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 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, 2. RUDY CABRERA SABLAN, Defendants.

GOVERNMENT'S RESPONSE TO DEFENDANT RUDY SABLAN'S MOTION IN LIMINE REGARDING THE "HEINOUS OR DEPRAVED" STATUTORY AGGRAVATING FACTOR [R-52]

The United States of America, by William J. Leone, 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 the above-referenced motion filed by defendant Rudy Sablan. I. INTRODUCTION Defendant Rudy Sablan requests that the government be restricted from introducing evidence in support of the "heinous or depraved" statutory aggravating factor set forth in its Amended Notice of Intent to Seek the Death Penalty ("NOI"). As grounds for this

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motion, the defendant argues that the government must show that he actually cut open Mr. Estrella's body for the "heinous or depraved" aggravating factor to apply. He maintains that without such evidence, the acts alleged in the NOI to support the aggravating factor are simply not relevant to the serious physical abuse predicate. The government disagrees. II. FACTUAL BACKGROUND a. Statements of Inmate Witnesses 1. Statement of Inmate Mark Farmer In the early morning hours of October 10, 1999, according to testimony of inmate Mark Farmer, victim Joey Estrella and defendant William Sablan became involved in an argument. Farmer explained that for a number of months prior to October 10, 1999, he had been housed next to Rudy Sablan and Joey Estrella. During that period of time he would occasionally hear sounds of what he believed was drinking going on in the cell by both Estrella and Rudy Sablan. He further explained that when Joey Estrella would drink he would get loud and be verbally disrespectful to others. On one occasion approximately one month prior to October 10, 1999, Farmer heard Estrella "being real loud and yelling to another guy, another Mexican on the tier." At this point an inmate nicknamed "Chuco" (Richard Santiago), known to be a leader of the Mexican Mafia at the U.S. Penitentiary in Florence, yelled at Estrella to "Lay down and go to sleep, you're making our people look bad." Estrella responded by yelling "Fuck you" and continued to be verbally

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"disrespectful" toward Santiago. On the following morning while in the recreation area, Farmer overheard Santiago and Rudy Sablan talking about Estrella being "out of line." Santiago told Rudy Sablan that if something happened to Estrella, Rudy Sablan would not have to worry about retaliation from the Mexicans. On the night of October 9, 1999, and in the early morning hours of October 10, 1999, Farmer was housed in cell 123 next to William Sablan, Rudy Sablan and Joey Estrella. He heard what he believed to be sounds of drinking and laughing going on, but this eventually turned into an argument between William Sablan and Joey Estrella. Farmer heard William Sablan say "Quit disrespecting me, I don't disrespect you." Estrella responded by saying "Fuck you, you don't tell me how to speak." As the argument continued, Farmer heard Rudy Sablan egging it on for a while and then trying to get William Sablan and Estrella to stop arguing. The arguing died down for a period of time but began again with William Sablan and Joey Estrella exchanging words. William Sablan kept saying "Don't disrespect me, I don't disrespect you." At that point, Farmer heard the sound of something hitting the ground and then heard the sound of someone being choked. During this choking, Farmer heard Rudy Sablan say "That's enough, that's enough" and then heard another loud sound like something hitting the ground and then being dragged. Following these noises, Estrella was not heard again. However, for about 15 to 25 minutes William Sablan and Rudy Sablan spoke to each other in what Farmer described as "Guamanian." During this time,

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Farmer heard the sink water running and the toilet flushing in cell 124 for long periods of time. Following that, Farmer heard William Sablan and Rudy Sablan yelling as if they were celebrating, saying come and get the "liver, guts or cordzone" (phonetic), which Farmer believed to be the word for heart. 2. Statement of Inmate Anthony Wallace On the morning of the murder, another inmate, Anthony Wallace, was housed in cell 103 directly across from cell 124. Some time after midnight he heard banging noises and was able to see a small portion of the inside of cell 124. He saw William Sablan, whom he described as the "short Guamanian dude" wrestling and fighting with Estrella. He then heard William Sablan asking for help from Rudy Sablan saying "He's kicking my ass." He did not see what happened thereafter. However, he later heard Rudy Sablan screaming things like "You mother fuckers talk about having a heart, here's a real heart...we got heart, liver, we got it all." Wallace then looked out of his cell window and saw Rudy Sablan rubbing a red bloody object on the inside of the door window in cell 124. He also observed William Sablan holding up body parts in front of the cell window. 3. Statement of Inmate Arthur Peck Inmate Arthur Peck stated that on the morning of October 10, 1999, he was an orderly in the SHU responsible for cleaning duties. As such, he had access to the entire range (tier) on which cell 124 is located. He explained that a few weeks prior to October 10, 1999, he heard a conversation between "Chuco" (Richard Santiago) and Joey Estrella

