded from two years of court proceedings regarding William Sablan's mental problems. In his motion R-18 (Docket #257), Rudy Sablan explained why evidence of William Sablan's mental problems is important to his (Rudy's) defense. He supplemented this motion with an affidavit from Dr. Spencer Friedman during the hearing on his motion for discovery of Brady material R-47 (Docket #1534). William Sablan has opposed the release of any of his mental health records to Rudy and has asked the Court to disqualify Rudy's attorneys because they inadvertently received some of the material from the government. Rudy Sablan continues to assert that it is absolutely essential that he be given access to this material and allowed to present it at trial. The Constitution guarantees a defendant the right to present a theory of defense. United States v. Mulinelli-Navas, 111 F.3d 983, 992 (1st Cir. 1997) (limit on cross-examination "deprived Mulinelli of her ability to present her theory of defense to the jury."); United States v. Vega Molina, 401 F.3d 511, 524 (1st Cir. 2005) ("whether rooted in the Due Process Clause of the Fifth Amendment or in the Compulsory Process Clause of the Sixth Amendment, the Constitution guarantees criminal defendants the right to present a defense."), citing United States v. Blum, 62 F.3d 63, 67 (2d Cir.1995). 2

Case 1:00-cr-00531-WYD

Document 1776

Filed 04/24/2006

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The effect of William's recent Rule 12.2(b) notice is unclear. If William continues to object to the release of mental health material to Rudy and/or Rudy's use of mental health evidence at trial along the lines stated in R-18, this presents a conflict of basic rights of the codefendants which may require a severance. The Bruton issue (also a Crawford issue) mentioned in Rudy Sablan's original motion remains and was used recently by the government in its response to Rudy Sablan's motion in limine regarding the "heinous or depraved" statutory aggravating factor (Docket #1725, at p. 13). "However the defendant (Rudy) fails to mention a third statement by William Sablan to FBI Special Agent Martin Daniell in which he does implicate Rudy Sablan and says Rudy set him up." PENALTY ISSUES If a penalty hearing is necessary in this case, a joint trial would compromise the individualized consideration of each defendant mandated by the Eighth Amendment. See Edmund v. Florida, 458 U.S. 782, 798 (1982); Jones v. United States, 527 U.S. 373, 381 (1991). A joint penalty trial would unfairly create evidentiary and strategic difficulties for the Court and counsel. CONCLUSION For the reasons stated herein and in his original motion, Rudy Sablan requests a severance from co-Defendant William Sablan and a separate trial.

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Case 1:00-cr-00531-WYD

Document 1776

Filed 04/24/2006

Page 4 of 4

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 UPDATED MOTION FOR SEVERANCE BY DEFENDANT RUDY SABLAN (R-57) was electronically filed with the Clerk of the Court using the CM/ECF system on this 21st day of April, 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] Nathan D. Chambers [email protected] Susan L. Foreman [email protected] s/Polly Ashley

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