Free Response to Motion - District Court of Colorado - Colorado

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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 RESPONSE TO DEFENDANT'S MOTION TO STRIKE NOTICE OF INTENT TO SEEK THE DEATH PENALTY

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, responds as follows to the above-referenced motion. INTRODUCTION The Defendant is asking the Court to strike the Government's Notice of Intent to Seek the Death Penalty based on two arguments. He first challenges the "heinous or depraved"statutory aggravating factor as applied to his conduct. Secondly, he argues that the government's decision to continue to seek the death penalty as to Rudy Sablan is arbitrary and capricious and in violation of his rights under the Fifth and Eighth Amendments. The government respectfully requests that the Court deny the Motion.

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THE "HEINOUS OR DEPRAVED" STATUTORY AGGRAVATING FACTOR A. The Motion to Strike remains premature. The Court previously addressed this issue in its Order of July 6, 2006. At that time the Defendant's Motion to Strike the "heinous or depraved" factor was denied without prejudice, and the Court found that "I must hear the evidence in context to determine if this aggravating factor is proper as to Rudy Sablan." Doc. 1836 at 19. That finding continues to be entirely appropriate despite the completion of the trial of William Sablan. The evidence as to Rudy Sablan, and the inferences which may be drawn therefrom, have not yet been presented to the Court or a jury. And unless the Court finds that there is no evidence presented at the trial of Rudy Sablan that could support the heinous or depraved factor, the issue must and should be resolved by the jury at the sentencing hearing. B. There is evidence to support the "heinous or depraved" factor as to Rudy Sablan. 1. Proof requirements In its July 6, 2006 Order, the Court set out some guidelines and definitions for this factor. "Depraved" means "that the defendant relished the killing or showed indifference to the suffering of the victim, as evidenced by torture or serious physical abuse of the victim." Doc. 1836 at 18, citing United States v. Hall, 152 F.3d 381, 414 (5 th Cir. 1998). This Court ruled that serious physical abuse "may be inflicted either before or after death and does not require that the victim be conscious of the abuse at the time it was inflicted." Doc. 1836 at 19, citing United States v. Chanthadara, 230 F.3d 1237, 1261-62 (10 th Cir.

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2000); Richmond v. Lewis, 506 U.S. 40 (1992); and United States v. Jones, 132 F.3d 232, 250 (5 th Cir. 1998). In the penalty phase of the William Sablan trial, the Court instructed the jury of the definition of the "heinous or depraved" aggravator. Jury Instruction No. 12, attached as Attachment 1. This instruction describes in detail what is required to prove this aggravator and directs the jury to evaluate the factor based on the defendant's personal actions and intent. The instruction concludes by telling the jury that in making its decision it may consider: infliction of gratuitous violence upon the victim above and beyond that necessary to commit the killing, needless mutilation of the victim's body, and helplessness of the victim. With that backdrop, the Court must consider the evidence of Rudy Sablan's role in the killing and mutilation of Joey Estrella. 2. The facts demonstrate that Rudy Sablan personally participated in the "serious physical abuse" of Joey Estrella. The evidence indicates that, on the evening of October 10, 1999, William Sablan and Joey Estrella were having a fist fight. The fight ended when Rudy Sablan brutally choked Estrella to unconsciousness with headphone cords. During the short time Arthur Peck was standing at the cell, he saw Rudy Sablan give several violent jerks of a cord wrapped tightly around Estrella's neck and heard Rudy Sablan yell, "I told you to fuckin' stop it, I told you to fuckin' stop it!" William Sablan Trial Transcript,1 February 14, 2007,
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Hereinafter referred to as Trial Tr. 3

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at 3907, lines 6-25; 3908, lines 1-22; 3926, line 1-21; 3927, lines 1-15. What Peck saw is corroborated by the deep ligature marks on Estrella's neck observed by Dr. Bowerman and FBI Special Agent George Veltman. The strangulation set everything else into motion. Only an unconscious Estrella could have been butchered as he was that night. Dr. Michael Baden, an expert in forensic pathology, testified at William Sablan's trial that the marks on the victim's neck were caused by a ligature as opposed to someone's hands.2 Trial Tr. at 4604-5, lines 11-25, 1-4; at 4610, lines 7-21. The physical evidence convinced Dr. Baden that Joey Estrella was not moving or struggling when the cutting was done. Trial Tr. at 4618, lines 4-10. If Estrella had been conscious, he would have been able to speak because his vocal chords were not damaged. Trial Tr. at 4614, lines 1-16. Dr. Baden further concluded, to a reasonable degree of medical certainty, that the cause of Mr. Estrella's death was a "combination of asphyxia by ligature strangulation and exsanguination, bleeding, from multiple cut wounds to his neck and jugular, right jugular vein." Trial Tr. at 4629, lines 2-7. "...[I]n my opinion, I think both the neck compression and the cut of the jugular vein are both part of the cause of death." Trial Tr. at 4633, lines 15-19. What happened after Joey Estrella collapsed on the cell floor? Mark Farmer, in