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after Rudy Sablan and Joey Estrella had been drinking and Estrella had gotten loud and "disrespectful". Santiago warned Estrella about being disrespectful to which Estrella replied "Fuck you man...you don't run me." Peck explained that shortly before the murder of Joey Estrella "Chuco" (Santiago) was transferred out of the SHU. On the morning of October 10, 1999 Peck was in the laundry room when he heard noises coming from the range where cell 124 is located. Peck went down the range and looked into cell 124 briefly and saw William Sablan and Joey Estrella fighting. Rudy Sablan was standing up watching the fight. Sometime later Peck again walked down the range where cell 124 is located and looked briefly into the cell. At this time he observed Rudy Sablan choking Joey Estrella with what appeared to be a set of headphone cords. While choking Estrella, Rudy Sablan was saying "I told you to fucking stop it, I told you to fucking stop it." Peck explained that Rudy Sablan was standing over Estrella pulling the headphones sharply causing Estella's head to jerk back. Estrella was on his hands and knees and not resisting or fighting back. William Sablan was standing near Estrella and Rudy Sablan watching what was taking place. b. Statements of Correctional Officers 1. After arriving at the cell shortly after 3:00 a.m., Officer M. DeHerrera observed defendant Rudy Sablan holding one of the victim's organs in his right hand.

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2. Lt. T. Howard was the operations lieutenant on duty during the time of the discovery of Estrella's body. At the time he arrived at the cell, he looked in and saw that the victim's intestines and other body parts had been pulled from his abdomen. He observed Rudy Sablan holding some of the victim's intestines in front of the cell door window stating "do you want some of this? I can get the heart for you." 3. After arriving shortly after 3:00 a.m., Officer Thomas Martinez went to the door of cell 124 where he observed the victim Joey Estrella lying on the floor of the cell on his back with his "stomach cut open and his organs lying outside of his body." He further observed Rudy Sablan holding what appeared to be Estrella's internal organs yelling "He's not a bad ass now, is he?" Referring to the body parts, Rudy Sablan also stated "Do you want some of this?" Rudy Sablan then put one of the organs up to his mouth and appeared to take a bite out of it before spreading the blood from the organ on the window of the cell door. c. Video of Activity in the Cell 3:36 a.m. When the video begins, Rudy Sablan is standing near the cell window while William Sablan is seated on a stool with his back to the window. Rudy Sablan thereafter steps in front of the window blocking the camera and is told by an officer to step aside. He complies. 3:37 a.m. When William Sablan becomes aware of the video camera, he gets up from the stool, picks up what is identified as the liver of the victim, and displays it to the

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camera saying "Sablan...Sablan take the guts out." He then states "You want me to baby...you want me to baby this guy..." He immediately walks over to the victim's body and places his hand in the victim's open abdominal cavity and attempts to pull organs from the body. While doing this he says "Look, look, hey look." William Sablan apparently has difficulty ripping the organs from the body and says "God damn shit." At this time, Rudy Sablan tells William Sablan in Chamorro "slap him, compadre, slap him." William Sablan then says "look, look" and slaps the victim twice in the face. Rudy Sablan then begins yelling "United" in Chamorro. During this time, William Sablan walks to the sink/toilet and begins to flush it numerous times. William Sablan again approaches the cell window and says "Look, what he did...he thinks he can kill me...Sablan, Sablan William..." while demonstrating an injury to his left eye. He then turns back to the sink/toilet and begins to flush it again. 3:39 a.m. William Sablan sits on the victim's chest saying "Hey, look over here, hey...hey...look at this...over here...god damn shit..." William Sablan uses the victim's right hand to form an obscene gesture with the victim's middle finger while saying "Look at this...fuck you..." While this is going on, Rudy Sablan is yelling unintelligibly. Also while this is taking place the video clearly shows a white disposable razor lying on the floor next to the upper portion of the victim's right leg. 3:41 a.m. Rudy Sablan says to William Sablan in Chamorro "This is what you do. Put this...stand in front of the camera so they can see your face." William stands in front

