Free Response to Motion - District Court of Colorado - Colorado

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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 SUPPLEMENT TO PENDING MOTIONS

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 as follows to Defendant's Supplement to Pending Motions. I. DOCKET #256­MOTION IN LIMINE REGARDING STATEMENTS OF WILLIAM SABLAN There are no remaining issues regarding the admissibility in the trial of Rudy Sablan of the in-cell statements of William Sablan on the videotape. Defendant continues to urge the admissibility of the statement made by William Sablan to FBI Special Agent George Veltman on October 10, 1999. William Sablan Trial Exhibit 107, attached. In his supplement, he seeks to admit this particular FBI interview, and only this one, under F.R.E. 803(2) (excited utterance), 803(3) (statement of then

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existing mental, emotional, or physical condition), 804(b)(3) (statement against interest), 807 (residual hearsay exception), and as res gestae. In his original motion, the defendant relied only upon evidentiary rules 804(b)(3) and 807. He also argued at that time that the statements made during the interview were admissible under the "right of a defendant to present evidence of an `alternate suspect.'" Docket #256 at 6. Citing no authority, the defendant offers as a new theory of admissibility in his Supplement to Pending Motions that the use of this statement at the trial of William Sablan precludes the government from opposing its admission as hearsay in the separate trial of Rudy Sablan. To the contrary, if relevant, statements made by William Sablan, as a party opponent, were admissible at his trial against him under F.R.E. 801(d)(2) as nonhearsay without regard to whether they were completely true, partially true, or totally false. Indeed, they need not even be incriminatory. Since the creation of the Federal Rules of Evidence, admissions have been classified, not as exceptions to the hearsay rule, but rather as not hearsay at all. As such, unlike the exceptions to the hearsay rule cited by the defendant, their admissibility need not satisfy the traditional requirements of circumstantial guarantees of trustworthiness. See Graham, Handbook of Federal Evidence §801.15 (6 th Ed. 2006). This will be a new and separate trial, just as requested by the Defendant. The Court must evaluate the admissibility of any hearsay offered by the defense based on the rules of evidence. As explained below, none of the statements made during the October 10, 1999

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interview are admissible as an excited utterance, a statement of then existing mental, emotional, or physical condition, or as a statement against interest under the analysis below. The "alternative suspect" and residual hearsay theories of admissibility are likewise unpersuasive. A. Interviews of William Sablan by the FBI William Sablan was interviewed on three separate occasions by FBI agents, the first time several hours after the killing, the second time on May 18, 2000, and the third time on May 25, 2000, all while he was in custody for the homicide. There are inconsistencies among the statements, within the statements, and between the statements and other evidence. In the October 10, 1999 interview by George Veltman and BOP SIA Ed Felz, which took place after William Sablan had already been videotaped repeatedly making admissions of guilt, he said the following things: that Estrella had kicked William Sablan in the head; that William Sablan had choked Estrella on the floor until he was still; and that William Sablan does not drink and wasn't drinking that night. All of these statements are contradicted either by the physical evidence or by William Sablan himself in later interviews. There was no physical evidence or contemporaneous complaint that William Sablan was kicked in the head, and there was no evidence on Estrella's body that he was choked by hand. In fact, the physical evidence is consistent with the testimony of Arthur

