Free Motion to Excuse - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2659

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. ______________________________________________________________________________ UNOPPOSED MOTION FOR ORDER WAIVING THE APPEARANCE OF DEFENDANT FOR HEARINGS ON MOTIONS IN DECEMBER 2007 ______________________________________________________________________________ Rudy Sablan requests an order waiving his appearance at the hearings on motions scheduled to commence on December 3, 2007. In support of this request, Mr. Sablan states as follows: 1. This matter is scheduled for hearings on motions during the month of December

2007. The hearings are set to commence on December 3, 2007. With the exception of the testimony of Jay Vought, a BOP inmate, the issues will be resolved by proffers, offers of proof and legal argument. AUSA Brenda Taylor has authorized counsel to state that the government does not oppose this motion. 2. Most of the motions to be resolved during the hearings have been pending for a

long time, due to the unique circumstances of this case. Mr. Sablan has read all of the motions and discussed them with counsel. He has heard argument on many of them which were deferred or denied without prejudice. He understands the issues and has already provided his input to

Case 1:00-cr-00531-WYD

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defense counsel. He has weekly telephone calls with counsel to discuss developments and issues in his case, as well as frequent personal visits with counsel and the defense investigators. 3. Although Mr. Sablan has had no disciplinary matters since 1999 (this case) he

remains a maximum security inmate at ADX Florence. The difficulties of travel from ADX to Denver are something only the inmates and the BOP and US Marshals can understand and appreciate. As the Court knows, Mr. Sablan can observe and participate in the hearings by live video feed. We have confirmed this with ADX. One of the defense attorneys could be present with Mr. Sablan at ADX. ADX has advised us that we would also be able to speak with Mr. Sablan by telephone during the hearings. 4. Rudy Sablan has personal issues which cause him to wish to remain at ADX

during the month of December. These issues involve his family, his health and his own preparation for trial. These issues are extremely important to him and weigh heavily on his ability to be mentally and emotionally prepared for a capital murder trial set to commence in three months. His is, for example, reviewing transcripts, reports and other material to assist us in final trial preparation. If he is in Denver for a month, as he would be with a split motions hearing, he would not be able to complete this work. The legal and personal issues are very real and important to him. 5. Mr. Sablan told defense counsel at the last hearing that he did not wish to be

present for the December hearings. We have continued to discuss this issue with him every week in our telephone calls. We take this issue seriously and so has he. In the November 21 telephone conference he was very firm in his decision directing us to file this motion. We are confident that this is a knowing, voluntary, intelligent decision which should be respected and

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given maximum weight and consideration by the Court. We have advised Mr. Sablan that the final decision rests with the Court. He understands and respects this. He wants the Court to know that this is very important to him. We want the Court to know that it is important to the defense for the Court to accept Mr. Sablan's waiver. Under these circumstances there is no reason to reject it as discussed herein. LEGAL ISSUES REGARDING WAIVER OF APPEARANCE AT MOTIONS HEARING 6. F.R.Crim.P. 43 provides that a defendant must be present at: 1. 2. 3. The initial appearance, the arraignment and plea; Every trial stage and; Sentencing.

A defendant "need not be present" for " . . . a conference or hearing on a legal question." The Court has discretion to accept a waiver of appearance from a defendant in a criminal case. In Re U.S. 597 F.2d 27 (2d Cir. 1979); although a defendant has a right to be present at a suppression hearing where testimony is taken, that right is not absolute and may be waived. United States v. Dalli, 424 F.2d 45 (2d Cri. 1970). In Burley v. United States, 295 F.2d 317 (10th Cir. 1961), the Tenth Circuit ruled that the defendant's absence during resolution of issues of law (during the actual trial) was not prejudicial where the defendant was represented by counsel and the defendant's absence was a strategy decision. One of the issues involved an offer of proof (a proffer) regarding the defendant's defense of entrapment. 7. A defendant's right to waive his appearance at certain hearings can be as

important as his right to be present. The Court has accepted a waiver of Mr. Sablan's

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appearance at previous hearings in this case. Those waivers have been helpful to Mr. Sablan, to the attorney-client relationship and to effective trial preparation. The waiver requested here is even more important to Mr. Sablan. A written waiver has been faxed to ADX and will be filed with the Court as soon as it can be executed and returned to counsel. WHEREFORE, Rudy Sablan requests waiver of his appearance at the December 2007 hearings on motions. 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 MOTION FOR ORDER WAIVING THE APPEARANCE OF DEFENDANT FOR HEARINGS ON MOTIONS IN DECEMBER 2007 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

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