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of the camera and gestures back toward the victim's body. As he does this, the white disposable razor near the victim's right leg is again clearly visible. The Sablans continue to talk to each other in Chamorro and Rudy says "... Ask this guy for a cop out ..." and William replies "Wait a little ... then we'll flush it." William Sablan then goes to the toilet and flushes it numerous times. While Rudy Sablan is sitting on the stool, William walks over to the bottom bunk, sits on it and places his foot on the victim's body. At this time, the white disposable razor is again clearly visible. The Sablans continue to talk to

each other in Chamorro while exchanging a cigarette. The conversation, however, is unintelligible. After Rudy Sablan inhales the cigarette he blows the smoke down toward the victim and hands the cigarette to William. William Sablan inhales the cigarette and places it near the victim's mouth pretending to share it with him. 3:42 a.m. While the above conversation is taking place, Rudy Sablan looks down toward the victim's body and appears to take notice of the disposable razor lying next to the victim. Rudy Sablan looks back toward the camera and tells William in Chamorro "...Over by the toilet...I'll flush this down..." William Sablan stands up and starts walking toward the cell door. Rudy Sablan again says in Chamorro "Stand by the door and I'll flush this." As William Sablan stands in front of the cell window, he reaches down to his left side in the area of the toilet. He then stands up at the window and talks to the guards. During this time Rudy Sablan has gotten up from the stool, walked over to the toilet and flushed it a number of times. William and Rudy then both stand away from the window

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in the corner near the toilet. When the camera again shows the body of the victim, the disposable razor is no longer there. 3:47 a.m. The Sablans continue to talk to each other in Chamorro but the conversation is largely unintelligible. While William Sablan stands in front of the camera, Rudy Sablan can be seen bending over near the toilet area. Rudy Sablan then stands in front of the window while William Sablan stands over the victim's body. At one point William Sablan bends down toward the victim in the area of his head. They continue to speak to each other in Chamorro and William Sablan says "He is coming." Rudy Sablan thereafter says "That's good that it is us here ... I will tell them he made me mad and we fought ..." William Sablan replies "How about we fought." William Sablan then bows a number of times to Rudy Sablan saying in English "I'm sorry ... I'm sorry about ..." 3:52 a.m. The Sablans speak to correctional officers in English but speak to each other in Chamorro. In English William Sablan says "Don't worry sir. I give you the respect. I give you the respect with authority." In Chamorro, Rudy Sablan says to William "Be good ... don't give them a hard time ... every ... the guard ... Just relax, you know." As officers continue to restrain William Sablan, he says in English "Don't worry sir ... he thinks he's a fucking bad ass ..." Rudy Sablan then tells William in Chamorro "Hey brother relax ...don't say nothing ...relax compadre ... relax your heart." Rudy and William Sablan then engage in further conversation in Chamorro. Rudy Sablan says

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"Hear me" to which William Sablan replies "Yes". Rudy Sablan then says "Because whatever they say ... you listen only to me ... do you remember that guy, when you first got here from Guam." William Sablan replies "Yes". Rudy then says "no matter what they say, don't ok ..." William says "Ok." Rudy responds "Listen to me ... listen to what I say ... don't listen to what they say compadre ... Your heart and mine are as one ..." William Sablan replies "Ok." Rudy then says to William "Just keep still here ... don't let them know about our problem until we ... we will go to court us two ... that's all you should know ... Do you understand what I said? Do you understand what I'm saying?" 3:56 a.m. Rudy Sablan thereafter calls to William saying "Hey brother .... know in your heart that whatever they say to you don't pay attention ... don't pay attention compadre ... don't say much as they have a guard here, right ..." William replies "I know, the guard from Guam." Rudy then says "There's a guard here that knows what we're saying but he's not here ... tomorrow they will bring him here and they will ask him what we said ... be good." William then replies "Ok, sorry about ..." 4:38 a.m. As William Sablan is being taken to a holding cell next to Rudy Sablan, Rudy yells to him in Chamorro "Compadre" to which William Sablan replies "Chamorro." Rudy Sablan then says in Chamorro "Don't tell them shit ... don't show them nothing too ..."

