Free Order on Motion in Limine - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Criminal Case No. 00-CR-531-D UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN and 2. RUDY CABRERA SABLAN Defendants. _____________________________________________________________________ ORDER _____________________________________________________________________ THIS MATTER comes before the Court on Rudy Sablan' Motion in Limine to s Admit Evidence of Character and Habit Regarding Joey Estrella (R-15) filed August 17, 2001. Rudy Sablan requests an order in limine allowing the admission of evidence regarding the character and habits of Joey Estrella [" Estrella" the alleged victim, ], pursuant to FED. R. EVID. 404 and 406. Rudy Sablan argues that there is substantial evidence from government witnesses that Estrella was the aggressor and that William Sablan acted in selfdefense. Rudy Sablan seeks to admit character evidence regarding Estrella' s reputation for violence as well as specific acts of violence against other inmates, prison guards and prison personnel.1

The prior acts that Defendant seeks to admit in the motion include seven convictions for use and possession of intoxicants and/or illegal drugs, one conviction for possession of a weapon that was

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This Order is meant to provide an analysis of the law on Rules 404, 405 and 406. I also provide a ruling as to the admissibility of specific instances of conduct under Rule 404(a). As stated at the hearing on this motion held December 6, 2005, I defer a ruling on admissibility of specific instances of prior misconduct of Estrella under Rules 404(b) and 406 as well as relevance issues under Rule 403 until a later hearing to be set after severance motions are ruled on. II. ANALYSIS A. Rules 404(a) and 405

As to Rule 404(a), while evidence of a person' character or a trait of character s is not admissible for the purpose of proving action in conformity therewith on a particular occasion, Rule 404(a)(2) provides that " evidence of a pertinent trait or character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the aggressor" is admissible. The Tenth Circuit has interpreted Rule 404(a)(2) to mean that evidence as to the character of the victim as to violence is relevant to a self-defense claim or to show that the victim was the aggressor. United States v. Bautista, 145 F.3d 1140, 1152 (10th Cir.), cert. denied, 525 U.S. 911 (1998); United States v. Talamante, 981 F.2d 1153, 1156 (10th Cir. 1992), cert. denied, 507 U.S. 1041 (1993); Perrin v. Anderson,

found in Estrella' cell, seven incidents regarding assaults/threats/insolence towards prison guards or s staff, and nine incidents of assaults or threats towards other inmates. Defendant submitted a notebook with further information regarding some of these incidents at the hearing on this motion on December 6, 2005. Defendant also clarified at that hearing that he no longer seeks to admit the convictions for use and possession of intoxicants.

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784 F.2d 1040, 1044 (10th Cir. 1986); see also United States v. Herder, No. 0102357, 01-2358, 59 Fed. Appx. 257, 262-63 (10th Cir.), cert. denied, 539 U.S. 934 (2003). This reflects the principle that it is " desirable to afford a criminal defendant every opportunity to exonerate himself." Perrin, 784 F.2d at 1044. In order for Rule 404(a)(2) to become applicable in this case, there will obviously need to be evidence at trial that substantiates the self-defense claim, i.e., that Estrella was the aggressor. Further, if Defendants seek to introduce such character evidence, they " proceed[] at [their] own risk." Perrin, 784 F.2d at 1044. Once the defendant " offers evidence of his or his victim' character, the prosecution may offer contrary s evidence." Id. Assuming there may be evidence to substantiate that Estrella was the aggressor such that evidence of his character is admissible under 404(a)(2), the next analysis is the method of proof of this evidence. This is governed by Rule 405, which states: (a) In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, crime, or defense, proof may also be made of specific instances of that person' conduct. s

(b)

FED. R. EVID. 405. As the Tenth Circuit recognized, " testimony concerning specific instances of conduct is the most convincing, of course, but it also ` possesses the greatest capacity to arouse prejudice, to confuse, to surprise and to consume time.' Perrin, 784 F.2d at "

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1045. Evidence of a violent disposition of the victim to show that he was the aggressor or to prove self defense has been held by the Tenth Circuit to be an example of the circumstantial use of character evidence, i.e., it is not an essential element of the crime or defense Id. at 1044; see also Bautista, 145 F.3d at 1152. Thus, I agree with the Government that character evidence of Estrella may only be offered through reputation and opinion evidence under Rule 405(a) -- specific instances are not allowed under 405(b). Perrin, 784 F.2d at 1044; see also Bautista, 145 F.3d at 1152; Talamante, 981 F.2d at 1156; United States v. Keiser, 57 F.3d 847, 854-55 (9th Cir.) (whether victim had violent character is not essential element of the defense that the violence was justified - even had the defendant proven that the victim was a violent person, the jury could still have decided that the defendant was using unlawful force), cert. denied, 516 U.S. 1029 (1995). In conclusion, character evidence of Estrella' violent propensities will most s likely be admissible under 404(a)(2) if there is evidence that supports the self-defense theory, i.e., that Estrella was the aggressor. However such character evidence must be offered only by way of reputation or by testimony in the form of opinion. The specific instances of conduct sought to be admitted by Rudy Sablan in his Motion in Limine are not admissible under Rules 404(a) and 405. B. Rule 404(b):

