Free Motion to Amend/Correct - 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-531-WYD-02 UNITED STATES OF AMERICA, Plaintiff, v. 2. RUDY CABRERA SABLAN, Defendant.

FIFTH AMENDED NOTICE OF INTENT TO SEEK THE DEATH PENALTY FOR RUDY CABRERA SABLAN

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, and through Brenda K. Taylor and Philip A. Brimmer, Assistant United States Attorneys, pursuant to 18 U.S.C. § 3593(a), hereby notifies the Court and defendant Rudy Cabrera Sablan that the Government believes the circumstances of the offense charged in the one count Second Superseding Indictment are such that, in the event of the defendant's conviction of this offense, a sentence of death is justified under Chapter 228 (Sections 3591 through 3598) of Title 18 of the United States Code, and that the Government will seek the sentence of death for the offense of: Count One, the first degree murder of Joey Jesus Estrella in violation of 18 U.S.C. §§1111 and 2. The Government proposes to prove the following factors as justifying a sentence of death.

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COUNT ONE FIRST DEGREE MURDER OF JOEY JESUS ESTRELLA A. Statutory Proportionality Factors Enumerated under 18 U.S.C. § 3591(a)(2)(A)-(D). 1. Intentional Killing. The defendant intentionally killed and aided and abetted the killing of Joey Jesus Estrella. Section 3591(a)(2)(A). 2. Intentional Infliction of Serious Bodily Injury. The defendant intentionally inflicted and aided and abetted the infliction of serious bodily injury that resulted in the death of Joey Jesus Estrella. Section 3591(a)(2)(B). 3. Intentional Acts to Take Life or Use Lethal Force. The defendant intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and Joey Jesus Estrella died as a direct result of the act. Section 3591(a)(2)(C). 4. Intentional Acts in Reckless Disregard for Life. The defendant intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and Joey Jesus Estrella died as a direct result of the act. Section 3591(a)(2)(D).

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B.

Statutory Aggravating Factors Enumerated under 18 U.S.C. § 3592(c). 1. Heinous or Depraved Manner of Committing Offense. The defendant committed the offense in an especially heinous or depraved manner

in that it involved serious physical abuse to the victim. Section 3592(c)(6). The victim was strangled with a ligature and then his throat was slashed. In addition, his abdomen was cut open and internal organs removed and displayed. This conduct constitutes the intentional infliction of senseless and gratuitous violence upon a helpless victim within the meaning of "especially heinous." The defendant's enjoyment of the killing, evidenced by celebratory shouts, offers of body parts of the victim to other inmates, and appearing to bite one of the removed organs constitutes relishing the crime within the meaning of "especially depraved." See, e.g., United States v. Jones, 132 F.3d 232, 250 (5 th Cir. 1998), aff'd on other grounds, 527 U.S. 373 (1999); accord United States v. Hall, 152 F.3d 381, 414-15 (5 th Cir. 1998), cert. denied, 526 U.S. 1117 (1999). Significant injury and damage was inflicted upon the victim's body above and beyond what was necessary to commit the murder thereby constituting "serious physical abuse" of the victim. Serious physical abuse may be inflicted either before or after death and does not require that the victim be conscious of the abuse at the time it was inflicted. See Richmond v. Lewis, 506 U.S. 40, 51 (1992); Lewis v. Jeffers, 497 U.S. 764, 766-67 (1990).

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C. Other, Non-Statutory, Aggravating Factors Identified under 18 U.S.C. § 3593(a)(2). 1. Future Dangerousness of the Defendant. The defendant is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others. Simmons v. South Carolina, 114 S.Ct. 2187, 2193 (1994). In addition to the capital offense charged in the Second Superseding Indictment and the statutory aggravating factor alleged in the Notice of Special Findings of the Second Superseding Indictment and in this Fifth Amended Notice, the defendant has engaged in a continuing pattern of violent conduct in an institutional setting, has threatened others with violence, has demonstrated low rehabilitative potential, and/or has demonstrated lack of remorse, by one or more of the following: Institutional Setting a) Criminal Case No. 1:96-CR364-CC (Assault with a Deadly Weapon): On February 7, 1997, Rudy Cabrera Sablan was found guilty of Assault with a Deadly Weapon, a violation of 18 U.S.C., Sections 7 & 113(a)(3), in the United States District Court for the Northern District of Georgia. This was an assault committed on or about February 15, 1996, at the U.S. Penitentiary, Atlanta, Georgia, against another inmate, Kyung Hwan Mun. Sablan repeatedly stabbed the victim with an ice-pick type weapon in the head and neck. Two of the stab wounds punctured the victim's carotid artery. The weapon appeared to have been fashioned from a mop wringer and was six to seven inches

