Free Motion in Limine - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2077

Filed 12/18/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

GOVERNMENT'S MOTION IN LIMINE TO PRECLUDE USE OF AFTERACTION REPORT

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, moves the Court to preclude William Sablan from introducing the "After-Action Review of October 10, 1999 - Inmate Death" or using such report in examining witnesses. 1. After the homicide of Joey Estrella on October 10, 1999, the warden of USP Florence formed a committee called the After-Action Review Team to "investigate the incident, analyze the chronology of events, and prepare an After-Action Review Report." The Team did, in fact, prepare such a report, entitled the "After-Action Review of October 10, 1999 - Inmate Death." Exh. C to the October 2002 motions hearings. The

Case 1:00-cr-00531-WYD

Document 2077

Filed 12/18/2006

Page 2 of 4

After-Action report contains a chronology of events, a factual summary, and a recommendation section. The report states that it is based on "interviews with involved staff and examination of the available documentation and videotape." 2. In order introduce the report, which otherwise consists of multiple layers of hearsay, the defendant would need to demonstrate that it was "made pursuant to authority granted by law." Fed. R. Evid. 803(8)(C). Until such showing is made, the After-Action report does not escape the hearsay rules. 3. The Afer-Action report contains "matters observed by police officers and other law enforcement personnel." Fed. R. Evid. 803(8)(B). These matters are hearsay and cannot be introduced as part of the report. 4. The recommendation section of the report is irrelevant to the issues in this case. It consists of recommendations for changes in procedures or training. None of those recommendations bears on the issue of either the defendant's guilt or the defendant's punishment. Moreover, the recommendation section does not consist of "factual findings." As a result, Rule 803(8) does not except it from the hearsay rules. Finally, as a matter of policy, the BOP should be encouraged to make recommendations for change after an incident such as this. Allowing the defense to introduce the After-Action recommendations in this trial will have the effect of deterring similar BOP investigations and recommendations in the future.

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Case 1:00-cr-00531-WYD

Document 2077

Filed 12/18/2006

Page 3 of 4

WHEREFORE the United Stated requests that William Sablan be precluded from introducing the "After-Action Review of October 10, 1999 - Inmate Death." or using such report in examining witnesses.

Respectfully submitted this

18th

day of December, 2006.

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) 454-0403 E-mail address: [email protected] Attorney for Government

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Case 1:00-cr-00531-WYD

Document 2077

Filed 12/18/2006

Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that on this _ 18th_th day of December, 2006, I electronically filed the foregoing GOVERNMENT'S MOTION IN LIMINE TO PRECLUDE USE OF AFTER-ACTION REPORT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected]

Susan Lynn Foreman [email protected]

s/ Dorothy Burwell DOROTHY BURWELL Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0400 E-mail address [email protected]

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