Free Motion in Limine - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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Filed 02/21/2006

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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 IN LIMINE REGARDING THE "HEINOUS OR DEPRAVED" STATUTORY AGGRAVATING FACTOR (R-52) (Phase III) ______________________________________________________________________________ Rudy Sablan, by and through counsel, requests an order restricting the government's evidence regarding the § 3592(c)(6) aggravating factor as more fully set forth herein. 1. The government's proffer in the Notice of Intent ("NOI") on the "heinous and

depraved" aggravating factor is based on two factual scenarios: (1) the opening of Mr. Estrella's abdomen after his death and the removal of organs; and (2) the "enjoyment of the killing, evidenced by celebratory shouts . . . ." 2. Evidentiary issues regarding this aggravator under the facts of this case are many

and complex. The cornerstone issue is the question of what Rudy Sablan did. This is not an issue of complicity, apparent approval, 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).

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2.

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. 3. The government over represents the significance of "enjoyment of the killing" as

an evidentiary basis for this aggravator. 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 killing. Celebratory shouts and other actions after the serious physical abuse are insufficient evidence to support this aggravator. 4. The government also cites United States v. Hall, 152 F.3d 381, 414 (5th Cir.

1998), in support of this aggravator. There the trial 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 2

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that the defendant committed the offense in an especially heinous, cruel or depraved manner." (Emphasis in original.) The Fifth Circuit found no doubt 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. 5. William Sablan 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. 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 referred to in the Grand Jury testimony of government witnesses. In the letter, William Sablan admits 3

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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. 6. Under the circumstances of this case, the Court's evidentiary gatekeeping role is

extremely important. As a matter of law, evidence such as celebratory shouts and even displaying body parts after they were removed are not relevant to the serious physical abuse predicate for this aggravator. Unless the government is prepared to show, beyond a reasonable doubt, that Rudy Sablan intentionally committed serious physical abuse, i.e., that he cut open Mr. 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. 7. The Court should require the government to make a detailed proffer on this issue,

including direct evidence not just on what happened but on what Rudy did to justify this aggravator. If the government cannot do so, the Court should exclude evidence that Mr. Estrella's abdomen was cut open and organs removed under 3593(c) and Eighth Amendment jurisprudence. CONCLUSION Rudy Sablan requests an order directing the government to submit a proffer on this issue and, after hearing, order 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 4

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of the organs . . ." and, unless the government provides constitutionally sufficient and admissible evidence that Rudy intentionally opened the body cavity, with the specific intent to inflict serious physical abuse beyond what was necessary to kill Mr. Estrella, an order precluding evidence that Mr. Estrella's body cavity was opened and organs were removed. 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 IN LIMINE REGARDING THE "HEINOUS OR DEPRAVED" STATUTORY AGGRAVATING FACTOR (R-52) (Phase III) was electronically filed with the Clerk of the Court using the CM/ECF system on this 21st day of February, 2006, which will send notification of such filing to the to the following e-mail addresses: Brenda Taylor [email protected] Philip Brimmer [email protected] Michael Hegarty [email protected] Patrick J. Burke [email protected] Dean Neuwirth [email protected] Nathan D. Chambers [email protected] Susan L. Foreman [email protected]

s/Polly Ashley

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