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long. On or about April 18, 1997, Sablan was sentenced to 110 months incarceration. This incident is reported to have been connected with the defendant's involvement with a prison gang known as the Asian Family; the victim was attacked shortly after he refused the defendant's request that the victim join the organization. b) Incident Report No. 511205 (Serious Assault): On or about June 9, 1997, at the USP, Florence, Colorado, inmate Rudy Cabrera Sablan was found to have committed a serious assault on another inmate, Alan Carinio. The hearing officer found that the defendant was one of three inmates involved in the assault. The victim was forced to the floor of his cell and stabbed in the ear with a knife. He was then stomped and kicked as he lay on the floor. The hearing officer concluded that the location of the injury reflected an intent to cause serious bodily injury or death. c) Incident Report No. 544140 (Possession of Weapon): On or about December 3, 1997, at the USP, Florence, Colorado, inmate Rudy Cabrera Sablan was in possession of a weapon in his cell. Officers found a 13 inch by 2 inch wide piece of metal hidden in the light fixture of the cell. The metal had been cut down on one side and fashioned into an edge. The defendant admitted that the weapon was his, stating that he was going to fix it up and hold on to it. d) Incident Report No. 600457 (Serious Assault): On or about June 13, 1998, at the USP, Florence, Colorado, Rudy Cabrera Sablan was found to have committed a serious assault on another inmate, Michael Menzer. The defendant admitted assaulting

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the inmate with his hands and feet and then tying him up. The victim inmate suffered serious head and body injuries. e) Incident Report No. 654106 (Fighting): On or about January 29, 1999, at the USP, Florence, Colorado, Rudy Cabrera Sablan was involved in a fight with another inmate. An officer observed the defendant try to break up a fight between two other inmates. When one of these inmates hit the defendant, the defendant then punched, kicked, and stomped the victim, stopping only when physically separated by staff. f) Incident of April 11, 2008: On or about April 11, 2008, during the guilt/innocence phase of the trial of Rudy Sablan, the defendant assaulted another prisoner and made threatening statements to others, including, but not limited to, "I'm going to break someone's fucking neck," while he and other prisoners, while in custody, were being loaded into a van to be transported from the Alfred A. Arraj U.S. Courthouse, Denver, Colorado, to the Federal Correctional Institution at Englewood, Colorado. 2. Victim Impact Evidence Title 18, United States Code, Section 3593(a)(2) specifically allows for the inclusion of victim impact factors in the government's notice of intent to seek the death penalty. The statute provides in pertinent part: The factors for which notice is provided under this subsection may include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim's family, and any other relevant information.

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The defendant caused injury, harm, and loss to the family of Joey Jesus Estrella as evidenced by the impact of his death on his family. CONCLUSION Based on all of the information regarding the defendant's prior criminal history and assaultive behavior available from the Bureau of Prisons at this time, the Government believes that the above-listed statutory and non-statutory aggravating factors apply to defendant Rudy Cabrera Sablan.

Respectfully submitted this 9 th day of May, 2008.

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) 454-0406 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 9th day of May, 2008, I electronically filed the foregoing FIFTH AMENDED NOTICE OF INTENT TO SEEK THE DEATH PENALTY FOR RUDY CABRERA SABLAN with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: 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] Attorney 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) 730-0858 Email: [email protected] Attorney for Defendant Rudy Sablan

s/Valerie Nielsen VALERIE NIELSEN Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0150 Fax: (303) 454-0406 E-mail address: [email protected]

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