Free Motion in Limine - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1702

Filed 02/21/2006

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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. ______________________________________________________________________________ MOTION IN LIMINE REGARDING ALLEGATIONS OF FUTURE DANGEROUSNESS (R-54) (Phase III) ______________________________________________________________________________ Rudy Sablan, by and through counsel, requests an order prohibiting evidence or argument regarding non-specific acts and character as stated in Section (C) of the NOI and more fully set forth herein. 1. The government alleges in Section (C) of the NOI that Mr. Sablan is likely to

commit acts of violence in the future which would be a continuing threat to the lives and safety of others because he has: [E]ngaged in a continuing pattern of conduct in and out of an institutional setting, has threatened others with violence, has demonstrated low rehabilitative potential and/or has demonstrated lack of remorse . . . . Mr. Sablan is entitled to due process of law in the penalty hearing, including notice of the evidence he must be prepared to confront. Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197 (1977). The vague assertions in the NOI in this case violate due process. "To carefully define the statutory aggravators, but then allow wholesale introduction of nonstatutory aggravating

Case 1:00-cr-00531-WYD

Document 1702

Filed 02/21/2006

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information would defeat the goal of guided and measurable jury discretion . . . ." United States v. Davis, 912 F.Supp. 938, 943 (E.D. La. 1996); United States v. Karake, 370 F.Supp.2d 275, 278 (D.D.C. 2005) (an aggravating factor may not be unconstitutionally vague . . . must not be duplicative of another aggravating factor and must be particularly relevant to the sentencing decision). 2. This section of the NOI is disturbing to Rudy Sablan not only because it is vague,

overbroad and duplicitous but because it then lists specific incidents with the introductory phrase "including but not limited to." The government cannot be given an open-ended license to present unlimited "information" during the hearing. 3. Rudy Sablan requests an order as follows: ! ! That the NOI not be given to the jury in any form; That the language in ¶ (c) "including but not limited to" be stricken and that the government be limited to evidence of and findings on specific acts for which notice has been constitutionally given, and which the Court has ruled admissible, to support the future dangerousness aggravator, if it is allowed to go to the jury at all. 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] Attorneys 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) 798-3872 E-mail: [email protected]

Case 1:00-cr-00531-WYD

Document 1702

Filed 02/21/2006

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CERTIFICATE OF SERVICE I hereby certify that the foregoing MOTION IN LIMINE REGARDING ALLEGATIONS FUTURE DANGEROUSNESS (R-54) (Phase III) was electronically filed with the Clerk of the Court using the CM/ECF system on this 21st day of February, 2006, which will send notification of such filing to the to the following e-mail addresses: Brenda Taylor [email protected] Philip Brimmer [email protected] Michael Hegarty [email protected] Patrick J. Burke [email protected] Dean Neuwirth [email protected] Nathan D. Chambers [email protected] Susan L. Foreman [email protected]

s/Polly Ashley