Free Brief - 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 Action No. 00-cr-00531-WYD-2 UNITED STATES OF AMERICA, Plaintiff, v. 2. RUDY CABRERA SABLAN, Defendant.

GOVERNMENT'S BRIEF RE DEFENDANT'S DISPUTED JURY INSTRUCTIONS FOR LIABILITY PHASE

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, submits the following brief on the government's objections to the defendant's Disputed Instructions. 1. Burden of Proof ­ Defendant's Disputed Instruction A uses the "hesitate to act" language which the Tenth Circuit pattern instruction has abandoned. The "hesitate to act" language is discussed in Tillman v. Cook, 215 F.3d 1116, 1126 (10 th Cir. 2000). Justice Ginsburg has criticized the "hesitate to act" language. See Victor v. Nebraska, 511 U.S. 1, 24 (1994) (Ginsburg, J., concurring in part). The government acknowledges, however, that such language has been upheld in the past. See Tarin v. Lemaster, 2001 WL 883299 (10 th Cir. 2001). The government has tendered Disputed Instruction No. 1,

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which is Tenth Circuit Pattern Instruction 1.05. The Tenth Circuit Pattern Instruction uses the "firmly convinced" language, which the Ninth Circuit has also endorsed. See United States v. Velasquez, 980 F.2d 1275, 1278 (9 th Cir. 1992). 2. Elements of First Degree Murder and Lesser Included Offenses ­ Defendant's Disputed Instructions B, C, D, E and F. The government approves of these instructions as to form. However, the government objects to these instructions until such time as sufficient evidence has been adduced for adding language concerning defense of another. If there is not sufficient evidence on defense of another, then the defendant is also not entitled to an instruction concerning involuntary manslaughter. The government has tendered alternative instructions (Disputed Instruction Nos. 2-5). 3. Elements of Defense of Another ­ Defendant's Disputed Instruction G. The government does not object to the form of the instruction. However, the government objects to this instruction until such time as sufficient evidence has been adduced to entitle him to this defense. 4. Aid and Abet ­ Defendant's Disputed Instruction H. The government believes that the Court correctly instructed the jury in the William Sablan trial and has tendered the instruction that the Court gave there. See Government's Disputed Instruction No. 6. The government objects to the last sentence in the second paragraph of Defendant's Disputed Instruction H, which states "This law makes it a crime to intentionally help someone else commit a crime." Although taken from the Tenth Circuit model instruction, this

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sentence's use of "intentionally" is confusing. The word "intentionally" is already used in connection with the elements of First Degree Murder and Voluntary Manslaughter. The jury may mistakenly believe that, in order for them to find Rudy Sablan guilty as an aider and abettor of voluntary manslaughter, it has to find that Rudy or William Sablan intended to kill Mr. Estrella ("intentionally help"). Given that the aiding and abetting instruction used in the William Sablan trial already explains the concept, there is no need to add this sentence. 5. The government objects to the language in the second element of Defendant's Disputed Instruction H. The first two sentences are taken from the Tenth Circuit Pattern Instruction. However, those concepts are clearly explained in Court Instruction No. 23 from the William Sablan trial. The last sentence in the second element is a misstatement of the law. For example, the jury can convict Rudy Sablan as an aider and abettor of voluntary manslaughter without finding that "Rudy Sablan knew that William Sablan intended to kill Mr. Estrella." As the defendant's own voluntary manslaughter instruction states, William Sablan could have intended only to cause the victim serious bodily injury or could have acted recklessly with extreme disregard for human life. William Sablan's intent to kill the victim is not necessarily an element of voluntary manslaughter. It is also not an element of involuntary manslaughter. As a result, the last sentence of the second element is an incorrect statement of the law. 6. The government also objects to the last paragraph of Defendant's Disputed

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Instruction H. Rudy Sablan's behavior after the crime is important evidence of him having participated in the crime. Thus, the jury should not be led to believe that Rudy Sablan's actions and statements after the killing are somehow irrelevant to their deliberations. 7. Instructions Naming William Sablan ­ Defendant's Disputed Instructions I, J, K, and L. The defendant has provided instructions directing the jury to determine whether William Sablan is guilty of First Degree Murder. Defendant's Disputed Instruction I. The defendant has also submitted a bridge instruction regarding lesser included offenses (Defendant's Disputed Instruction L), and definitions of self-defense (Defendant's Disputed Instruction J) and heat of passion (Defendant's Disputed Instruction K). The only authority that the defendant lists for these instructions is the fact that they were used in the William Sablan trial. That is precisely why they are inappropriate in this case. William Sablan is not on trial. Rather, Rudy Sablan is. The Court should properly instruct the jury about the elements of First Degree Murder and its lesser included offenses with reference to Rudy Sablan, not William Sablan. To the extent that the jury considers whether Rudy Sablan aided and abetted William Sablan's commission of one or more of those offenses, the aiding and abetting instruction tells the jury how to proceed. There is a great potential for confusion if the Court asks the jury to formally decide, as a parallel proceeding, whether William Sablan is guilty of murder. The government has not located any authority suggesting that a court should so instruct

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the jury. Neither the Tenth Circuit Pattern Instructions nor the pattern instructions for any other circuit suggest such an approach. 8. Informant Instruction ­ Defendant's Disputed Instruction M. The government objects to this instruction because its definition of "informant" is overbroad and therefore the instruction is misleading and prejudicial. For example, if a defendant decided to accept a plea bargain and testify against a co-defendant, this instruction would label him an "informant," even though that is not the common sense meaning of the word. Similarly, neither Peck nor Farmer are "informants" in the common use of the term. The general credibility instruction already covers the issues raised in this instruction and therefore this instruction is also duplicative. 9. Peck Credibility Instruction ­ Defendant's Disputed Instruction N. The government objects to this instruction because credibility is already covered in the general credibility instruction and, as a result, using a special instruction regarding Peck's credibility would unfairly single that witness out and suggest that the jury apply special rules to him. 10. Special Verdict Form A ­ The government objects to Section V of this form for the same reason referred to in Paragraph 7 above, namely, that there is no authority that suggests a jury must specifically find the principal guilty of a given crime in order to then convict the defendant as an aider and abettor. The aiding and abetting instruction already adequately explains the process the jury must go through to determine liability.

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No case law suggests that an aiding and abetting verdict must be supported by an interrogatory. An aider and abettor is equally culpable and is therefore treated as a principal.

Respectfully submitted this 5th day of March, 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) 454-0403 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 5th day of March, 2008, I electronically filed the foregoing GOVERNMENT'S BRIEF RE DEFENDANT'S DISPUTED JURY INSTRUCTIONS FOR LIABILITY PHASE 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 Rudy Sablan Donald R. Knight [email protected]

Forrest W. Lewis [email protected]

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

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