William Sablan, in his statement to the FBI on October 10, 1999, and in a letter to his mother on October 20, 1999, both of which Defendant Rudy Sablan seeks to admit as evidence in his trial, says that he (William) strangled Estrella with his hands. The testimony of Dr. Baden indicates that the physical evidence does not support William Sablan's version of events in that regard. 4

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the cell next door, heard a thud, like something hitting the floor, and then quiet conversation between William and Rudy Sablan in a language he did not understand. No yelling, no screaming, no arguing, no frenetic movements. Just quiet talking and lots of water running. The next thing he heard were shouts from Rudy Sablan offering body parts to everybody on the range. Trial Tr. at 3589-93. When the officers came to the cell at approximately 3:00 a.m., Joey Estrella was dead, his throat slashed and his abdomen cut open. Although the cutting was finished, the mutilation and "serious physical abuse" were not. Dr. Baden testified at William Sablan's trial that the abdominal opening had been cut in the upper area but torn in the lower part. He opined that the tearing happened as a result of somebody putting his hands into the opening which had been cut and tearing the abdomen open wider. Trial Tr., February 27, 2007, at 4622-23. Two witnesses have testified that they saw Rudy Sablan reaching into Estrella's body cavity and pulling out organs. Correctional Officer Thomas Martinez testified at the Motions Hearing on October 29, 2002, that when he looked into the cell, before the video tape was started, he saw both William and Rudy Sablan reaching into Estrella's body cavity and draping intestines up over a makeshift clothesline. Officer Martinez described Rudy Sablan as yelling and screaming, yelping "like an Indian that had just scalped somebody." He saw Rudy pick up a body organ from the floor, put it to his mouth, and then slap it on the window of the cell door. Officer Martinez also observed that once the

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video was started, Rudy Sablan stopped yelling and sat down at the desk in the cell. Motions Hearing Transcript3 , October 29, 2002, at 1190-1194 (direct examination) and 1241-1242 (cross-examination). Officer Martinez testified consistently at William Sablan's trial that he saw Rudy Sablan reaching into the body cavity of Joey Estrella. Trial Tr., February 28, 2007, at 4665 (Direct) and 4682 (Cross-examination). Officer Shawn Forsythe also testified, on October 31, 2002, and at the trial of William Sablan, that before the filming began he saw Rudy Sablan reach into the "chest" cavity or near that area, pull out a body organ and smear it on the window. Motions Tr., October 31, 2002, at 1669, 1692-1694 ; Trial Tr., February 14, 2007, at 3817. Finally, the video of the activity in the cell and the transcript of their conversation clearly show both Sablans working together, with Rudy directing William to "slap him" (meaning Joey Estrella), Government Trial Exhibit4 20A at 2, ( pages 1-11, attached as Attachment 2) and to get rid of the Bic razor. Rudy directs William to stand in front of the door so he can flush "this." Gov't Trial Ex. 20 A at 6. The transcript also shows Rudy telling William what to say and not say. At one point, Rudy Sablan says in Chamorro "Just tell them that he was already dead when we......" (emphasis added). Gov't Trial Ex. 20A at 11.

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Hereinafter referred to as Motions Tr. Hereinafter referred to as Gov't Trial Ex. 6