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d. Examination of the body of Joey Estrella 1. On the date of the murder at about 7:05 a.m., a piece of white plastic was

observed falling from the neck wound of Joey Estrella by Physician's Assistant Finnegan, after the body had been removed from cell 124 but before it was released to the coroner for autopsy. This was turned over to Investigator Felz to be placed into evidence. In subsequent testing, the Colorado Bureau of Investigation (CBI) compared this piece of white plastic with one of the standard Bic razors distributed to prisoners at USP-Florence. On June 16, 2000, CBI Laboratory Agent Tom J. Griffin concluded that the plastic recovered from Joey Estrella's neck wound was identical in size and structure to the corresponding portion of the razor head of the sample razor. 2. On October 10, 1999, between approximately 1:30 p.m. and 3:30 p.m., FBI

Special Agent Veltman witnessed the autopsy of the victim Joey Estrella. The autopsy was performed by Dr. David L. Bowerman of the El Paso County Coroner's Office. After the body was initially cleaned up, Dr. Bowerman and SA Veltman noted distinct ligature marks on the top and bottom of the victim's neck indicating that he had been strangled by the use of some unknown instrument or device. Because of the condition of the body and the gaping neck wounds, these marks had not been noticed previously. Based upon this discovery, SA Veltman contacted the SIS and asked that officers go through any property found in the cell that could account for ligature marks around the victim's neck. Correctional Officer Steve Rodell subsequently recovered four sets of

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radio headphones which had been removed from the cell. These were placed into evidence at approximately 3:00 p.m on the same day. Dr. Bowerman subsequently identified one of the pair of four headphones taken from cell 124 as being consistent with the ligature marks on the victim's neck. According to Dr. Bowerman, Joey Estrella died sometime between 1:00 a.m. and 3:00 a.m. on October 10, 1999. The mechanism of death was exsanguinating hemorrhage (loss of blood and oxygen to the brain) due to sharp force injuries (slash wounds) to the neck. The victim's death was not caused by strangulation, but such strangulation was sufficient to render the victim incapacitated or unconscious. The victim's neck did not contain any evidence of strangulation by hand. In Dr. Bowerman's opinion, the injuries to the victim occurred as follows: (1) Abrasions to the face and hands occurred within the general time period of the victim's death but definitely before his death. (2) The victim was alive at the time of the application of the ligature around his neck. The ligature was insufficient to cause the death of the victim, but sufficient to incapacitate him or render him unconscious. (3) The victim's throat was slashed multiple times by a back and forth motion on his neck by an unknown instrument consistent with a razor. The victim then bled to death. Such bleeding to death could take up to 30 minutes.

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(4) The victim's abdominal wall was then cut and internal organs removed from the body. The cutting of the abdominal wall occurred at the time of death or shortly thereafter. e. Statements to Law Enforcement by William Sablan Defendant Rudy Sablan points out in his Motion that William Sablan made a statement exonerating Rudy Sablan when he was initially interviewed by FBI Special Agent Veltman shortly after the murder. He also mentions a letter sent by William Sablan to his mother in which he admits committing the murder. There is no question that William Sablan took credit, even bragged about the killing and "gutting" of Joey Estrella to correctional officers immediately after the murder. However, the defendant fails to mention a third statement by William Sablan to FBI Special Agent Martin Daniell in which he does implicate Rudy Sablan and says Rudy set him up. A jury will have to sort out the roles of the two defendants based on all of the evidence, not just the statements of William Sablan. III. ARGUMENT The government agrees that capital sentencing decisions rest upon an individualized inquiry. Jones v. United States, 527 U.S. 373, 381 (1999). As this Court recognized in Rodriguez v. Zavaras, 42 F. Supp. 2d 1059 (D. Colo. 1999), however, the Eighth Amendment does not ban complicity principles from being considered in a death penalty case. Id. at 1122. Indeed, this Court found that the case law supports the