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Peck that Estrella was strangled with headphone cords. As for William Sablan's claim that he does not drink and wasn't drinking that night, the position of William Sablan's defense has always been that not only had he been drinking, but that he was too intoxicated to intend or premeditate the killing of Joey Estrella. Further, it was clear from information about his prior offenses that William Sablan had a history of drinking alcohol. Finally, in his interview of May 25, 2000, he changed his story and told the FBI agent that he had been drinking on the night of the killing. The October 10, 1999 interview began with a request by William Sablan that Rudy Sablan be present during questioning. With regard to Rudy Sablan's role in the killing, William Sablan said that he asked Rudy Sablan to help him during the fight but "Rudy was wearing headphones and did not hear him," and that "Rudy Sablan did not participate in the killing of Estrella." These statements are also contradicted by the testimony of Arthur Peck that he saw Rudy Sablan viciously choking Estrella with headphone cords. Finally, in his May 18, 1999 interview, William Sablan changed his story again, saying that he did not kill Estrella, that someone else did it, and Rudy Sablan had set him up. B. Legal Analysis 1. Excited utterance Rule (803 (2)) To be admissible under the "excited utterance" exception, a statement must be "related to a startling event" and be "made while under the stress of excitement caused by the event." See Fed.R.Evid. 803(2). "The rationale for this exception is that excited utterances are likely to be truthful, because the

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stress from the event caused a spontaneous statement that was not the product of reflection and deliberation." United States v. Marrowbone, 211 F.3d 452, 454 (8 th Cir. 2000); Mitchell v. Watkins, ____ F.3d _____, 2007 WL 3194104 at *5 (10 th Cir. Oct. 25, 2007). Put another way, "the stress of nervous excitement or physical shock `stills the reflective faculties,' thus removing an impediment to truthfulness." Reed v. Thalacker, 198 F.3d 1058, 1061 (8 th Cir. 1999). The theory is that conscious fabrication is less likely in this situation. See Paxton v. Ward, 199 F.3d 1197, 1209 (10 th Cir. 1999); see also United States v. Ledford, 443 F.3d 702 (10 th Cir. 2005). The factors to be considered are: 1) the lapse of time between the startling event and the statement; 2) whether the statement was made in response to an inquiry; 3) the age of the declarant; 4) the characteristics of the event; 5) the physical and mental condition of the declarant; and 6) the subject matter of the statement. Thalacker, 198 F.3d at 1061. When the circumstances suggest a motive to fabricate, courts have held that the exception does not apply. See Marrowbone, 211 F.3d at 455. Under the circumstances here, just such a motive was inherently present. Neither in his original motion nor in his Supplement to Pending Motions does the defendant offer any facts to support his conclusion that the "excited utterance" exception applies to this statement. If we consider what was said during the interview and the apparent purpose of some of the statements, it is clear these were not spontaneous statements of a person experiencing stress from a "startling" event. They were, rather, what "excited utterances" are not---deliberate and

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motivated by the desire to put forth an explanation, to not be held accountable. This is not the type of situation in which there can be confidence in the trustworthiness of the statements, and they should not be admitted on behalf of Defendant Rudy Sablan as excited utterances. 2. Then existing mental, emotional, or physical condition Rule (803(3)) This rule allows admission into evidence of "[a] statement expressing the declarant's then existing state of mind, emotion, sensation, or physical condition such as intent, plan, motive, design, mental feeling, pain and bodily health... ." Where the then existing state of mind, emotion, sensation, or physical condition of the declarant is relevant, admissibility of statements of the declarant expressing such a fact of consequence to the litigation rests upon grounds of trustworthiness and necessity. See Graham, Handbook of Federal Evidence §803.3 at 279 (5 th Ed. 2001) (emphasis added). Similarly to the excited utterance exception, the rationale for this exception rests upon the assumption that the declarant has had no chance to reflect upon or misrepresent his thought. That is not the case here. 3. Statement against interest Rule (804(b)(3)) In order to justify the admission

of hearsay evidence under this exception, a defendant must show "(1) an unavailable declarant; (2) a statement against penal interest; and (3) sufficient corroboration to indicate the trustworthiness of the statement." United States v. Spring, 80 F.3d 1450, 1461 (10 th Cir.), cert. denied, 519 U.S. 963 (1996) (quoting United States v. Porter, 881

