Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2636

Filed 10/12/2007

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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. 2. RUDY CABRERA SABLAN, Defendant.

GOVERNMENT'S MOTION TO RECONSIDER CRAWFORD RULING OF FEBRUARY 26, 2007

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, and through Brenda K. Taylor and Philip A. Brimmer, Assistant U.S. Attorneys, respectfully requests that the Court reconsider its ruling of February 26, 2007, Document 2301, that Crawford v. Washington, 541 U.S. 36 (2004), applies to the evidence presented at a death penalty sentencing hearing. This request is made for the following reasons: 1. At the time of the ruling, the Court noted that no circuit court had addressed the applicability of the Confrontation Clause to the penalty stage post-Crawford. Document 2301 at 14. The Court adopted the reasoning in United States v. Mills, 446 F. Supp. 2d 1115 (C.D. Cal. 2006), holding that the Confrontation Clause applies to both the eligibility and selection phases of the penalty stage of a capital case.

Case 1:00-cr-00531-WYD

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2. Since this Court's ruling, there has been a change in the state of the law on this subject. On March 29, 2007, the Fifth Circuit issued United States v. Fields, 483 F.3d 313 (petition for cert. filed (September 4, 2007)). Fields involved a murder conviction and a sentence to death pursuant to the Federal Death Penalty Act (FDPA). The defendant contended that his rights pursuant to the Confrontation Clause were violated by the introduction of hearsay statements at his sentencing hearing, citing Crawford v. Washington, 541 U.S. 36 (2004). The Fifth Circuit rejected this argument and held that "the Confrontation Clause does not operate to bar the admission of testimony relevant only to a capital sentencing authority's selection decision." Id. at 326. The opinion contains an extensive analysis of the case law related to the applicability of constitutional rights at sentencing hearings, both capital and non-capital. In essence, the Fifth Circuit agreed with the reasoning of the court in United States v. Jordan, 357 F. Supp. 2d 889 (E.D. Va. 2005), that the Confrontation Clause post-Crawford applies only to the evidence presented during the eligibility phase of a capital sentencing hearing when statutory aggravating factors are considered, and not to the selection portion of the hearing when non-statutory factors are considered. 3. In the trial of William Sablan, the Court was disinclined to use a bifurcated proceeding at sentencing to accommodate different evidentiary requirements for eligibility versus selection. However, in any capital sentencing hearing for Rudy Sablan,

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Case 1:00-cr-00531-WYD

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the only statutory aggravating factor to be considered would be the "heinous or depraved" factor. All evidence relevant to that factor would likely have been presented during the guilt phase of the trial when the Confrontation Clause is applicable. The only new evidence presented during the penalty phase would concern non-statutory factors. Wherefore, for the reasons stated above, the government respectfully requests that the Court reconsider its ruling of February 26, 2007 regarding the applicability of the Confrontation Clause at sentencing in light of the Fifth Circuit Fields opinion.

Respectfully submitted this 12 th day of October, 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) 454-0406 E-mail address: [email protected] Attorney for Government

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Case 1:00-cr-00531-WYD

Document 2636

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CERTIFICATE OF SERVICE I hereby certify that on this 12th day of October, 2007, I electronically filed the foregoing GOVERNMENT'S MOTION TO RECONSIDER CRAWFORD RULING OF FEBRUARY 26, 2007 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: 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] Attorney 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) 730-0858 Email: [email protected] Attorney for Defendant Rudy Sablan

By: s/ Veronica Ortiz VERONICA ORTIZ Legal Assistant 1225 Seventeenth Street, Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Facsimile: (303) 454-0403 E-mail: [email protected]

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