Free Motion for Discovery - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2731

Filed 02/19/2008

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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. ______________________________________________________________________________ SPECIAL MOTION FOR DISCOVERY ______________________________________________________________________________ Rudy Sablan, by and through counsel and pursuant to F.R.CRIM .P. 16 and his constitutional rights to a fair trial, effective assistance of counsel and due process of law as set forth in Brady v. Maryland, 373 U.S. 18 (1963), Giglio v. United States, 405 U.S. 150 (1972), and subsequent cases, requests an order directing the government to produce and disclose the following material. Mr. Sablan requests discovery of this material at least 15 days prior to the commencement of jury selection. A. Discovery regarding government witness Arthur Peck: 1. We received an undated memorandum (PECK049190) regarding the WITSEC determination that Mr. Peck is not required to register as a sex offender. We request all supporting documentation regarding this determination. 2. The type of facility (FCI, etc.) and date of assignment for Mr. Peck from his acceptance into WITSEC to his release.

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3.

The terms of Mr. Peck's supervised release and all information and documentation regarding any revocation of his supervised release. (The court docket in Atlanta reflects a revocation proceeding in 2004.)

4. 5.

The WITSEC memorandum of understanding with Mr. Peck. Complete SIS files of the Peck-Fuller contraband investigation and; any BOP file on this subject not previously provided.

6.

An unredacted copy of the June 22, 2004 psychological evaluation of Mr. Peck.

7. 8.

The discovery listed on Attachment A to this motion. All other documents and material within the scope of Brady and Giglio not previously provided.

B. C.

All material regarding the Delores Contreras interview with the AUSA and BOP. All written reports and notes from SIS Felz regarding the investigation of the

death of Mr. Estrella. D. All documentation of promotions, pay increases and other personnel action

regarding corrections officer Forsythe after October 10, 1999. E. All documentation from the "mortality review committee" regarding the Estrella

matter. (Dr. Hutchinson referred to this review as separate from the After-Action Review.) F. G. provided. The WITSEC memorandum of understanding for Jay Vought. All other material within a broad reading of Brady and Giglio not previously

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H.

Mark Farmer 1. All material regarding the terms of his release from prison, the terms of his supervised release and any violations thereof. 2. A complete record of any monetary payments made and any other services provided to Mr. Farmer directly or indirectly or on his behalf by the government.

I. witnesses.

Unredacted PSI's and complete criminal histories for all government inmate

Legal Issues Mr. Peck and Mr. Farmer are the key witnesses for the prosecution in this case. Mr. Peck is the only witness who implicates Mr. Sablan in the killing of Mr. Estrella. Mr. Peck has received many advantages and benefits from the government for his "cooperation" in this case. The Court may recall that Mr. Peck did not come forward with his story until 2 ½ months after the death of Mr. Estrella when he himself became the subject of a BOP investigation. Ultimately, he was released from prison in exchange for his testimony in this case. Mr. Peck has a history of lying to BOP and other governmental officials whenever he felt it could benefit him in some way. He has a prior conviction for rape of a child, among many other serious offenses. Upon his release, he would have been required to register as a sex offender. WITSEC intervened, however, and exempted him from registration requirements. This is one of the many benefits he received in exchange for his testimony against Rudy Sablan. Mr. Peck must have been the person the Ninth Circuit had in mind when it stated that "we have previously recognized that criminals who are rewarded by the government for their

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testimony and their use triggers an obligation to disclose material information to protect the defendant from being the victim of a perfidious bargain between the state and its witness." Carriger v. Stewart, 132 F.3d 463, 479 (9th Cir. 1997). The court noted the long-standing rule that "material" evidence under Brady includes impeachment evidence, particularly when it relates to a pivotal government witness. Witnesses like Mr. Peck are the reason for the jury instruction approved and relied upon by the court in United States v. Fria-Vazquez Del Mercado, 223 F.3d 1213, 1216 (10th Cir. 2000): The testimony of a witness who provides evidence against a defendant for personal advantage, such as the possibility of a reduced sentence, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the witness' testimony has been affected by self-interest. . . ." In this case the government has used Mr. Peck's WITSEC status to deny a disturbing amount of Brady material. In Carriger v. Stewart, supra, the court noted that the government has a duty to learn of exculpatory evidence. The court observed that the prosecution is "in a unique position to obtain information known to other agents of the government" and that it "may not be excused from disclosing what it does not know but could have learned." Id., at 480. The WITSEC program is replete with incentives to witnesses. The agreements between the government and its witnesses,, including WITSEC incentives, are an important part of constitutional impeachment material. In Cargale v. Mullin, 317 F.3d 1196, 1216 (10th Cir. 2003), the court observed that "a conviction based on testimony implicating concealed incentives to an important witness is potentially tainted." (Citing, Giglio.) In Banks v. Dretke, 540 U.S. 668, 124 S.Ct. 1256 (2004), the United States Supreme Court reminded us of the broad latitude it

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has historically afforded to defendants in cross-examining informants. The court noted that it had "long recognized the serious question of credibility informers pose." Id., at 701-702. Disclosure of impeachment material under Brady, the court reminded us, is constitutionally required. This includes material necessary to impeach witnesses, particularly informant witnesses who are pivotal to the government's case. The veil of secrecy afforded Mr. Peck by the WITSEC program in this case must be lifted. Mr. Sablan is entitled to all information which bears on Mr. Peck's credibility in this capital murder case in which his life is at stake. Impeachment material regarding this proven liar cannot be constitutionally withheld simply because the incentives were provided through some government program like WITSEC to which he ascended based solely on his testimony against Rudy Sablan. WHEREFORE, Defendant Rudy Sablan, requests an order directing the government to produce and disclose the above-referenced material. 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]

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] Attorneys for Defendant Rudy Sablan

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CERTIFICATE OF SERVICE I hereby certify that the foregoing SPECIAL MOTION FOR DISCOVERY was electronically filed with the Clerk of the Court using the CM/ECF system on this 19th day of February, 2008, which will send notification of such filing to the to the following e-mail addresses: Brenda Taylor [email protected] Philip Brimmer [email protected]

s/Polly Ashley

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