Thus, the next issue is whether Rule 404(b) allows for admission of the specific instances of violence. Rudy Sablan did not refer to Rule 404(b) in his motion or cite for which purpose the evidence would be admitted under 404(b) if he were to rely on this -4-

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Rule. He did reference Rule 404(b), however, at the hearing on this motion on December 6, 2005. I thus address the applicability of this Rule. Some courts have ruled that Rule 404(b) allows specific instances of other acts of violence to be admitted to show the defendant' state of mind and his reasonable s fear of the victim. See Government of the Virgin Islands v. Carino, 631 F.2d 226, 22930 (3rd Cir. 1980); United States v. Burks, 470 F.2d 432, 435 (D.C. Cir. 1972). The Third Circuit held that since this evidence was not the circumstantial use of character evidence to prove conduct, it is not barred by either Rule 404 or 405. Carino, 631 F.2d at 229. The Tenth Circuit in Talamante stated that it has not decided whether evidence of other wrongs can be used to demonstrate the defendant' state of mind or fear of the s victim. Id., 981 F.2d at 1156. The Tenth Circuit later recognized, however, that evidence related to a claim of self-defense which rests on portraying the victim as a violent man implicates both 404(a) and (b), as well as 405, 406 and 608. United States v. Yazzie, 188 F.3d 1178, 1187 (10th Cir. 1999). Yazzie held, however, that the victim' s character was categorically excluded under Rule 404 except in three instances, only one of which it found applicable in that case, Rule 404(a). Id. at 1189. Under such rule, Yazzie stated that " [t]here is ample precedent defining the circumstances and bound for admitting evidence of a victim' violent character to prove a claim of selfs defense"but that 405 limits such proof to opinion or reputation testimony. Id. at 1190. Yazzie did not further address 404(b). Thus, it is unclear whether Yazzie intended for

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Rule 404(b) not to apply to such evidence. or whether it simply found, under the circumstances of that case, that the rule was inapplicable. Another relevant case is Herder. In that case, while the Tenth Circuit did not actually decide the issue, it seemed to indicate that Rule 404(b) may be applicable to such evidence. There, the defendant sought to admit evidence of prior acts of violence by the victim under Rules 404(a)(2) and (b) at the trial, but did not differentiate among the incidents or make any proffer or argument with respect to permissible grounds for admissibility of such evidence under Rule 404(b). 59 Fed. Appx. at 265. Upon questioning by the trial court, counsel then actively steered the court away from Rule 404(b) and stressed only Rule 404(a). Id. The Tenth Circuit affirmed the district court' s exclusion of such evidence since defense counsel failed to precisely articulate the purpose for which such evidence was offered. It noted, however, that if counsel had argued some basis for admissibility of the challenged evidence, the court would still have had to conduct a balancing test under Rule 403 " which would include the possibility of confusion arising from potential mini trials at least with respect to [a couple of the prior acts of violence]" Id. at 265 n. 5. . If Defendant does rely on Rule 404(b) for admission of such evidence, I find from the foregoing that such evidence may be admissible under that Rule. While the Tenth Circuit has not definitively decided the issue, it has at least implied that Rule 404(b) may be relevant to such evidence. Further, the Government appeared to concede in its response to Defendant' motion that evidence of prior acts of violence of the victim may s be relevant under Rule 404(b) under the Third Circuit' decision in Carino. If the s -6-

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evidence is admissible under Rule 404(b), it must meet the " stringent criteria"the Tenth Circuit has " required for admission under Rule 404(b)." Talamante, 981 F.2d at 1156. The criteria for admission of Rule 404(b) evidence is as follows. First, " [a]lthough 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, i.e., 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. The party moving for its admission " " bears the burden of showing how a [victim' past acts are ` s] relevant to an issue in the case." " There must be a clear and logical connection between the alleged earlier offense or misconduct and the case being tried." Id. 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." 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. -7-

