Free Motion to Strike - 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 UNITED STATES OF AMERICA, Plaintiff, v. RUDY CABRERA SABLAN, et al. Defendant. ______________________________________________________________________________ MOTION TO STRIKE NOTICE OF INTENT TO SEEK THE DEATH PENALTY ______________________________________________________________________________ Rudy Sablan, by and through counsel, requests an order striking the government's Notice of Intent ("NOI") to Seek the Death Penalty, and submits the following memorandum in support thereof: PROCEDURAL HISTORY William Sablan and Rudy Sablan were charged with murder in the first degree in the death of their cellmate Joey Estrella on October 9, 1999. A Notice of Intent to Seek the Death Penalty was filed as to both defendants although it was clear from the government's evidence that Mr. Estrella was killed by William Sablan; not Rudy. After lengthy hearings on pretrial motions, and a delay occasioned by William Sablan's mental incompetency, the Court granted motions to sever which had been filed by both defendants. In the severance order (Docket #1852), the Court noted "the heightened reliability required in capital cases and the fact that the potential prejudice to defendants from a joint trial may well be far greater than in a typical criminal trial." (Pp. 4-5.) The Court also noted,

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significantly, the requirement of "the strict protection of a defendant's constitutional right to an individualized sentencing decision." Citing United States v. Rivera, 363 F.Supp.2d 814, 820 (E.D. Va. 2005). One of the reasons for severance was "the prejudice that could result to defendants from a joint penalty phase." (Docket #1852, p. 17.) William Sablan's trial began in January 2007. He was convicted of murder in the first degree but spared the death penalty when the jury could not reach a unanimous penalty verdict. The fact that William Sablan received a life sentence is a statutory mitigating factor in Rudy Sablan's case. 18 U.S.C. § 3592(a)(4) provides that the jury shall consider the fact that "another defendant . . . equally culpable in the crime will not be punished by death." The government's evidence and theory of the case in William Sablan's trial was that William killed Mr. Estrella by cutting his throat with a razor. William, the government argued, then cut open Mr. Estrella's body, removing internal organs in a heinous and depraved manner. By its verdicts and special findings, the jury agreed with the government's theory beyond a reasonable doubt. After the verdicts in William Sablan's case, the United States Attorney recommended and requested withdrawal of the authorization to seek the death penalty as to Rudy Sablan. Inexplicably, illogically, unbelievably, the Department of Justice refused to withdraw the capital authorization as to Rudy Sablan. Written submissions from both the U.S. Attorney for the District of Colorado and the defense team were sent to the Department of Justice requesting withdrawal of the death penalty authorization. We cannot speak for the U.S. Attorney, but the defense team received no response of any kind to our request. We asked for a meeting; our request was ignored. (A copy of the

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defense team letter is attached.) The government did not respond to the local U.S. Attorney's Office until the afternoon of the court hearing on September 12th. The government has proffered no reason or justification for its decision to ignore the judgment of the local prosecutors and trial judge most familiar with this case. The Court set a two-month trial to commence on March 17, 2008. Numerous, lengthy hearings on motions will be required on penalty issues, as well as a lengthy death-qualification voir dire. The Court granted Rudy Sablan's request for an early hearing on the viability of the sole remaining statutory aggravating factor in the NOI since the case cannot proceed as a capital case without evidence from which a jury could find at least one statutory aggravating factor beyond a reasonable doubt. Factors in this determination include (a) the evidence and argument from William's trial which provides a comprehensive evidentiary proffer, and (b) the Court's "gatekeeping" role under 18 U.S.C. § 3593(c) (evidence may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues or misleading the jury). THRESHOLD REQUIREMENTS FOR IMPOSITION OF THE DEATH PENALTY As the Court found in its rulings on the admissibility of prior convictions and incidents proffered as aggravating factors in William Sablan's case: Under the Federal Death Penalty Act ["FDPA"], if the attorney for the government has filed a notice of intent to seek the death penalty and if the defendant is found guilty of or pleads guilty to a federal offense that carries the potential of a death sentence, the defendant is entitled to "a separate sentencing hearing to determine the punishment to be imposed." 18 U.S.C. § 3593(b). During this separate hearing, referred to as the sentencing or penalty phase, the same jury that determined the defendant's guilt considers whether the government has sustained its burden of proving the existence of one or more statutorily defined aggravating factors beyond a reasonable doubt. Id., § 3593(c), (d). A finding that an aggravating factor exists must be unanimous. Id., § 3593(d). If the 3