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F.2d 878, 882 (10 th Cir.), cert. denied, 493 U.S. 944 (1989). The rule itself requires that "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement." Fed.R.Evid. R.804(b)(3) (emphasis added). This language in the rule requires that greater caution should be taken in admitting such statements. See United States v. Salvador, 820 F.2d 558, 561 (2d Cir. 1987), cert. denied, 484 U.S. 966 (1987). It is a rule of exclusion, not inclusion, and the burden is on the party offering the evidence to demonstrate that the statements were clearly trustworthy. The defendant cannot meet even the first requirement under this rule ­ that the declarant be unavailable. William Sablan's trial is over, he's been sentenced, and no appeal of the jury's verdict was taken. Therefore, he may be subpoenaed, brought in to testify and be subject to cross-examination. Even if William Sablan were legally "unavailable," the statements he made to SA Veltman on October 10, 1999, which focused on his claim of self-defense, were not purely "against penal interest." See Turpin v. Kassulke, 26 F.3d 1392, 1397-98 (6 th Cir. 1994), cert. denied, 513 U.S. 1118 (1995). The defense argued in its original motion that William Sablan's self defense claims have "independent indicia of reliability" because of the visible injuries to his face. The injuries existed; the truthfulness of their characterization as resulting from self-defense is another matter. There are no

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corroborating circumstances surrounding the statements made during the interview to make them trustworthy. Further, as discussed above, the trustworthiness of the statements made on October 10, 1999, is suspect because William Sablan made subsequent statements in which he implicated Defendant Rudy Sablan and exculpated himself and other statements implicating both himself and Rudy Sablan. See United States v. Groce, 999 F.2d 1189 (7 th Cir. 1993). Defendant Rudy Sablan apparently doesn't find those statements particularly trustworthy and doesn't seek their admission. 4. Res Gestae The defendant also contends in his Supplement to Pending Motions that the statements made by William Sablan to the FBI on October 10, 1999, are admissible as res gestae. He cites no authority for this position. The use of the doctrine of res gestae as a method of admitting otherwise inadmissible hearsay has been inappropriate since the advent of the Federal Rules of Evidence, because the rules were created to address all of the situations in which the doctrine had been applied at common law. "Under the Federal Rules of Evidence, reference to the common law concept of res gestae is improper and should be avoided." See Graham, Federal Handbook of Federal Evidence § 803.2 at 277 (5 th Ed. 2001). In fact, the concept of res gestae has been subsumed by F.R.E. 803 (2), the excited utterance hearsay exception. See United States v. Ledford, 443 F.3d at 711712.

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The reliance of Defendant Rudy Sablan on the doctrine of res gestae is misplaced and should not be used in this case as a vehicle to admit otherwise inadmissible hearsay. 5. Residual Hearsay­Rule 807 To be admissible pursuant to Rule 807, the residual hearsay exception, a hearsay statement must meet five requirements: a) circumstantial guarantees of trustworthiness; b) materiality; c) probative value; d) the interests of justice; and e) notice. United States v. Hall, 165 F. 3d 1095, 1110 (7 th Cir.), cert. denied, 527 U.S. 1029 (1999). The rationale behind the residual hearsay rule is that the evidence have "equivalent substantial guarantees of trustworthiness" to those found in the "firmly-rooted" and accepted exceptions to the hearsay rule. As discussed above, the guarantees of trustworthiness of the October 10, 1999 interview statements by William Sablan are simply insufficient, given their content, to allow their admission as an exception to the hearsay rule. The residual exception is to be used " only rarely, in truly exceptional cases." United States v. Thevis, 665 F.2d 616, 629 (5 th Cir.), cert. denied, 459 U.S. 825 (1982). This is not one of those cases. And the admission of the statements in the separate trial of William Sablan does nothing to change that fact.