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3. Argument Rudy Sablan has attempted to define "serious physical abuse" as the cutting of Joey Estrella's abdomen. Surely reaching into the abdomen and pulling out body parts must be classified as "serious physical abuse" as well, particularly given the testimony of Dr. Baden that the abdominal opening was only partially cut. In Dr. Baden's opinion, the remainder of the gaping hole was torn open, most likely by the act of reaching in and removing organs--something both William and Rudy Sablan did, according to witness statements and testimony. Such an act could only be done with the specific intent to inflict serious physical abuse beyond what was necessary to kill Joey Estrella. Citing no authority, the Defendant urges the Court in its "gatekeeping" role to suppress, "as a matter of law," the evidence of celebratory shouts and the display of Mr. Estrella's body parts by Rudy Sablan as irrelevant to the heinous or depraved aggravator. What evidence could be more probative of Rudy Sablan's state of mind than this behavior? If the evidence showed that the Defendant had merely sat quietly, looking sad or weeping while William Sablan cavorted about the cell with body parts, the Defendant would be urging the opposite ruling. If the evidence showed that the Defendant yelled at or argued with William Sablan when the cutting started, or yelled for a guard, or tried to get out of the cell, Defendant would urge its relevance. And if Rudy Sablan had not strangled Joey Estrella, there would have been no cutting at all. One recent case, United States v. Johnson, 495 F.3d 951 (8 th Cir. 2007), is

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particularly helpful in the analysis of the "heinous or depraved" aggravator in a codefendant/complicitor situation. There the defendant aided and abetted her boyfriend in the murders of three adults and two children who had witnessed the boyfriend's drug transaction. She was sentenced to death. The boyfriend was tried separately and given a life sentence although he was the "triggerman." The Defendant contended that the "heinous or depraved" aggravator did not apply to her, because there was insufficient evidence that she personally committed the murders in a manner that involved torture or serious physical abuse. The Eighth Circuit, noting that no authority had been cited for the suggestion that the heinous or depraved aggravating factor required the defendant to have personally committed the murders, found that the aggravator was appropriate because there was sufficient evidence that she was an essential participant in the murders. There was evidence that the defendant had purchased the murder weapon and had held the gun while her boyfriend beat one of the victims. The Court found that "[a]lthough Johnson may not have pulled the trigger, the jury was warranted in concluding that her conduct `involved' the `torture or serious physical abuse' required to find this enhancement." Id. at 975. 4. Conclusion The evidence supports the submission of the heinous or depraved statutory aggravator to the jury for its consideration in the penalty trial of Rudy Sablan. And it is crucial that the jury be allowed to hear all of the circumstances of Joey Estrella's death in

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order to evaluate this factor. At the end of the day, this is a factual determination. It is the jury which decides whether it has been proved beyond a reasonable doubt. Wherefore, the government respectfully asks the Court to deny Defendant's Motion to Strike the Heinous or Depraved Statutory Aggravating Factor. MOTION TO STRIKE NOTICE OF DEATH PENALTY AS ARBITRARY AND CAPRICIOUS Rudy Sablan claims that the government's decision to continue to seek the death penalty against him is "arbitrary and capricious" and violates the Fifth and Eighth Amendments. Defendant's Motion to Strike Notice of Intent at 10. Rudy Sablan does not allege that the government's original decision to seek the death penalty against him was arbitrary and capricious. In fact, the Motion to Strike does not explain why the defendant believes that the government's decision to continue to seek the death penalty against Rudy Sablan is arbitrary and capricious. Instead, Rudy Sablan simply quotes, without discussion, portions of the district court opinion in United States v. Littrell, 478 F. Supp. 2d 1179 (C.D.Cal. 2007). As explained below, the district court's decision in Littrell ignores well-established Supreme Court authority recognizing the Executive Branch's authority to make charging decisions. A. The Executive Branch Has the Authority to Decide Whether to Seek the Death Penalty The Executive Branch, through the Department of Justice, has the constitutionally recognized authority to make charging decisions in federal criminal cases,

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among them whether to seek the death penalty in each case where a defendant is potentially death-eligible. That charging authority is exercised by the Attorney General in accordance with established procedures. Courts have held that the exercise of such discretion is generally not subject to court review. "In both civil and criminal cases, courts have long acknowledged that the Attorney General's authority to control the course of the federal government's litigation is presumptively immune from judicial review." Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1480 (D.C. Cir. 1995). The United States Supreme Court has recognized that, in the absence of any improper motive, the exercise of prosecutorial discretion is not reviewable. "In our system, so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file and bring before a grand jury, generally rests entirely in his discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (holding that a prosecutor may properly, during plea negotiations, threaten to indict a defendant under a three strikes law if the defendant does not plead guilty to the pending charge, and then indict and convict the defendant under the three strikes law when the defendant refuses to plead guilty to the original charge). The Supreme Court has recognized that it is not an appropriate function of the Judicial Branch to review the Executive Branch's charging decisions: This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the 10

