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

Case 1:00-cr-00531-WYD

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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 is before the Court on Rudy Sablan' Motion in Limine to s Preclude Evidence of Character and Extrinsic Acts (R-11) filed August 17, 2001. This motion seeks an order prohibiting the Government from presenting evidence of Rudy' s Sablan' character or extrinsic acts in this matter. For the reasons stated below, this s motion is granted. I. INTRODUCTION After Rudy Sablan' Motion in Limine was filed, the Government filed an Initial s Notice Pursuant to Federal Rule of Evidence 404(b) and Response to Defendant Rudy Sablan' Motion in Limine (dated September 10, 2001). The Notice stated that the s Government intended to introduce the following evidence against Rudy Sablan: (1) evidence that he made threats against William Sablan, and (2) evidence that Rudy

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Sablan solicited false testimony from Edward Lee Spry in order to discredit the testimony of Government witnesses Mark Farmer and Arthur Peck. By Order filed November 17, 2005, the parties were ordered to meet and confer on this issue and to file supplemental briefs stating their positions due to the staleness of Rudy Sablan' Motion in Limine and the Notice and the fact that Defendant' Motion s s in Limine did not address the specific acts that the Government seeks to introduce. Supplemental briefs were filed by both parties on November 28, 2005. The Government indicated in its pleading that it no longer intends to introduce evidence provided by Edward Lee Spry. It does, however, intend to introduce evidence relating to Rudy Sablan' efforts to convince William Sablan not to cooperate with s authorities and alleged threats made by Rudy Sablan against William Sablan for doing so. The Government indicated that this evidence will be presented at trial through the testimony of Jay Vought in connection with conversations he had with Rudy while they were both housed in ADX-Florence following the murder, as detailed in a letter from Vought dated December 20, 2000. The Government states that the purpose of this evidence under Rule 404(b) is to show consciousness of guilt. Rudy Sablan objects to the admission of such evidence. He argues that this evidence does not meet the requirements of Rule 401 and 403, as it is not relevant and probative on the issue of who killed Joey Estrella [" Estrella" or whether complicity has ] been proven. Further, even if relevant under Rule 404(b) as consciousness of guilt, Rudy Sablan argues that it is unduly prejudicial and should be excluded under Rule 403. -2-

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II.

ANALYSIS Admission of Rule 404(b) evidence is governed by a four prong test originally

set forth in Huddleston v. United States, 485 U.S. 681 (1988). See United States v. Wilson, 107 F.3d 774, 782 (10th Cir. 1997); United States v. Birch, 39 F.3d 1089, 1094 (10th Cir. 1994). This test requires that 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; (3) must have real probative value, not just possible worth; and (4) must be close in time to the crime charged.' United States v. Harrison, " 942 F.2d 751, 759 (10th Cir. 1991) (quotation omitted). When the Government is moving for admission of 404(b) evidence, it " bears the burden of showing how a defendant' past acts are ` s relevant to an issue in the case by articulat[ing] precisely the evidentiary hypothesis by which a fact of consequence must be inferred from the evidence of other acts.' (quotations and internal quotation "Id. marks omitted). "There must be a clear and logical connection between the alleged ` earlier offense or misconduct and the case being tried.' Harrison, 942 F.2d at 759 " (quotation omitted). In the case at hand, I agree with the Government that evidence of threats or intimidation of a witness or a co-defendant may be admissible under Rule 404(b) as evidence of consciousness of guilt " a direct connection is established between the if threat and the defendant." United States v. Smith, 629 F.2d 650, 651 (10th Cir. 1980), cert. denied, 449 U.S. 994) (1981); United States v. Esparsen, 930 F.2d 1461, 1476 n. -3-

