Free Motion in Limine - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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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 CONVICTIONS AND INCIDENTS ALLEGED IN SUPPORT OF NON-STATUTORY AGGRAVATING FACTOR OF FUTURE DANGEROUSNESS (R-53) (Phase III) ______________________________________________________________________________ Rudy Sablan, by and through counsel, requests an order prohibiting the introduction of evidence regarding certain convictions and incidents proffered by the government in the Notice of Intent ("NOI") as support for the aggravating factor of future dangerousness, as more fully set forth herein. LEGAL STANDARDS FOR ADMISSIBILITY OF NON-STATUTORY AGGRAVATING FACTORS The Court's evidentiary evaluation of non-statutory aggravating factors requires the application of a three-part test. First, the information must be relevant. The FDPA allows "only the introduction of relevant information (of which the government has given notice) that may tend to make the death penalty more appropriate." United States v. Gilbert, 120 F.Supp.2d 147, 150 (D. Mass. 2000). Second, the information must meet the heightened standard of reliability the Supreme Court has mandated in capital cases. Id. Third, even if relevant and reliable,

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aggravating factors may be excluded if their probative value is outweighed by the danger of unfair prejudice to the defendant, confusion of the issues, or a likelihood that the jury will be misled. Id., citing 18 U.S.C. 3593(c). As to relevancy, aggravating factors must be "particularly relevant to the sentencing decision" not relevant generally because they show the defendant has bad character. Gregg v. Georgia, 428 U.S. 153, 192, 96 S.Ct. 2909 (1976). The heightened need for reliability in capital sentencing means that some information normally used in non-capital sentencings will inevitably be excluded. United States v. Gilbert, supra, at 151. Further, the third part of the test, the § 3593(c) analysis, "must be weighed more carefully in a death penalty case than in normal cases." Id. Most courts have looked to the statutory aggravating factors to determine, by analogy, what type of misconduct or criminal activity is admissible as non-statutory aggravation. In United States v. Friend, 92 F.Supp.2d 534 (E.D. Va. 2000), the court articulated the following standards: An assessment of the factors prescribed by Congress as essential to qualifying a particular homicide as a death-eligible one teach that, as to relevance, an aggravating factor must have a substantial degree of gravity to be the sort of factor which is appropriate for consideration in deciding who should live and who should die. .... [T]o relax the standards for nonstatutory aggravating factors "would defeat the goal of guided and measurable jury discretion and return us to an unconstitutional system where the death penalty is `wantonly' and `freakishly' imposed." Id., at 544, citing United States v. Davis, 912 F.Supp. 938, 943 (E.D. Ca. 1996) (emphasis added).

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Non-statutory aggravating factors "assume a great significance in the penalty selection process, for they are weighed against the mitigating factors in order to decide whether to impose the death penalty . . . . Courts have scrutinized non-statutory aggravating factors to ensure that they meet a strikingly high level of relevance and reliability." United States v. Karake, 370 F.Supp.2d 275, 279 (D.D.C. 2005). INCIDENTS PROFFERED UNDER THE FUTURE DANGEROUSNESS FACTOR AS TO RUDY SABLAN 1. Under non-institutional setting, the government proffers a 1992 assault which

occurred on Saipan. The government suggests that Mr. Sablan kicked and punched the victim, causing a fractured rib. This is a foreign conviction which could not even be used to enhance a sentence in a non-capital case under the guidelines. See, U.S.S.G. 4A1.2(h); United States v. Gayle, 342 F.3d 89 (2d Cir. 2003) (conviction in foreign court could not be used as support for conviction of possession of firearm by convicted felon); Small v. United States, 125 S.Ct. 1752 (2005) (citing Gayle and reaching the same result regarding a Japanese conviction used as a predicate offense); United States v. Concha, 233 F.3d 1249 (10th Cir. 2000) (foreign convictions cannot be used to enhance sentence under Armed Career Criminal Act). Further, this incident does not possess the substantial degree of gravity to be appropriate for consideration of the death penalty. One year of imprisonment was imposed but nine months were suspended. No weapon was alleged to have been used. This incident must be excluded under every test described in Gilbert, supra. 2. The government next proffers a felon in possession of a firearm conviction in

1993. This case was filed in United States District Court for the District of Guam. This case and

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the second case were resolved pursuant to a plea agreement in which the government agreed to recommend the minimum term of incarceration under the guidelines. The prior Guam conviction for assault, 67F87, which is also a listed statutory aggravator in the NOI, was the predicate offense for both of the felon in possession cases. The facts behind this incident are that Rudy and others walked away from a Guam DOC facility to go to a 7-11 store to purchase whiskey. This was a common event and was referred to as "whiskey runs." The inmates would normally leave between 4 and 5 p.m. and return the next morning before head count. This time they decided not to return. They took a couple of shotguns from the residence of the uncle of one of them. They were apprehended shortly thereafter without incident. The probation officer concluded that: "Based on Mr. Sablan's statement of responsibility . . . and his cooperation, he has shown affirmative acceptance of responsibility." (¶ 18.) This incident must be stricken and the government precluded from using it in any manner. It is an illegal conviction because a foreign conviction (Guam) cannot be used as a predicate for a felon in possession of a weapon conviction. Small v. United States, supra. An illegal or invalid conviction cannot be used as an aggravator to support a death sentence. Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981 (1988) (use of conviction which was reversed on appeal as aggravator required reversal of death sentence, citing Eighth Amendment requirement of heightened reliability in capital sentencing). This incident also fails to pass the threshold requirements outlined above: relevance to the specific issue, reliability and 3593(c) analysis.