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strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis that courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decision making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute. Wayte v. United States, 470 U.S. 598, 607 (1985). See also Town of Newton v. Rumery, 480 U.S. 386, 395 (1987) ("Our decisions ... uniformly have recognized that courts normally must defer to prosecutorial decisions as to whom to prosecute"); United States v. Derrick, 163 F.3d 1799, 824-825 (4 th Cir. 1998) ("The caselaw is legend from the Supreme Court and the courts of appeals that the investigatory and prosecutorial function rests exclusively with the Executive"). The prosecution of those who have violated federal law is "a core executive constitutional function," United States v. Armstrong, 517 U.S. 456, 465 (1996), and a "special province" of the Executive branch. Heckler v. Chaney, 470 U.S. 821, 832 (1985). Thus, "[t]he Attorney General and United States Attorneys retain `broad discretion' to enforce the Nation's criminal law." Armstrong, 517 U.S. at 465 (quotation omitted). Rudy Sablan makes no suggestion that the government's decision to continue seeking the death penalty against him arose from an improper motive. This fact is

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significant given that district courts lack the authority to review prosecutorial charging decisions where no improper motive is suspected. For example, in United States v. Redondo-Lemos, 955 F.2d 1296, 1298-1300 (9th Cir. 1992), overruled on other grounds, United States v. Armstrong, 48 F.3d 1508 (9 th Cir. 1995), rev'd, 517 U.S. 456 (1996), the district court believed that the United States Attorney's Office was arbitrarily allowing certain similarly-situated drug "mules" to plead guilty to lesser offenses that did not carry a statutory minimum sentence. 955 F.2d at 1298. The appellate court held that, in the absence of any improper motive such as race or gender, the district court had no authority to review such decisions of the U.S. Attorney: Prosecutorial charging and plea bargaining decisions are particularly illsuited for broad judicial oversight. In the first place, they involve exercises of judgment and discretion that are often difficult to articulate in a manner suitable for judicial evaluation. Such decisions are normally made as a result of careful professional judgment as to the strength of the evidence, the availability of resources, the visibility of the crime and the likely deterrent effect on the particular defendant and others similarly situated. Even if it were able to collect, understand and balance all of these factors, a court would find it nearly impossible to lay down guidelines to be followed by prosecutors in future cases. We would be left with prosecutors not knowing when to prosecute and judges not having time to judge. Redondo-Lemos, 955 F.2d at 1299 (internal citations and footnote omitted). The Ninth Circuit also observed that, in addition to the inherent practical difficulties, the separation of powers doctrine barred such judicial review: Such judicial entanglement in the core decisions of another branch of government - especially as to those bearing directly and substantially on matters litigated in federal court - is inconsistent with the division of responsibilities assigned to each branch by the Constitution. The Office of 12

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the United States Attorney cannot function as prosecutor before the court while also serving under its general supervision. The court, in turn, cannot both supervise the exercise of prosecutorial discretion and act as an impartial arbiter of the cases presented to it. In the end, the type of intense inquiry that would enable a court to evaluate whether or not a prosecutor's charging decision was made in an arbitrary fashion would destroy the very system of justice it was intended to protect. Redondo-Lemos, 955 F.2d at 1300. See also United States v. Banuelos-Rodriguez, 215 F.3d 969, 976 (9th Cir. 2000) (en banc) (holding that it would violate separation of powers principles for district court to sentence a defendant based on a comparison with other defendants who received plea bargains, as courts generally "have no place interfering with a prosecutor's discretion regarding whom to prosecute, what charges to file, and whether to engage in plea negotiations," as charging decisions "must be made by the executive, not the judicial, branch"). B. Striking a Notice of Intent to Seek the Death Peanlty Based on a District Court's View of Relative Culpability is Improper The district court in Littrell believed that the government did not properly take into account its failure to obtain the death penalty as to two defendants who the district court regarded as the "most culpable individuals" before deciding to proceed with the death penalty against defendant Littrell. 478 F. Supp. 2d at 1189-1192. Rudy Sablan quotes a portion of Littrell on that point. Defendant's Motion to Strike Notice of Intent at 11. It is not clear what significance this portion of Littrell has for Rudy Sablan since Rudy Sablan does not provide an explanation. However, assuming that Rudy Sablan is arguing that the government's decision to proceed with the death penalty against him is arbitrary and 13

