Free Status Report - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2366

Filed 03/15/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant. WILLIAM SABLAN'S STATUS REPORT RE: THE PENALTY PHASE Comes now, the defendant, William Sablan ("William"), by and through court appointed counsel, and provides this Status Report Re: the Penalty Phase. I. The Court's Phase III Ruling 1) The Court's 58 page Order dated February 26, 2007 provides the

framework for the Penalty Phase. 2) The Court has ruled that the Penalty Phase will not be bifurcated between

the "eligibility" and "selection" stages. 3) As a result of the Court's Ruling on Phase III Motions, the Court has

outlined what is permissible during the government's case-in-aggravation. 4) The Court's Order of February 26, 2007 established the framework for the

penalty phase. The Court has ruled that the hearing will not be bifurcated between the eligibility and selection stages and Crawford v. Washington, 541 U.S. 36 (2004) will be applied throughout. It has also imposed certain limitations on the government's case-inaggravation. The following prior cases or incidents that were alleged by the government are excluded in their entirety:

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Criminal Case No. 84-69 (Assault and Battery) Criminal Case No. 84-68 (Burglary) Incident on February 9, 2001 in the SHU at FCI-Englewood Incident Report No. 889220, May 29, 2001. The government's evidence on following prior cases or incidents are limited as indicated: Criminal Case No. 85-49 (Robbery) limited to certified copy of court judgment and sentence Criminal case No. 96-235 (Robbery) limited to certified copies of court documents and the live testimony of eyewitnesses to the robbery and/or the investigation; audio tapes and transcripts of Mr. Ono's and Mr. Nemoto's trial testimony, as well as their police interviews are excluded under Crawford. As to the Statutory Aggravating factor "previous conviction violent felony involving firearm", proof of the fact of conviction is limited to certified court documents. For purposes of future dangerousness, live testimony may be presented about the underlying facts. However, statements taken by Agent Bartosh of detainees of the Central Male Detention Facility are excluded pursuant to Crawford. II. Pending Issues 5) The government filed its Motion in Limine to Preclude Defendant Family

Impact Evidence regarding Dr. Frank Fortunati on January 2, 2007 (Dk #2104). The defense filed its Response on January 12, 2007 (Dk #2141). The Government filed a Reply on January 13, 2007 (Dk #2142). The Court deferred its final ruling on this Motion in Limine until the Penalty Phase. 6) The Court denied the government's Motion in Limine to Preclude Use of

After-Action Report (#2077), Court's Order dated January 4, 2007. However, the Court

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ordered that no reference be made to the After-Action Report in Opening statements during the Guilt-Innocence Trial. The After-Action Report was not admitted as an exhibit in the Guilt-Innocence Trial. The After-Action Report is obviously admissible in the Penalty Phase. The defendant requests that issues relating to the After-Action Report be resolved prior to the commencement of the Penalty Phase. III. Emerging Issues 7) The Prosecution has provided a revised Penalty Phase Exhibit List. The

defense contests the propriety of various government exhibits. The defendant will ask the Court for preliminary rulings relating to various exhibits. 8) The Prosecution has also provided a revised Witness List for the Penalty

Hearing dated March 13, 2007, in which several new witnesses are listed. There are issues relating to many of these new witnesses including, but not limited to, the following: a) Soccoro Cortez (Joey Estrella's Aunt), Lydia Ravelo (A friend of Joey Estrella) and Delores Estrella (Joey Estrella's sister). It seems that the government may be attempting to introduce victim impact testimony. This cannot be permitted at this late date. The defendant seeks clarification of the role of these witnesses Dr. Richard Frederick. The Court has already ruled that Dr. Richard Frederick is not permitted to testify in the Penalty Phase. Dr. Carlos Tomelleri. He was one of William's treating physicians. He was not previously listed as a witness. For several reasons, including the fact that neither a report nor a summary of his testimony has been provided to the defense, should not be permitted to testify. Gregory Hershberger. As of the date of the After-Action Report in November 1999, his title was Regional Director of the Bureau of Prisons. Perhaps he is still with the Bureau of Prisons. Not only was Mr. Hershberger not previously listed as a witness, the defense has not been advised of the nature of his testimony.

b) c)

d)

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e)

Christopher Synsvoll. Mr. Synsvoll is Supervisory Attorney for the Bureau of Prisons at USP/ADX at Florence. Not only was Mr. Synsvoll not previously listed as a witness, the defense has not been advised of the nature of his testimony. IV. Rebuttal Evidence

9)

18 U.S.C. §3593(c) provides guidance with respect to rebuttal testimony.

It states, in pertinent part: The defendant may present any information relevant to any mitigating factor. The government may present any information relevant to an aggravating factor for which notice has been provided under subsection (a)... The government and the defendant shall be permitted to rebut any information received at the hearing... 10) Evidence is not proper rebuttal evidence unless it tends to explain, repel,

contradict or disprove an adversary's proof. U.S. v. Kelley, (10th Cir. 187 Fd. Appx. 876 2006, U.S. App. Lexis 17084, July 6, 2006). V. Scheduling/Logistics 11) The defense may be presenting the testimony of several experts, including

Dr. Lovejoy, Dr. Verdeal, Dr. Scaer, Dr. Mark Cunningham, Dr. Rita Inos, Dr. Frank Fortunati and perhaps Dr. Craig Hemmens. As the Court well knows, it is difficult to coordinate the schedules of expert witnesses. The defense may be forced to seek some accommodation, regarding scheduling, with respect to these expert witnesses. Many of the other mitigation witnesses will be coming from Saipan. Therefore, the defense requests as much advance notice as possible from the government regarding its case-inaggravation, specifically, the probable length of its case and the number of witnesses who will be called. 12) The defense's mitigation investigator, Raelee Knapp will be acting as the

advisory witness during the Penalty Phase ­ and the translators won't be necessary.

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Respectfully Submitted, Dated: March 15, 2007 Respectfully submitted, /s/ Patrick J. Burke Patrick J. Burke Patrick J. Burke, P.C. 1660 Wynkoop Street, Ste 810 Denver, CO 80202 (303) 825-3050 Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, #500 Denver, CO 80202 (303) 825-2222 Susan L. Foreman 1660 Wynkoop Street, Ste 810 Denver, Colorado 80202 (303) 825-3050 CERTIFICATE OF SERVICE I hereby certify that on this 15th day of March, 2007 a true and correct copy of the above was filed with the Clerk of the Court using the CM/ECF system and was served via electronic mail to the following by defense counsel: Brenda Taylor ([email protected]) Phil Brimmer ([email protected]) /s/ Jennifer J. Feldman