Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2660

Filed 11/26/2007

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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. ______________________________________________________________________________ RESPONSE TO GOVERNMENT'S PENALTY PHASE EXHIBITS ______________________________________________________________________________ Rudy Sablan submits the following response to the government's penalty phase exhibit proffer: 1. Mr. Sablan filed a motion in limine regarding convictions and incidents alleged in

support of non-statutory aggravating factors of future dangerousness (Docket #1701), which is incorporated by reference. The legal standards for admissibility argued by Mr. Sablan in that motion are in accord with the Court's ruling in William Sablan (Docket #2301 at pp. 6-12.) 2. In its previous order (Docket #2301), the Court ruled that Crawford applied in the

penalty phase. Although the government has asked the Court to reconsider that ruling, there is no good reason to do so. Rudy Sablan asserts a Crawford objection to most of the government's proffered documents. 3. The government's Exhibits 1A-G relate to non-institutional incidents which

allegedly occurred on Guam 21 years ago when Rudy was 17 years old. The offense is alleged to have been committed by Rudy and others. Individualized sentencing consideration is not

Case 1:00-cr-00531-WYD

Document 2660

Filed 11/26/2007

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possible with these incidents. The documents are also objectionable because they incorporate other, non-relevant incidents which were not noticed in the NOI. This incident is too remote in time and is part of a global plea agreement. Like the 1984 burglary alleged against William, it must be excluded "because the probative value is outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury." (Docket #2301, pp. 25-27.) 4. The 2 through 7 series exhibits are all inadmissible testimonial hearsay, in

addition to the objections made and issues raised in Rudy Sablan's motion in limine referenced above. The 3 series exhibits are also cumulative and would engender a "trial within a trial." If evidence of this incident is admitted, it should be limited to Exhibit 3A. 5. The 4 series exhibits (Carinio) are replete not only with hearsay, but speculation,

opinion and unreliable conclusions. As with the Guam incident, more than one person was involved and it is impossible for the jury to give individualized consideration to this incident. 6. The 5 series exhibits relate to the possession of a weapon that was neither used

nor threatened to be used. This incident lacks the reliability and probative value needed to be admissible. 7. exhibits. 8. The 7 series exhibits are subject to the same objections as the 4 series exhibits. The 6 series exhibits are subject to the same objections as the 4 and 3 series

This is a strange incident in terms of probative value because the fight was between two other inmates, one of whom struck Mr. Sablan first, before Rudy did anything physical. Any probative value is clearly outweighed by the other factors in this incident.

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Case 1:00-cr-00531-WYD

Document 2660

Filed 11/26/2007

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For the reasons stated herein, in Rudy Sablans prior motion in limine and those discussed in the upcoming hearings, Defendant requests an order excluding the government's exhibits. 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 CERTIFICATE OF SERVICE I hereby certify that the foregoing RESPONSE TO GOVERNMENT'S PENALTY PHASE EXHIBITS was electronically filed with the Clerk of the Court using the CM/ECF system on this 26th day of November, 2007, 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 3