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jury finds that the government has not sustained its burden of demonstrating the existence of at least one statutory aggravating factor, the death penalty may not be imposed. Id. (Docket #2301, p. 5.) STATUTORY AGGRAVATING FACTORS ALLEGED AS TO RUDY SABLAN The government listed two statutory aggravating factors in its NOI regarding Rudy Sablan: (1) previous conviction of two or more serious offenses (§3592[c][4]), and (2) heinous or depraved manner of committing the offense. (§3592[c][6]) The Court previously granted Rudy Sablan's motion to strike the 3592(c)(4) statutory aggravator, leaving only the "heinous or depraved" aggravator to make this case death penalty eligible. CONSTITUTIONAL REQUIREMENTS REGARDING THE "HEINOUS OR DEPRAVED" FACTOR The government alleges in the NOI (third amended NOI) that "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). Evidentiary issues regarding this aggravator under the facts of this case are many and complex. It is clear, however, that the applicability of the aggravator must stand on the actions of Rudy Sablan, not William. This cannot be an issue of complicity, apparent approval of what William did, or anything else. The focus for sentencing must be on the specific culpability of each defendant because of the "individualized consideration as a constitutional requirement in imposing the death sentence." Edmund v. Florida, 458 U.S. 782, 798 (1982). In United States v. McVeigh, 944 F.Supp. 1478, 1487-88 (D.Colo. 1996), Judge Matsch discussed the requirement of individualized sentencing accountability:

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To be valid, the procedure must protect against a decision motivated by passion and prejudice. It must guide the jurors to individualized consideration of each defendant. **** In effect, a sentence of death may not be imposed for anything other than an intentional killing . . . and then only after careful consideration of aggravating and mitigating factors particularized as to each defendant. **** The aggravating factors function is to focus the jury's attention on the particular facts and circumstances pertinent to each defendant. (Emphasis added.) In a dissent to the denial of a petition for certiorari in White v. Dugger, 483 U.S. 1045, 108 S.Ct. 20 (1987), Justice Brennan wrote: In Tison we left open the issue whether a court may constitutionally attribute to a defendant as an aggravating factor the manner in which other individuals carried out the killings . . . such vicarious attribution would seem to violate the core Eighth Amendment requirement that capital punishment be based upon an individualized consideration of the defendant's culpability. Id., at 1049 (emphasis added). In Richmond v. Lewis, 506 U.S. 40, 113 S.Ct. 528 (1992), the court reversed a death sentence, finding the cruel and heinous aggravating factor to be constitutionally inapplicable. The petitioner and co-defendant killed a person and then one of them drove a car over the body twice. There was a fact question as to who was driving the car when it was used to mutilate the body. This was a major dispute and conflict in the evidence. The trial/sentencing judge based the death sentence, in part, on the "cruel and heinous" aggravator but "did not explicitly find that petitioner was the driver." Id., at 44. Even the State conceded that application of this aggravating factor, whether or not it was unconstitutionally 5

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vague at the time, would require proof that the petitioner was the driver: ". . . respondents do not argue that, on the facts of this case, the Eighth Amendment would preclude the application of the [cruel and heinous] factor to petitioner if he did not intentionally drive the car over Crummett." Id., at 51 (emphasis added). EVIDENCE CONSTITUTIONALLY REQUIRED FOR THE HEINOUS OR DEPRAVED AGGRAVATOR In United States v. Charthadara, 230 F.3d 1237, 1261 (10th Cir. 2000), the jury instruction upheld by the court very carefully pointed out that "the United States must prove that defendant's actions involved . . . serious physical abuse. . . ." In the NOI, the government avoided the issue of who cut open Mr. Estrella's abdomen, simply saying "his abdomen was cut open and internal organs removed and displayed." (NOI (2), p. 4.) The only acts the NOI alleges against Rudy Sablan are "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 . . . ." Id. The government cannot rely on evidence of "enjoyment of the killing" as an evidentiary basis for this aggravator. The defendant must, by the terms of the statute have caused serious physical abuse of the victim. In United States v. Jones, 132 F.3d 232, 250 (5th Cir. 1998), cited by the government in support of this aggravator, the instruction that was upheld stated: "Depraved" means that the defendant relished the killing or showed indifference to the suffering of the victim as evidenced by torture or serious physical abuse of the victim. Id., (emphasis added) In another instruction, the court made clear the defendant must have committed the serious physical abuse and that the defendant must have specifically intended the abuse apart from the 6