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capricious because the jury deadlocked as to the death penalty on William Sablan, such argument has no legal significance. Given the deference that the Judicial Branch gives to the Executive Branch's charging decisions, the scope of judicial review of decisions to seek the death penalty is narrowly limited. In McCleskey v. Kemp, 481 U.S. 279 (1987), the petitioner used statistical evidence to argue that the death penalty was imposed based on improper reasons, namely, the race of the victim or defendant. The Supreme Court addressed the law governing the prosecution's decision to seek the death penalty in light of the defendant's statutory eligibility: [T]he policy considerations behind a prosecutor's traditionally wide discretion suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties, often years after they were made. Moreover, absent far stronger proof, it is unnecessary to seek such a rebuttal, because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United States Constitution and Georgia laws permit imposition of the death penalty. 481 U.S. at 296-97 (internal citations, quotations, and footnotes omitted). The Supreme Court in McCleskey went on to discuss the assertion that the death penalty statute was unconstitutional because discretion might mean that some other similar defendants would not receive death sentences: McCleskey's argument that the Constitution condemns the discretion allowed decisionmakers in the Georgia capital sentencing system is antithetical to the fundamental role of discretion in our criminal justice system. Discretion in the criminal justice system offers substantial benefits to the criminal defendant. Not only can a jury decline to impose the death 14

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sentence, it can decline to convict or choose to convict of a lesser offense. Whereas decisions against a defendant's interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable. Similarly, the capacity of prosecutorial discretion to provide individualized justice is firmly entrenched in American law. As we have noted, a prosecutor can decline to charge, offer a plea bargain, or decline to seek a death sentence in any particular case. . . Of course, the power to be lenient also is the power to discriminate, but a capital punishment system that did not allow for discretionary acts of leniency would be totally alien to our notions of criminal justice. 481 U.S. at 311-12 (internal citations, quotations, and footnotes omitted; emphasis added). The Supreme Court's decision in McCleskey v. Kemp suggests the limits of the Court's review here. If Rudy Sablan is statutorily eligible for the death penalty, it does not matter whether a co-defendant, even a more culpable co-defendant, did not receive the death penalty. The Court must respect the Executive Branch's discretionary decision to seek the death penalty. The impropriety of striking the government's death penalty notice based on the court's view of relative culpability is also apparent from cases considering the conviction and punishment of arguably less culpable co-defendants. If the conviction and punishment of a less culpable co-defendant does not violate due process, how can it be a due process violation merely to charge a less culpable co-defendant? In Hatch v. Oklahoma, 58 F.3d 1447 (10th Cir. 1995), two defendants, Hatch and Ake, committed a home invasion robbery. During the robbery, they tied up Richard and Marilyn Douglass and their son Brooks and attempted to rape the 12-year-old daughter, 15

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Leslie. Eventually, "Ake told [Hatch] to return to the car, turn it around, and `wait for the sound.' After [Hatch] left the house, Ake shot Richard and Leslie twice and Marilyn and Brooks once. Marilyn died from the gunshot wound, while Richard died from the combination of gunshot wounds and strangulation. The two children survived." 58 F.3d at 1451. Ake, who had fired all the shots and killed both victims, was sentenced to life imprisonment. Id. at 1466 n.14. Hatch was sentenced to death for both murders. Id. at 1452. Hatch argued that because the more culpable co-defendant was not given the death penalty, it was unconstitutional for him to be sentenced to death. "[P]etitioner contends that the Constitution requires that he receive a sentence proportional to others who have committed the same offense. In other words, petitioner believes that his sentence should be no more severe than his codefendant Glen Ake, because he asserts that Ake is more culpable for the murders." Id. at 1466. The Tenth Circuit rejected the argument: In this case, petitioner was constitutionally entitled to a determination of his individual culpability, and he received that individualized consideration. The Constitution does not demand that he receive a review of his comparative responsibility as well. 58 F.3d at 1466 (citations omitted). See also Allen v. Woodford, 395 F.3d 979, 1018 (9th Cir. 2005) ("neither the Eighth Amendment nor due process requires comparative proportionality review in imposing the death penalty"). The Supreme Court in Pulley v. Harris, 465 U.S. 37 (1984), considered the issue of whether the Constitution demands a comparative proportionality review that "purports 16