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If Defendant is able to satisfy the requirements stated in the previous paragraph, he still would have other hurdles to overcome. For example, he would have to show that the acts occurred within close proximity of the incident at issue. As stated in United States v. Mixon, No. 98-3004, 1999 WL 436269, *5 (10th Cir.), " prior [acts are] relevant when that conduct is ` close in time, highly probative, and similar to the activity with which the defendant is charged.' (quoting United States v. Wilson, 107 F.3d "Id. 774, 785 (10th Cir. 1997), cert. denied, 528 U.S. 1066 (1999). Offenses were not close in time in Mixon when they occurred almost four years before the conduct charged in the indictment. Id.; see also United States v. Becker, 230 F.3d 1224, 1232 (10th Cir. 2000) (" [f]our to six years transcends our conception of ` close in time' . . . " (quotation . ) omitted), cert. denied, 532 U.S. 1000 (2001); United States v. Ramirez, 63 F.3d 937, 943-44 (10th Cir.1995) (upholding the admission of prior acts that occurred one year earlier). Further, Defendant may need to show that he knew of the specific acts of violence that he seeks to admit, or at least of Estrella' violent character. See United s States v. Burks, 470 F.2d 432, 434-35 (D.C. Cir. 1972) (evidence of the victim' violent s character, including evidence of specific acts of violence, is admissible where a claim of self-defense is raised " where there is evidence that the defendant knew of the [victim' character" This makes sense since one cannot fear another person based s] ). on their prior violent acts if one does not know of such acts. On the other hand, the First Circuit held that a prior act of violence by the victim that occurred shortly before the crime at issue, even though unknown to the defendant, -8-

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was relevant under Rule 404 as tending to portray the victim as a violent man. Fortini v. Murphy, 257 F.3d 39, 46 (1st Cir. 2001), cert. denied, 535 U.S. 1018 (2002). As stated therein, " [a]lthough the evidence of the [prior episode of violence] was certainly not relevant to Fortini' state of mind (since he did not then know about the fight), it was s relevant to [the victim' state of mind, making it more likely than it would be without the s] evidence that [the victim] lunged at Fortini, as the latter claimed." Id. I do not decide this issue today, but simply note this is another possible hurdle for Defendant. Finally, even if I find this evidence to be admissible under Rule 404(b), I would still need to determine whether the prejudicial effect of the evidence substantially outweighs its probative value under Rule 403. Harrison, 942 F.2d at 760. I note in that regard that the Tenth Circuit seemed to take a dim view of such evidence in Talamante, finding it would have been prejudicial in many instances because the admission of same " could have led to collateral mini trials in which the defense and the government attempted to characterize the victim' relationship to the actors in those incidents." Id., s 981 F.2d at 1156 n. 5. Similarly, the Tenth Circuit in Herder indicated that such evidence may " include the possibility of confusion arising from potential mini trials . . . ." Id., 59 Fed. Appx. at 265 n. 5. C. Rule 406

Finally, evidence of a person' violent character may be admissible under Rule s 406 dealing with habits. See Perrin, 784 F.2d at 1045-46; Yazzie, 188 F.3d at 1190. " Habit"is defined as " regular practice of meeting a particular kind of situation with a a

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certain type of conduct, or a reflex behavior in a specific set of circumstances." Perrin, 784 F.2d at 1045. Yazzie stated: Habit evidence may offer a backdoor to proving character for, although evidence an individual routinely acted in a particular manner may be offered to show he acted in conformity on an occasion, these routine practices may also coalesce to provide specific instances proving character. A habit of routinely accosting others may, thus, provide potent evidence the individual similarly acted in conformity and may have been the aggressor in a particular instance." Id., 188 F.3d at 1190 (emphasis in original). However, " potential of establishing this the forbidden ultimate fact, proof of action in conformity with one' character, makes its s admission highly discretionary and potentially troublesome." Id. (emphasis in original). In other words, while " Rule 406 does not require an individual ` act in a given way to every minute' every situation, ` in [t]he extent to which instances must be multiplied and consistency of behavior maintained in order to rise to the status of habit inevitably gives rise to differences of opinion." Id. (internal footnote and quotations omitted). I defer a ruling on whether Defendant can meet the requirements of this Rule. I do note, however, that I find it improbable that Defendant will be able to show that the specific acts of violence sought to be admitted rose to the level of a habit, i.e., that Estrella regularly dealt with inmates (or guards) with violence. III. CONCLUSION Based upon the foregoing, it is ORDERED that Defendant Rudy Sablan' Motion in Limine to Admit Evidence of s Character and Habit Regarding Joey Estrella (R-15) filed August 17, 2001 is DENIED IN PART AND DEFERRED IN PART. Specifically, it is -10-

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ORDERED that to the extent Rudy Sablan seeks to admit the specific acts of violence of Joey Estrella referenced in the motion under Rule 404(a), the motion is DENIED. The motion is DEFERRED in all other respects until a later hearing. Dated: January 17, 2006 BY THE COURT:

s/ Wiley Y. Daniel Wiley Y. Daniel U. S. District Judge

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