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principle that "the death penalty can be applied to a person who either intended to kill or who had a major role in the crime and showed reckless indifference." Id., citing Tison v. Arizona, 481 U.S. 137, 158 (1987) (emphasis added). The Federal Death Penalty Act broadly provides that: The government may present any information relevant to an aggravating factor for which notice has been provided under subsection (a). Information [during the penalty phase] is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. See 18 U.S.C. § 3593(c). Although the government, in this case, has no direct evidence that the defendant actually cut open Joey Estrella's body cavity, the direct evidence of defendant's strangling of the victim and his behavior following the discovery of the body provide strong support of his complicity in the murder and physical abuse of the victim's body. Thus, pursuant to § 3593(c), evidence of this type of conduct, which is outlined above, is relevant in establishing the heinous and depraved aggravating factor. In the instant case, the allegation that the defendant committed the offense in an especially heinous or depraved manner includes the following language: 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." NOI, Rudy Sablan, at 4. 14

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In United States v. Rivera, 405 F. Supp. 2d 662, 672-673 (E.D.Va. 2005), the court refused to strike a non-aggravating factor on similar grounds. In Rivera, the defendant was in jail when the murder of the government's witness took place. Among other things, the defendant was charged with conspiracy to murder this witness in order to prevent her from testifying against him. See United States v. Rivera, 363 F. Supp. 2d 814 (E.D.Va. 2005). In Rivera, one of the non-statutory aggravating factors that the government listed in its Notice of Intent to Seek a Sentence of Death was that the defendant demonstrated a lack of remorse toward the death of the witness and instead expressed delight in her death. Rivera, 405 F. Supp.2d at 673. The court declined to strike this factor based on the government's evidentiary proffer of telephone transcripts and the defendant's own words. According to United States v. Jones, 132 F.3d 232 (5 th Cir. 1998), the proper definition of "depraved" is "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. at 250. The defendant's celebratory shouts, offers of body parts of the victim to other inmates and appearing to bite one of the removed organs actions are certainly demonstrative of "depraved" conduct. Defendant's argument also ignores settled case law holding that 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, 15

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51 (1992); Lewis v. Jeffers, 497 U.S. 764, 766-67 (1990). See also United States v. Hall, 152 F.3d 381, 414 (5 th Cir. 1998). In the instant, there is the combination of strangulation to the point of unconsciousness, a throat slashing with wounds so deep the ligature marks were not visible until autopsy, and mutilation of the body at the time of death or shortly thereafter. The government's evidence directly shows that Rudy Sablan strangled Joey Estrella with a headphone cord, thus incapacitating him. Once incapacitated, the massive damage done to the victim's throat and abdomen with an intact Bic razor inside a locked prison cell housing three men, combined with Rudy Sablan's behavior in celebrating the death and directing William Sablan to cover the cell window while Rudy disposed of the murder weapon, is persuasive evidence of complicity. It took two people to murder Joey Estrella and those two people were William and Rudy Sablan. This situation is not analogous to that in Enmund v. Florida, 458 U.S. 782, 798 (1982), where a killing occurred during the commission of a robbery and the defendant had no intention of participating in or facilitating in the killing. Rather, as in Tison v. Arizona, supra, Rudy Sablan's participation in this crime was major and his mental state was at the very least one of reckless indifference. Therefore, the Eighth Amendment does not prohibit the consideration of complicity principles from being considered during the penalty phase of this case. See Rodriguez v. Zavaras, 42 F. Supp.2d at 1121-22.

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Accordingly, Rudy Sablan's Motion in Limine Regarding the "Heinous or Depraved" Statutory Aggravating Factor [R-52] should be denied. Respectfully submitted this 27 th day of March, 2006.

WILLIAM J. LEONE 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 27th day of March, 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT RUDY SABLAN'S MOTION IN LIMINE REGARDING THE "HEINOUS OR DEPRAVED" STATUTORY AGGRAVATING FACTOR (R-52) (Phase III) 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 William Sablan Patrick J. Burke [email protected]

Attorneys for Rudy Sablan Donald R. Knight [email protected] Forrest W. Lewis [email protected]

Nathan Dale Chambers [email protected] [email protected]

Susan Lynn Foreman [email protected]

Dean Steven Neuwirth [email protected]

s/ Donna Summers DONNA SUMMERS Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0406 E-mail address [email protected]

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