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to inquire ... whether the [death] penalty is ... unacceptable in a particular case because disproportionate to the punishment imposed on others convicted of the same crime." Id. at 44.5 The Supreme Court rejected the proposition as contrary to Jurek v. Texas, 428 U.S. 262 (1976), Gregg v. Georgia, 428 U.S. 153 (1976), and Proffitt v. Florida, 428 U.S. 242 (1976). See also Beardslee v. Woodford, 358 F.3d 560, 579-81 (9th Cir.2004) (rejecting the argument that "different sentences for equally culpable co-defendants violate the prohibition against arbitrary imposition of the death penalty in Furman"); Bush v. Singletary, 99 F.3d 373, 375 (11th Cir.1996) (per curiam) (holding that no federal constitutional claim arose by reason of the fact that the defendant's death sentence was disproportionate to that of his codefendant, whose death sentence had been vacated on appeal); Russell v. Collins, 998 F.2d 1287, 1294 (5th Cir.1993) (denying relief to a habeas petitioner who argued that his death sentence was disproportionate to that of a codefendant who had pled guilty and been sentenced to 60 years in prison). In Getsy v. Mitchell, 495 F.3d 295, 304-309 (6th Cir. 2007) (en banc), the defendant argued that his death sentence was unconstitutionally arbitrary or disproportionate in relation to that received by co-defendant Santine, "the mastermind"of the plot, who directed Getsy and others to kill the victim and who received a life sentence in a separate and subsequent trial. Getsy conceded that, at the time his death sentence was imposed, it was not arbitrary or disproportionate. Instead, he claimed that his death In its Order of April 18, 2006 concerning Phase II, document 1760, the Court cited Pulley v. Harris in rejecting the defendants' proportionality arguments. 17
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sentence became unconstitutional after a different jury sentenced co-defendant Santine to life imprisonment. Id. at 304. In rejecting his argument, the Sixth Circuit held that "Getsy simply had no constitutional guarantee that his jury reach the same results as prior or future juries dealing with similar facts, irrespective of the offense with which he was charged. Criminal defendants are instead protected from irrational convictions by the due process requirement that a conviction must be supported by sufficient evidence." Id. at 307. See also United States v. Johnson, 495 F.3d 951, 960-962 (8 th Cir. 2007) (rejecting claim that "because Honken, the principal, received life sentences for the murders of DeGeus and Lori Duncan, imposing the death penalty for their murders on Johnson, who had only aided and abetted the killings, would be a disproportionate punishment"). Thus, if Rudy Sablan were tried and given the death penalty in this case, so long as there was sufficient evidence to support his conviction he would have no constitutional grounds to claim that the death sentence should be vacated because William Sablan was given a life sentence. Given that fact, it would be completely inappropriate for this Court to strike the government's Notice of Intent to Seek the Death Penalty before trial based on the same arguments. There is an additional reason why the defendant's Littrell argument should be rejected. Section 3592(a)(4) of the Federal Death Penalty Act ("FDPA") allows Rudy Sablan to assert as a statutory mitigating factor in any penalty phase that "[a]nother defendant or defendants, equally culpable in the crime, will not be punished by death."

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The government's decision to proceed with the death penalty against Rudy Sablan cannot be "arbitrary and capricious" if the decisionmaker ­ the jury ­ will be informed that William Sablan did not receive the death penalty and can weigh the fact along with the other aggravators and mitigators in determining an appropriate punishment. "[T]he FDPA has sufficient safeguards ­ notably the requirements that a jury find beyond a reasonable doubt the existence of one statutory aggravating factor and at least one of four requisite levels of specific intent on the part of a defendant, not to mention various other procedural protections ­ such that proportionality review is not required in order for the FDPA to pass constitutional muster." United States v. Allen, 247 F.3d 741, 760 (8th Cir. 2001), vacated on other grounds, 536 U.S. 953 (2002). Accord United States v. Higgs, 353 F.3d 281, 320-21 (4th Cir. 2003); United States v. Jones, 132 F.3d 232, 240-41 (5th Cir. 1998). C. Conclusion The district court in Littrell chose to ignore the Ninth Circuit, other courts of appeal, and the Supreme Court. It did not make new law; it simply ignored existing law. The reasoning of Littrell is seriously flawed, and any argument by Rudy Sablan based upon it should be rejected.

For the foregoing reasons, this Court should deny Rudy Sablan's Motion to Strike Notice of Intent to Seek the Death Penalty.

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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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CERTIFICATE OF SERVICE I hereby certify that on this 12th day of October, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO STRIKE NOTICE OF INTENT TO SEEK THE DEATH PENALTY 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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