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killing. Celebratory shouts and other actions after the serious physical abuse are insufficient evidence to support this aggravator. The serious physical abuse is cutting open Mr. Estrella's abdomen after he was dead. The government also cites United States v. Hall, 152 F.3d 381, 414 (5th Cir. 1998), in support of this aggravator. There the court made it clear that "the wording of the aggravating factor itself focuses upon the actions of Hall; it provides that the jury must conclude that the defendant committed the offense in an especially heinous, cruel or depraved manner." (Emphasis in original.) The Fifth Circuit held unequivocally that the jury was required to focus on Hall's actions and that he must have specifically intended the serious physical abuse apart from the killing. As noted above, the applicable (third amended) NOI alleges, for the sole statutory aggravating factor that "the defendant committed the offense in an especially heinous or depraved manner in that it involved serious physical abuse to the victim." This Court previously found that 18 U.S.C. § 3592(c)(6) is constitutional, as modified in the NOI (deleting the words "cruel" and "torture") solely because of the requirement that the "commission of the murder in an especially heinous or depraved manner involve serious physical abuse." United States v. Sablan, 2006 WL 1028780 (D.Colo. 2006) at 26. The Court also noted that the defendant "must have specifically intended the abuse apart from the killing." Id. The government's suggestion that certain evidence constitutes "relishing the crime" and can therefore constitute depraved conduct is outside the confines of the statute and cannot, standing alone, constitutionally support this statutory aggravator. By the clear terms of the

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statute the defendant must have inflicted serious physical abuse to the victim separate and apart from the killing. In William Sablan's trial, the government's position, based on conclusive evidence, was that, after Mr. Estrella was dead, William "cuts open the abdomen so he can start ripping out the organs and doing other things." (Transcript, p. 5155.) In the penalty phase of William's trial, the government referred to William's letter to his mother, a few days after the killing, in which he said he "decided to open cut him. I took out everything. Like killing a pig," and a later letter to his uncle in which he said, "I decided to take everything out . . . then I hung them on the line and called the guards for human donors." The government said, not surprisingly, "this is heinous and depraved." (Transcript, pp. 6289-6290.) It is clear that the "serious physical abuse" was at the hands of William Sablan; not Rudy. The government cannot change its evidence and argument that William killed Mr. Estrella and "gutted him like a pig." Smith v. Grouse, 205 f.3d 1045 (8th Cir. 2000) ("use of inherently factually contradictory theories violates the principles of due process"). The government cannot suggest now, in Rudy's trial, that he cut open Mr. Estrella's body, thereby committing the serious physical abuse necessary for this statutory aggravator. The discovery and the evidence presented in William Sablan's trial establishes that he was interviewed shortly after he and Rudy Sablan were removed from the cell by FBI Special Agent Veltman. He was advised of his rights and agreed to speak to Special Agent Veltman and a USP investigator. He told them he was in the SHU cell for approximately four days. He said he was sleeping when Joey Estrella attacked him. He pushed Estrella away, but Estrella continued to attack him. William said he pushed Estrella down on the floor near the bathroom.

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Estrella kicked Sablan in the head. William said he called for Rudy to help, but Rudy was wearing headphones and did not hear him. William then forced Estrella to the floor and choked him until he was still. William told the agent he was concerned about Estrella's affiliation with a Mexican gang in the prison. He felt that if he did not kill Estrella he would be killed by Estrella or his organization. William told the officers he used a razor to cut Estrella's throat. He stated that he then "went crazy and gutted him like a pig to make sure he was dead." He said he removed Estrella's insides "to be completely sure he was dead." He stated he was sorry for what he did but he would rather die by injection than be killed by an inmate in prison. He told the officers that Rudy Sablan did not participate in the killing of Estrella. On October 20, 1999, William Sablan wrote his mother a letter describing the events of October 10, 1999. This letter was copied by BOP officers on October 21, 1999. It was introduced in William Sablan's trial as Exhibit 122. In the letter, William Sablan admits killing Joey Estrella. He talks about his mental and emotional state and some of his past problems. The statements in the letter are consistent with his October 10, 1999 statements to the government agents who discovered and investigated the death of Mr. Estrella. The October 20, 1999 letter also shows that William was solely responsible for the killing of Joey Estrella, the opening of his abdomen and the removal of body parts. Under the circumstances of this case, the Court's evidentiary gatekeeping role under § 3593(c) is extremely important. As a matter of law, evidence such as celebratory shouts and displaying body parts after they were removed are not relevant to the serious physical abuse predicate for this aggravator. Since the government cannot show, beyond a reasonable doubt, that Rudy Sablan intentionally committed serious physical abuse, i.e., that he cut open Mr.