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3.

The third proffered non-institutional incident is the companion conviction to the

second incident; a felon in possession of a firearm case resolved as part of the plea agreement on October 1, 1993. This government must be precluded from using this incident as any part of a death sentence for the reasons stated in ¶ 2 above. The predicate act is the same improper Guam conviction for assault. This incident does not reflect a violent act and has no particularized relevance to the likelihood of future dangerousness, particularly in a corrections environment. The weapons were not used illegally. This case was purely a matter of possession. Mr. Sablan also believes that all of the "non-institutional" events are particularly irrelevant and unreliable because future dangerousness in this case must be evaluated in the context of a life sentence in a maximum security facility. Whiskey runs and stops at the home of relatives to pick up guns should not be a likely occurrence at USP or ADX. The jury must evaluate future dangerousness in the context of life in a prison setting. United States v. Gilbert, supra, at 154; United States v. Peoples, 74 F.Supp.2d 930, 932 (W.D. Mo. 1999) ("life in prison without parole, a firmly fixed federal requirement, must mean that the focus of dangerousness analysis is on prison conditions). 4. Under the category of acts committed in an institutional setting, the government

proffers an incident in 1995 at USP Lompoc in which Rudy Sablan was accused of stabbing another inmate. No criminal charges were filed. This case was not proven to any finder of fact beyond a reasonable doubt. It is unreliable and fails to meet threshold requirements for admission. The government suggests that inmate Jay Vought provided information regarding this incident to the government in December 2000, nearly six years later. This case had just been filed and Mr. Vought, an H-block government informant, was attempting to gain favorable 5

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concessions for his own cases. In a world of pathological liars and unreliable government informants, Mr. Vought stands alone. More evidence regarding the unreliability of anything Mr. Vought says will be provided at the hearing on this motion. The Court may recall, from hearings on R-42, that Mr. Vought bragged to another inmate that he intended to provide false testimony in this case against Rudy Sablan. Co-WITSEC inmate Raymond Oeschle wrote the U.S. Attorney to advise the government that Vought told him: [I]t was easy for him to deceive the government. Because he previously knew Rudy Sablan from general population, and he was simply telling the agents what they wanted to hear. Jay Vought made it clear to me that he was lieing [sic] to the government. Evidence of this incident, based on statements of Jay Vought, fails miserably and completely to pass the threshold requirement of heightened reliability and must be excluded. 5. The government next (NOI ¶ (b), p. 7) proffers a 1997 incident in which a BOP

hearing officer found that Rudy Sablan was one of three inmates involved in an assault. This incident was not proven beyond a reasonable doubt, nor is the role of Rudy, among the three inmates allegedly involved, defined. This incident fails to pass the threshold requirements for admissibility and must be excluded. 6. The government proffers a possession of a weapon incident in ¶ (c), p.8 of the

NOI which occurred in 1997. This incident was subject only to the BOP administrative procedures without due process. It fails to meet constitutional requirements for consideration in a capital sentencing hearing as set forth herein and must be excluded. 7. The "serious assault" alleged in ¶ (d), p. 8, of the NOI, was, again, only the

subject of administrative procedures without due process or adequate proof. The role of Rudy

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Sablan, if any, is not defined in the reports relating to this incident with the requisite level of reliability. 8. The January 29, 1999 incident alleged in ¶ (e), p. 8, is a good example of how

misleading and unfairly prejudicial these incidents can be. They are subject only to summary administrative procedures, without counsel or other due process. In this proffer, it is suggested that Rudy Sablan was trying to "break up a fight between two other inmates." It was only when one of the inmates attacked him, that Rudy acted in self-defense. 9. The incident in ¶ (f) reflects little more than a verbal expression of frustration that

what little privacy Rudy had in his cell had been invaded. It was nothing but talk, if it occurred at all. Does the government suggest that this incident has a "substantial degree of gravity . . . which is appropriate for consideration in deciding who should live and who should die"? This incident does not survive the Gilbert analysis discussed herein. PROCEDURE FOR DETERMINATION OF ADMISSIBILITY The Court must resolve these issues at the hearing in May, to allow the parties to effectively prepare for trial. In the event of a first-degree murder conviction, the sentencing hearing will commence quickly. Testimony from some of the witnesses will probably be necessary at the May hearings. The Court must see and hear live testimony from Jay Vought, for example, to resolve issues of admissibility regarding incidents which rely on his credibility. The proper starting point would be to require the government to submit written proffers as to all the incidents well in advance of the hearings. The Defendants should be allowed to submit written material and documents on each incident as well. The parties could then confer 7

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and attempt to reach a consensus on what testimony would be necessary or appropriate. Many of these incidents would require a significant amount of trial testimony, as mitigation from the defense, if they are submitted to the jury, including numerous inmate witnesses and persons from Saipan and Guam. It is imperative that these issues and any outstanding Phase II motions be resolved in May, if this case is to proceed to trial in January 2007. For the reasons stated herein, Rudy Sablan requests an order precluding the introduction of the evidence regarding future dangerousness proffered by the government. 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) 798-3872 E-mail: [email protected] Attorneys for Defendant Rudy Sablan

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CERTIFICATE OF SERVICE I hereby certify that the foregoing MOTION IN LIMINE REGARDING CONVICTIONS AND INCIDENTS ALLEGED IN SUPPORT OF NON-STATUTORY AGGRAVATING FACTOR OF FUTURE DANGEROUSNESS (R-53) (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

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