Free Reply to Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1761

Filed 04/21/2006

Page 1 of 3

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. ______________________________________________________________________________ CONSOLIDATED REPLY TO THE GOVERNMENT'S RESPONSES TO PHASE III MOTIONS BY RUDY SABLAN (R-56) ______________________________________________________________________________ Rudy Sablan, by and through counsel, submits the following consolidated reply to the Government's position regarding Phase III motions: MOTION TO PRECLUDE USE OF GUAM CONVICTION AS STATUTORY AGGRAVATOR (R-51) The Government's efforts to grant statehood to Guam and Saipan are insufficient to bring Rudy Sablan's 1988 Guam conviction within the FDPA statutory guidelines of a "state or federal offense." This conviction was not a state or federal offense. The NOI states that the conviction was in the "Superior Court of Guam." The statutory violation was neither a federal nor state statute, but a Guam statute, 9 G.C.A. § 19.20. (See documents attached to Government's response.) THE HEINOUS OR DEPRAVED STATUTORY AGGRAVATING FACTOR (R-52) The Government's complicity argument is valid only for the commission of the underlying offense. The Government did not address the issues in United States v. Charthadora,

Case 1:00-cr-00531-WYD

Document 1761

Filed 04/21/2006

Page 2 of 3

230 F.3d 1237, 1261 (10th Cir. 2000), and United States v. Hall, 152 F.3d 381, 414 (5th Cir. 1988), discussed in Rudy Sablan's motion pp. 2-3. Acting crazy, bizarre or insensitive after the killing is not enough; the defendant must have directly, intentionally inflicted the torture or serious physical abuse. Id. The Government cites Rodriguez v. Zavaros, 42 F.Supp.2d 1059, 1121 (D.C. 1999), to support its heinous and depraved by complicity theory. In Rodriguez, the question was whether the death penalty could be imposed on a person who had not committed the murder himself but had been found guilty by complicity. The Supreme Court answered this question in Tison, of course. The instruction requested by Rodriguez was therefore inappropriate. This is not the issue in this case. Complicity in the homicide and complicity in the aggravating factor are two different things. Complicity can support a homicide conviction; it cannot be used to support an aggravating factor. In Rodriguez, the court was careful to note that "there was no suggestion in the penalty phase instructions that petitioner's individual culpability could depend on complicity principles." Id., at 1122. The court also agreed with the Colorado Supreme Court that "it is not reasonable to conclude from the record that the jury carried the complicity instruction through to the sentencing phase." Id. A careful reading of Rodriguez supports Rudy Sablan's position on this issue. EVIDENCE OF INSTITUTIONAL INCIDENTS ON THE ISSUE OF "FUTURE DANGEROUSNESS" (R-53) The non-institutional incidents listed in the NOI should be striken pursuant to the Government's statement that it "no longer seeks to rely on these incidents." (p. 17)

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Case 1:00-cr-00531-WYD

Document 1761

Filed 04/21/2006

Page 3 of 3

As to the institutional incidents remaining in the NOI, the Court must decide after an evidentiary hearing, whether they are relevant and sufficiently reliable to be admitted in evidence at a 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

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 CONSOLIDATED REPLY TO THE GOVERNMENT'S RESPONSES TO PHASE III MOTIONS BY RUDY SABLAN (R-56) 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] 3

Susan L. Foreman [email protected]

s/Polly Ashley