Free Response to Motion - 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-00531-WYD-02 UNITED STATES OF AMERICA, Plaintiff, v. 2. RUDY CABRERA SABLAN, Defendant.

GOVERNMENT'S RESPONSE TO DEFENDANT'S PROFFER ON ESTRELLA 404(b) EVIDENCE

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 U.S. Attorneys, responds to Defendant's Proffer as follows: Procedural Background Prior to the Court granting Defendant's motion for severance, Defendant filed, and the Court ruled upon, a Motion in Limine Regarding Character and Habit of Mr. Estrella. In his original motion, Docket # 254, Rudy Sablan sought to admit various acts of Mr. Estrella pursuant to F.R.E. 404(a) to show Mr. Estrella to be the initial aggressor on October 10, 1999 and thereby support a claim of self-defense. He also sought to admit the evidence under F.R.E. 406, as evidence of "habit." After hearing argument, the Court issued a written opinion on January 17, 2006,

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prior to its severance ruling, holding that evidence of Mr. Estrella's character on the issue of self-defense pursuant to F.R.E. 404(a) may only be offered at trial through reputation and opinion, not through proof of specific acts. Docket #1655 at 4. The Court left open the possibility that specific acts of the victim may be admissible pursuant to F.R.E. 404(b) if the evidence met the "stringent criteria" the Tenth Circuit has required for admission under that rule, or pursuant to Rule 406 if Defendant could show that Mr. Estrella's acts of violence rose to the level of habit. Docket #1655 at 6-7. The Court discussed in detail the Rule 404(b) criteria for admissibility set out in United States v. Talamante, 981 F.2d 1153, 1156 (10 th Cir. 1992),1 and then concluded: From the foregoing, Defendant would have to show how any prior acts of violence by Estrella are "`relevant to an issue in the case by' articulating precisely the evidentiary hypothesis by which a fact of consequence must be inferred from the evidence of other acts." [United States v.] Harrison, 942 F.2d at 759. Defendant would also have to show a clear and logical connection between the earlier acts and the incident in question. Docket #1655 at 7. The Court went on to say that to satisfy his burden under 404(b), Defendant would have to show that the "acts occurred within close proximity of the incident at issue," and "may need to show that he knew of the specific acts of violence that he seeks to admit, or at

"First, `although evidence of other acts is not admissible to prove the defendant's predisposition to commit the crime charged, it may be admissible to prove his or her intent, knowledge, absence of mistake, or motive with respect to that crime.' United States v. Harrison, 942 F.2d 751, 759 (10th Cir. 1991). The evidence: `(1) must tend to establish intent, knowledge, motive, identity or absence of mistake or accident; (2) must also be so related to the charge that it serves to establish intent, knowledge, motive, identity or absence of mistake or accident (or in this type of case, the state of mind of the Defendant about the victim, ie., fear for his safety); (3) must have real probative value, not just possible worth; and (4) must be close in time to the crime charged.' Id." Docket #1655 at 7. 2

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least of Estrella's violent character." Docket #1655 at 8. Finally, the Court noted that the evidence would have to survive the balancing test of F.R.E. 403 to be admissible and that the Tenth Circuit "seemed to take a dim view of such evidence in Talamante." Docket #1655 at 9. CURRENT MOTION & PROFFER Following the severance of the defendants for trial and the trial of William Sablan, Defendant was given the opportunity to supplement his original motion. His Supplement to Pending Motions, Document #2632, filed on October 12, 2007, contends that he is entitled to a self-defense instruction because one was given in William Sablan's trial. Defendant also gives notice that he "intends to present evidence, by opinion or reputation, of Mr. Estrella's character for aggressive, assaultive behavior, particularly when intoxicated." Supplement to Pending Motions at 3. The Supplement also advises that a written proffer and supplemental brief would be filed in support of evidence of specific acts to be offered at trial under F.R.E. 404(b) and 406 within the parameters set out by the Court in its Order of January 17, 2006, Docket #1655. A written proffer was filed on November 23, 2007, Docket #2657, briefly listing four specific incidents Defendant intends to offer at trial pursuant to F.R.E. 404(b). The defendant's proffer fails to allege any purpose for this evidence, much less a proper purpose under Rule 404(b), and no supplemental brief has been filed in support of the proffer. This evidence simply does not meet the criteria of admissibility under Rule

