Free Motion to Preclude - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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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 TO PRECLUDE EVIDENCE OF ALLEGED STATUTORY AGGRAVATOR (4/12/88 Conviction) (R-51) (Phase III) ______________________________________________________________________________ Rudy Sablan, by and through his counsel, requests an order precluding evidence of an alleged statutory aggravator (4/12/88 conviction) in this matter for the reasons set forth herein. EVIDENTIARY STANDARDS IN A CAPITAL PENALTY HEARING Because the death penalty is uniquely different in its severity and finality, increased judicial scrutiny to insure heightened reliability in the sentencing process is constitutionally required. Caldwell v. Mississippi, 472 U.S. 320, 329, 105 S.Ct. 2633 (1985). As the Court emphasized in Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197 (1977): [D]eath is a different kind of punishment from any other which may be imposed in this country . . . . From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the

Case 1:00-cr-00531-WYD

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death sentence be, and appear to be, based on reason rather than caprice or emotion. Id., at 357-58 (citation omitted). A defendant has a constitutional right to due process of law in sentencing hearings. Id. Section 3593(c) is only the "starting point" in determining whether evidence or "information" is reliable enough to be admitted and considered in a death penalty hearing. United States v. O'Driscoll, 250 F.Supp.2d 432, 435 (M.D.Pa. 2002). Further, § 3593(c) "does not permit an evidentiary free-for-all that undermines reliability" id., citing United States v. Beckford, 964 F.Supp. 993, 1002 (E.D.Va. 1997). STATUTORY AGGRAVATORS In this case, the government has given notice of two statutory aggravating factors. Under 18 U.S.C. 3592(c) (previous convictions of other serious offenses) the government lists a plea to aggravated assault in the Superior Court of Guam on April 12, 1988. The offense occurred on December 4, 1986, when Rudy Sablan was 16 years old. The plea was entered pursuant to a plea agreement under which Mr. Sablan resolved two misdemeanor charges and three traffic charges arising out of the same incident, a driving under the influence on April 8, 1987. It is unclear how Mr. Sablan was charged as an adult for this offense when he was only 16 at the time of the acts. The definition of "serious bodily injury" under the law of Guam is also unclear. Would this meet the requirements of "serious bodily injury" under 18 U.S.C. 3592(c)(4)? The Court must make findings on these issues. Mr. Sablan's position is that the conviction the government seeks to use in this instance is: (1) not a federal or state offense as required by Section (c)(4) (it is under the laws of Guam); (2) that the underlying facts do not

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meet the serious bodily injury requirement of (c)(4); and (3) that it should be excluded because Mr. Sablan was a juvenile (only 16) at the time of the offense and 17 at the time of the plea. All of these factors should be considered by the Court in its "gatekeepng" role under constitutional considerations of due process as well as the § 3593(c) analysis. Mr. Sablan's age at the time of the offense should be an important consideration. Juvenile adjudications cannot generally be used even to impeach a witness. United States v. Williams, 963 F.2d 1337, 1341 (10th Cir. 1992) (not error for the court to exclude evidence of juvenile adjudications of a government witness). If juvenile adjudications cannot be used even for this purpose, are they not unfairly prejudicial and misleading in a death penalty hearing? The fact that the federal sentencing guidelines provide for consideration of juvenile adjudications, in some instances, see, e.g., United States v. Johnson, 28 F.3d 151 (1994), does not control this issue. Capital sentencing hearings are constitutionally different, requiring a higher degree of scrutiny and reliability. They are not conducted under the sentencing guidelines. They require precise factual findings by a jury after a hearing that comports with due process of law. Most importantly, this conviction would not be considered even under the guidelines because it is a sentence for a foreign conviction. (See commentary to U.S.S.G. 4A1.1.) Foreign convictions may not be used to prove an element of an offense. Small v. United States, 125 S.Ct. 1752 (2005) (Japanese conviction could not be used as a predicate for felon in possession of a weapon conviction), or to enhance a sentence. United States v. Concha, 233 F.3d 1249 (10th Cir. 2000) (Foreign convictions cannot be used to enhance sentence under the Armed Career Criminal Act.). Under most guideline sections, the prior sentence must be within 10 years to be considered at all. The guidelines do consider the age of the defendant at the time of the offense. 3

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For example, under 4A1.1(b), an offense which occurred prior to the defendant's 18th birthday is counted "only if confinement resulting from such sentence extended into the five year period preceding the defendant's commencement of the instant offense." (See 4A1.2(d) and commentary.) From Guam court records it appears that Mr. Sablan received only a one-year sentence for this offense, not meeting the requirements of exceeding one year and one month for consideration under the guidelines for three criminal history points; 4A1.1(a). In other words, the conviction the government wants to use as a statutory aggravator to sentence Mr. Sablan to death would probably not be considered as a significant aggravator even under the broad standards of the sentencing guidelines. Further, under the guidelines the Court would be called upon to make a determination as to whether the criminal history "over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes." 4A1.3(c)(2). In capital cases, the Court must engage in this analysis under heightened Eighth Amendment standards. If in fact, this aggravator, over-represents factors the jury must consider, it should be excluded from the penalty hearing. In this case, the aggravator in question must be excluded on all of the grounds discussed herein. 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 4

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]

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CERTIFICATE OF SERVICE I hereby certify that the foregoing MOTION TO PRECLUDE EVIDENCE OF ALLEGED STATUTORY AGGRAVATOR (4/12/88 Conviction) (R-51) (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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