Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2441

Filed 03/27/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S RENEWED MOTION IN LIMINE RE: EXPERT WITNESSES

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 the defendant's Renewed Motion In Limine Re: Expert Witnesses: 1. At the hearing on the afternoon of March 15, 2007, the Court noted that the government has the right to present rebuttal evidence as long as it was legitimate rebuttal evidence. The defendant's motion is attempting to foreclose legitimate rebuttal evidence before the defendant's experts have even testified. 2. The United States has listed Gregory Hershberger and Dr. Carlos Tomelleri as potential rebuttal witnesses. They will be discussed separately below:

Case 1:00-cr-00531-WYD

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3. Gregory Hershberger ­ Mr. Hershberger is a former warden of ADX in Florence, Colorado. He will rebut testimony by Dr. Mark Cunningham about ADX. The government has properly endorsed Mr. Hershberger as a rebuttal witness. 4. On March 6, 2007, after both parties had rested in the liability phase, the defendant provided the government with copies of its penalty phase exhibits. Upon receipt of these exhibits, the government learned that Dr. Cunningham would offer opinions in this case about ADX in Florence. Exhibit E-1 of the defendant's penalty phase exhibits appears to be a PowerPoint presentation. Slides 5 through 28 of this presentation all concern ADX. Thus, it appears that Dr. Cunningham will present extensive testimony about ADX. 5. The defendant's Rule 16 notices concerning Dr. Cunningham have never mentioned ADX. On August 14, 2006, the defendant sent a letter to the government that stated in part: "we may call Dr. Mark Cunningham to provide expert testimony on future dangerousness." No other disclosure was provided until December 13, 2006, when the defendant sent another letter that provided a one sentence description of Dr. Cunningham's opinions. The letter did not mention ADX. 6. Rule 16 requires that the defendant provide "a written summary of any testimony that the defendant intends to use under Rules 702, 703, or 705" and requires that "[t]his summary must describe the witness's opinions, the bases and reasons for those opinions, and the witness's qualifications." Rule 16(b)(1)(C).

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7. The defendant's December 13, 2006 one sentence summary of Dr. Cunningham's testimony did not provide the "bases and reasons for those opinions" under Rule 16 and provided no disclosure whatsoever regarding ADX. The first disclosure that the government received regarding ADX occurred on March 6, 2007. The fact that the government endorsed Gregory Hershberger ­ a former ADX warden ­ after learning of Dr. Cunningham's proposed PowerPoint presentation on ADX is both understandable and proper. Assuming that the Court allows Dr. Cunningham to testify about the subject of ADX, it seems fair that government have the opportunity to rebut his testimony with that of Mr. Hershberger. 8. Dr. Carlos Tomelleri ­ As stated at the March 15, 2007 hearing, the government has endorsed Dr. Tomelleri on the issue of defendant's medications. Dr. Tomelleri is both familiar with the defendant and his medical situation and with the ability of the BOP to provide psychiatric medication to inmates. In the event that one or more of the defendant's experts offers the opinion that the continued use of psychiatric medication will reduce or prevent William Sablan from posing a threat of future danger ­ a subject about which the defendant has provided no notice in any of its expert reports ­ the government may need to call Dr. Tomelleri in rebuttal. WHEREFORE the United States requests that the Court deny defendant's Renewed Motion In Limine Re: Expert Witnesses.

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Respectfully submitted this 27th

day of March, 2007.

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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CERTIFICATE OF SERVICE I hereby certify that on this 27th day of March, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S RENEWED MOTION IN LIMINE RE: EXPERT WITNESSES with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected]

s/ Janet D. Zinser Janet D. Zinser Supervisory Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0327 Fax (303) 454-0403 E-mail address [email protected]

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