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404(b). Its only effect would be to demean the value of the victim as a human being and to confuse the issues. The government strongly opposes its use at trial. Further, the government also opposes the introduction of reputation or opinion evidence of the victim's character for violence pursuant to Rule 404(a) at trial. Such evidence is only relevant under 404(a) to support a self-defense claim, and yet Rudy Sablan has failed to articulate his basis for asserting this defense. In order to rely on Rule 404(a), the evidence must establish that Rudy Sablan acted in some way to defend either himself or another. To the contrary, the consistent position of the defense has been that Rudy Sablan did nothing while William Sablan committed the murder and the mutilation. A. The Proffered Incidents The defendant lists four incidents involving Joey Estrella which he seeks to admit at trial as evidence of Mr. Estrella's character for violence pursuant to F.R.E. 404(b), one from 1994, two from 1997, and one from 1998. The purpose for which each is offered is not stated. Only the 1994 incident occurred at the Federal Correctional Complex in Florence, Colorado, and there is no assertion in the proffer that Rudy Sablan had any knowledge of these incidents at the time Estrella was killed. The government is particularly concerned about the description of the 1994 incident in Defendant's Proffer. It includes conclusory comments which are not factually supported by the BOP document attached to the pleading. The focus is not on the facts and how they are relevant to any issue in the trial of Rudy Sablan, but rather on simply

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attacking Joey Estrella. The Defendant states "Mr. Estrella was convicted of assaulting another inmate, bragging that he was a member of the Mexican Mafia. There was no reason for the assault other than Mr. Estrella attempting to establish his reputation as a `tough' inmate." Proffer at 1. First of all, as a point of clarification, Estrella was not prosecuted as a criminal matter. The incident was handled as a disciplinary matter within the BOP. Second, the source for the conclusions in the description is apparently the following excerpt from the BOP SIS report discussing Estrella's background which is attached to the Proffer: "In 1985 Estrella assaulted an inmate in a jail and possessed a weapon in jail. Information has been received which indicates that Estrella likes to brag to other inmates that he is a member of the `Mexican Mafia' in order to attempt to gain their respect and friendship." Proffer Attachment­June 30, 1994 Incident (emphasis added). There is no disclosed source of this "information" and nothing connects this commentary to the incident at hand. Further, there were no findings by the Disciplinary Hearing Officer in this regard. In any event, these incidents are remote in time from the case at hand, and the probative value of each, whatever it may be, is substantially outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury. Therefore, the evidence must be excluded under F.R.E. 403. CONCLUSION The government respectfully requests that the Court find Defendant's Proffer 5

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insufficient to justify admitting specific acts pursuant to F.R.E. 404(b) and that, if they were relevant, F.R.E. 403 would preclude their admission. The government further requests that the Court deny the introduction of reputation or opinion evidence regarding Mr. Estrella's character for "aggressive, assaultive behavior, particularly when intoxicated" (Document #2632 at 3) pursuant to 404(a). This evidence would only be relevant to the issue of self-defense, and it is not at all clear that it applies to Rudy Sablan. In any event, this evidence as well should be excluded under F.R.E. 403, particularly since it is not contested that Mr. Estrella was the initial aggressor in the confrontation with William Sablan. WHEREFORE, Defendant's Motion in Limine Regarding Character and Habit of Mr. Estrella and the Supplement to Pending Motions regarding Docket #254 should be denied. Respectfully submitted this 30 th day of November, 2007, 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 6 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 30 th day of November, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S PROFFER ON ESTRELLA 404(b) EVIDENCE 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/ Veronica Ortiz VERONICA ORTIZ Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0335 Fax: (303) 454-0406 E-mail address: [email protected]

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