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6. Alternative Suspect Argument Defendant's contention that he should be allowed to submit hearsay evidence to support his theory of "alternative suspect" is unpersuasive. Whatever the theory of defense, hearsay is only admissible if it comes within an exception to the hearsay rule. C. Conclusion For all of the reasons stated above, the Court should deny the Defendant's motion to admit the hearsay statements made by William Sablan in his October 10, 1999 interview. II. DOCKET # 259­NOTICE & MOTION TO ADMIT EVIDENCE UNDER F.R.E. 807 (10/20/99 LETTER) Defendant supplements this motion by asking the Court to find that the letter written by William Sablan on April 7, 2000 to his "Uncle Jack" is admissible as well as the letter of October 20, 1999 from William Sablan to his mother. William Sablan Trial Exhibits 122 and 123, attached. His original motion moved admission pursuant to the residual hearsay exception, F.R.E. 807, as well as F.R.E.803(3) (then existing mental, emotional condition) and 804(b)(3) (statement against interest). The requirements for admissibility under these rules are set out above. To be admissible under the residual hearsay exception, the statements must have substantial guarantees of trustworthiness equivalent to those required under the recognized, specific exceptions to the hearsay rule. Defendant Rudy Sablan has also again advanced a new theory of admissibility that both letters were admitted exhibits in the trial of William Sablan and that the government, 10

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having "vouched" for their reliability in that trial "cannot now claim that they are unreliable and inadmissible" in his trial. The government opposes this motion for the same reasons set out above with regard to the October 10, 1999 interview statements and incorporates those arguments herein. There are no circumstantial guarantees of trustworthiness for either one of these letters. At William Sablan's trial, they were admissible as non-hearsay. In the trial of Rudy Sablan, they are simply hearsay. The letters the defendant seeks to admit were written by William Sablan ten days and six months after the murder. They both incorporate admissions and self-serving excuses. These statements are too remote in time from the events to be at all trustworthy or reliable. In this instance, Defendant William Sablan sent the letters from prison; he would have been well aware that prison officials would review the letters and likely retain copies. He knew that his audience was not only his mother and uncle, to whom he was making excuses for his situation, but those who were investigating the homicide as well. Furthermore, the statements in the letters are really statements of memory or belief, which are specifically excluded from Rule 803(3) coverage. United States v. Cardascia, 951 F.2d 474, 487 (2d Cir. 1991). Defendant William Sablan's state of mind at the time he wrote the letters is entirely irrelevant to any issues in this case. Nor should the statement against interest exception apply to the letters, because William Sablan is not

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unavailable as a witness, and, if anything, his time for reflection and misrepresentation was even greater in these instances. The allegation that the government has "vouched" for the statements in these letters and that such "vouching" somehow makes hearsay admissible is without merit, as discussed above. For all of these reasons, the Court must deny the motion to admit the letters as evidence in the separate trial of Rudy Sablan. III. DOCKET # 1914­GOVERNMENT'S AMENDED PROFFER OF PENALTY PHASE EVIDENCE Defendant requests in his supplement that the government provide notice, prior to the December hearings, of any additional evidence the government may seek to present in support of the aggravating factors, statutory and non-statutory. The government has no objection to this request. At this point, the government can advise the Court and counsel that it will no longer rely upon the FCI-Englewood incident of February 9, 2001 which is alleged in support of the future danger non-statutory aggravator at paragraph C1(h) of the Third Amended NOI. The government does reserve the right to seek to further supplement its NOI and proffer prior to trial if there is good cause to do so. IV. DOCKET #250­MOTION IN LIMINE TO PRECLUDE EVIDENCE OF CHARACTER AND EXTRINSIC ACTS Defendant's supplement to this motion requests that witnesses not refer to Rudy Sablan as "dangerous" or "violent." The Court has already ruled on this motion and has excluded evidence proffered under Rule 404(b) by the government. The government

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understands the Court's ruling. It also understands its obligation not to interject comments about a defendant's character unless and until such evidence becomes relevant and admissible. Respectfully submitted this 13th 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 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 13th day of November, 2007, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT'S SUPPLEMENT TO PENDING MOTIONS 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/ Janet D. Zinser JANET D. ZINSER Supervisory Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0327 Fax: (303) 454-0403 E-mail address: [email protected]

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