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16 (10th Cir.), cert. denied, 502 U.S. 1036 (1992). Other Circuits have also held that evidence of threats constitute consciousness of guilt and are admissible under 404(b). See United States v. Copeland, 321 F.3d 582, 597 (6th Cir. 2003) (evidence of threats against government witnesses or testifying co-defendants are admissible).1 The Tenth Circuit has noted that " [t]he cases holding threats against a witness admissible reason that such threats show the defendant' intent to prevent the witness from testifying, and s are thus an implicit acknowledgment of the defendant' guilt" United States v Nichols, s . 374 F.3d 959, 967 (10th Cir. 2004), cert. granted, judgment vacated on other grounds, 125 S.Ct. 1082 (2005). Thus, Defendant' argument that Rule 404(b) has no s applicability to the conduct at issue appears to be without merit. Even if the evidence is thus admissible under Rule 404(b), I find that such evidence must be excluded under Rule 403 because I find the evidence to be unduly prejudicial. As the Third Circuit noted, while " [t]hreat evidence' may be admitted to show consciousness of guilt" such threats " , constitute a striking example of evidence that ' appeals to the jury' sympathies, arouses its sense of horror, provokes its instinct s to punish,' otherwise ` or may cause a jury to base its decision on something other than the established propositions in the case.' Unites States v. Guerrero, 803 F.2d 783, " 785-86 (3rd Cir. 1986) (quoting Carter v. Hewitt, 617 F.2d 961, 972 (3rd Cir. 1980); J. Weinstein & M. Berger, Weinstein' Evidence § 403[03] (1978)); see also United States s
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See also United States v. Miller, 276 F.3d 370, 373-74 (7th Cir. 2002); United States v. Young, 248 F.3d 260, 272 (4th Cir.), cert. denied, 533 U.S. 961 (2001); United States v. Bein, 728 F.2d 107, 11415 (2nd Cir. 1984), cert. denied, 469 U.S. 837 (1984); United States v. Gonsalves, 668 F.2d 73, 74-76 (1st Cir.), cert. denied, 456 U.S. 909 (1982).; United States v Elbert, No. 05-40026-01-SAC, 2005 WL 1863048 (D. Kan. 2005).

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v. Gonsalves, 668 F.2d 73, 75-76 (1st Cir. 1982) (noting that " [o]ther courts have held that evidence of inflammatory threats which tend to paint a picture of the defendant as an unusually violent person ­ or as a cold-blooded killer ­ may cause ` severe prejudice' to the defendant and, in a proper case, should be excluded. . . " cert. denied, 456 U.S. ), 909 (1982). In this case, I find that the probative value of the evidence the Government seeks to admit under Rule 404(b) as to Rudy Sablan is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. This is a capital case where life and death is on the line for the Defendants. Since the only other persons present in the prison cell where Estrella was killed were Rudy and William Sablan, a key issue for the jury to decide will be to decide which of the Defendants killed the victim. Allowing in evidence of threats by Rudy Sablan against William Sablan could influence the jury into thinking that Rudy is capable of murder, which could improperly influence their decision against him when they make the ultimate decision as to guilt. I further note that the Government did not identify an important purpose for the introduction of such evidence. See United States v. Qamar, 671 F.2d 732, 736 (2d Cir. 1982) (since " potential prejudice from death threats may be great the . . . the government must have an important purpose for the evidence in order to satisfy the Rule 403 balancing tests" Finally, I do not believe that the prejudice that is likely ). to be caused by the introduction of this evidence could be cured by limiting instructions. As further support for my decision, I note the Tenth Circuit' decision in United s States v. McManaman, 606 F.2d 919 (10th Cir. 1979). In that case, the district court -5-

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allowed in a taped conversation between the defendant and another person where they referred to some drug dealings between themselves and discussed killing a government witness and an agreement that the defendant kill another man. Id. at 923. The Tenth Circuit held that the admission of this evidence was prejudicial error because " probative value was far outweighed by the danger of unfair prejudice." Id. the It noted that " evidence that defendants had threatened or attempted to kill Government agents or informers was held in another case to have too great a prejudicial impact because it " was said to suggest a jury decision on an improper basis that defendants were ` men'. Id. (quoting United States v. Weir, 575 F.2d 668, 671-72 (8th Cir. bad " 1978)). Accordingly, I find that this evidence must be excluded, and that Rudy Sablan' s motion in limine should be granted. It is therefore ORDERED that Rudy Sablan' Motion in Limine to Preclude Evidence of s Character and Extrinsic Acts (R-11) filed August 17, 2001 is GRANTED. Evidence of Rudy Sablan' efforts to convince William Sablan not to cooperate with authorities and s his alleged threats to William Sablan shall not be admissible at trial. Dated: January 17, 2006 BY THE COURT:

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

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