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Estrella's body cavity, the evidence of his actions in the aftermath are insufficiently relevant and reliable. This evidence is likely to mislead the jury and cause unfair prejudice to Rudy Sablan. The Court must exclude this evidence. Similarly, evidence of William Sablan's actions in cutting open Mr. Estrella's body cavity is not relevant to the issue of whether Rudy intentionally committed serious physical abuse to Mr. Estrella. Evidence of William's actions would only arouse passion and prejudice in the minds of the jurors, confuse the issues and unfairly distract them from the individualized consideration of Rudy's actions and culpability required by the Eighth Amendment. The evidence and argument in William's trial is a detailed proffer on this issue. The Court should exclude evidence that Mr. Estrella's abdomen was cut open and organs removed by Rudy Sablan's co-defendant under § 3593(c) and Eighth Amendment jurisprudence. The Court should exclude the "enjoyment of the killing" evidence for the reasons stated herein. Accordingly, the § 3593(c) statutory aggravator should be stricken and this case should proceed to trial as a non-death penalty case. THE GOVERNMENT'S ARBITRARY AND CAPRICIOUS DECISION TO CONTINUE TO SEEK DEATH FOR RUDY SABLAN VIOLATES THE FIFTH AND EIGHTH AMENDMENTS

Gary Littrell is one of 40 defendants charged in the Aryan Brotherhood capital murder cases. The two highest defendants in the indictment, Mr. Mills and Mr. Bingham, were the subjects of a four-month trial in which they were both found guilty of first-degree murder. In the penalty phase, the jury was unable to reach unanimous verdicts and Messrs. Mills and Bingham were sentenced to life imprisonment. The government then withdrew death penalty NOI's for other defendants but maintained its decision to seek the death penalty against Littrell, even in the 10

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face of life sentence for the leaders, Mills and Bingham. As in this case, the Department of Justice claimed to "reconsider" its decision, but maintained the original death penalty authorization. Judge Carney of the United States District Court for the Central District of California, on March 22, 2007, struck the government's NOI as to Mr. Littrell finding it to be "arbitrary and capricious." The court concluded: "In this case, when all relevant facts and circumstances are considered, it is clear that no rational decision maker would continue to seek to execute Gary Joe Littrell." United States v. Littrell, 478 F.Supp.2d 1179, 1192 (C.D. Cal. 2007). The circumstances of the Littrell case are strikingly similar to the situation this Court faces in Sablan. Some of the Court's findings and conclusions in Littrell seem particularly applicable in this case: The Fifth Amendment requires that every aspect of the process by which the Government seeks to put a defendant to death is consistent with due process of law. At a bare minimum, the protections of the Fifth Amendment must guarantee that the Government's decision to seek the death penalty is rational. When the Government's decision to seek death is wholly divorced from reason and arbitrarily disregards the totality of the relevant evidence, a capital prosecution based on that decision would be repugnant to the Constitution. To guarantee that the prosecution of Mr. Littrell is consistent with the due process protections provided by the Fifth Amendment, the court must insure that the decision to continue to seek his execution is not arbitrary and capricious. **** The jury found Mr. Bingham and Mr. Mills responsible for the vast majority of the violent acts perpetrated by the gang. It heard extensive evidence regarding the graphic details of the crimes committed by these men and by their subordinates on their behalf. The inability of the jury to conclude that the most culpable men in the organization were not worthy of the death penalty must be considered by the Government before it seeks to execute lower-level members of the same organization charged in the same indictment.

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**** It is vital to the constitutional protections of due process and to the moral authority of the Government to end the life of one of its citizens that the decision to seek death is neither arbitrary and capricious nor wholly divorced from reason. (Id., at 1186, 1190, 1192.) CONCLUSION Rudy Sablan requests an order under 18 U.S.C. § 3593(c) excluding evidence of "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 organs . . ." and, precluding evidence that Mr. Estrella's body cavity was opened and organs were removed by William Sablan. Since there is no admissible evidence to support this statutory aggravator, it must be stricken and this matter should proceed as a non-capital case. The NOI must also be stricken because the government's decision to continue to seek death under the current, specific circumstances in this case is arbitrary and capricious in violation of constitutional requirements in capital cases.
Respectfully submitted, s/ Forrest W. Lewis 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] Donald R. Knight KNIGHT & MOSES, LLC 7852 S. Elati Street, Suite 201 Littleton, Colorado 80120 Telephone: (303) 797-1645 Facsimile: (303) 798-3872 E-mail: [email protected] Attorneys for Defendant Rudy Sablan

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CERTIFICATE OF SERVICE I hereby certify that the foregoing MOTION TO STRIKE NOTICE OF INTENT TO SEEK THE DEATH PENALTY was electronically filed with the Clerk of the Court using the CM/ECF system on this 24th day of September, 2007, which will send notification of such filing to the to the following e-mail addresses: Brenda Taylor [email protected] Philip Brimmer [email protected]

s/Polly Ashley

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