Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant.
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William Sablan's Response to the Government's Motion in Limine to Preclude Use of After-Action Report _______________________________________________________________________ Defendant William Sablan, through undersigned court-appointed counsel submits this response to the "Government's Motion in Limine to Preclude Use Of After-Action Report." (Document # 2077). 1. After Joey Estrella's death, the North Central Regional Director of the Federal Bureau of Prisons ("BOP"), G. L. Hershberger, requested Warden Ray E. Holt of USP Florence to appoint an After-Action Review Team. The Team was to investigate the homicide, and "analyze the chronology of events, and prepare an After-Action Review Report." (Bates # # 62260; 62279 of Attachment).1 2. The persons appointed to the Team were Associate Warden Berta Lockhart,
Initially, only a draft of the report was provided to the defense. Subsequently, a final report was provided. Both are included in the Attachment, which is being separately filed under seal. 1
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BOP Attorney J.D. Crook, BOP Chief Psychologist Eric Hutchinson, and Case Management Coordinator Betsey Foster-Johnston. After its investigation, the Team produced an "After-Action Review of October 10, 1999 ­ Inmate Death." According to the report, it was based upon "interviews with involved staff and examination of the available documentation and videotape." (Id.). The interviews of staff occurred on October 28 and 29 and November 2, 1999. (Bates # 62275). 3. The government seeks to preclude William Sablan from "introducing" the report and from "using such report in examining witnesses." (Gov Mtn at 1). Admissibility of the Report 4. The government initially objects to the admissibility of the report because it includes hearsay. (Gov Mtn ¶¶ 2, 3). 5. Fed. R. Evid. 803, however, sets out certain types of evidence that are not excluded by the hearsay rule, including `[p]ublic records and reports." Rule 803(8). More specifically, the Rule provides that: The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of
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trustworthiness. 6. Acknowledging the rule, the government asserts that "[i]n order [sic] introduce the report, which otherwise consists of multiple layers of hearsay, the defendant would need to demonstrate that it was `made pursuant to authority granted by law'", citing Fed. R. Evid. 803(8)(C). (Gov Mtn ¶ 2). Further, "[u]ntil such showing is made, the After-Action report does not escape the hearsay rules." (Id.). 7. It is easily demonstrated that the report was made pursuant to authority granted by law. 18 U.S.C. § 4042 sets out the statutory duties of the BOP. In addition to being in charge of the "management and regulation of all Federal penal and correctional institutions", BOP is required to "provide suitable quarters and provide for the safekeeping, care, and subsistence" and "protection" of persons convicted of federal offenses." 18 U.S.C. § 4042(a)(2) & (3). As a result of these statutory duties, BOP has adopted a Correctional Services Procedures Manual. Its program statement specifies that it is "[t]o implement policies, procedures, and guidelines to protect the public and maintain a secure, safe and orderly living and working environment for inmates and staff." http://www.bop.gov/policy/progstat/5500_012. Chapter 6 of the Manual relates to "After-Action Review and Reporting." It provides that when a major incident, such as a homicide, occurs the Regional Director may appoint an After-Action Review Team to investigate the incident and prepare an After-Action Report. Correctional Services Procedures Manual § 601. The format of such a report is set out in § 604 and includes a
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recommendation section. Thus, the report was prepared under power granted by law and is admissible under subsection (C) of Rule 803(8). It is also admissible under subsection (A) in that it is a report reflecting BOP activity in relation to a major incident at one of its facilities for the purpose of understanding what occurred and how such incidents can be avoided in the future, so all of its facilities can be made safer. 8. Specifically in relation to the recommendation section of the After-Action Report, the government objects to its admission on the grounds that it "does not consist of `factual findings.'" (Gov Mtn ¶ 4). Again, this objection relates to subsection (C) of Rule 803(8), which permits the admission of "factual findings resulting from an investigation . . .." 9. The government's attempt to distinguish "factual findings" from "recommendations" reflects an interpretation of the rule that has been rejected by the U.S. Supreme Court in Beech Aircraft v. Rainey, 488 U.S. 153 (1988). There, the Court concluded that "factually based conclusions or opinions are not on that account excluded

from the scope of Rule 803(8)(C)." Id. at 162.2
The Court relied heavily on the Advisory Committee's comments, stating: "The Committee's concern was clearly whether reports of this kind should be admissible. Nowhere in its comments is there the slightest indication that it even considered the solution of admitting only `factual' statements from such reports. Rather, the Committee referred throughout to `reports,' without any such differentiation regarding the statements they contained. What the 4
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10. The government also complains that the recommendation section of the report is irrelevant; that "[n]one of those recommendations bears on the issue of either the defendant's guilt or the defendant's punishment." (Gov Mtn ¶ 4). This statement is grossly inaccurate. 11. As to the guilt/innocence trial, several recommendations relate to William's defenses. For example, intoxication can negate the premeditation element of first degree murder. Despite the fact that cell 124 reeked of hooch, BOP staff failed to administer breathalyzer tests on William and Rudy Sablan and destroyed hooch-related evidence. The recommendations call for the removal of cell occupants and the administration of breathalyzer tests when it is believed intoxicants are present, as well as the creation of a record of items intended for disposal, so it can be reviewed. Although the recommendations reflect that BOP had the capacity to preserve this evidence, its failure to do so in this case has impacted a defense. Moreover, all of the recommendations are relevant to William's punishment. BOP had a causal connection to the homicide through a multitude of acts and omissions,
Committee referred to in the Rule's language as `reports . . . setting forth . . . factual findings' is surely nothing more or less than what in its commentary it called `evaluative reports.' Its solution as to their admissibility is clearly stated in the final paragraph of its report on this Rule. That solution consists of two principles: First, `the rule . . . assumes admissibility in the first instance . . .." Second, it provides `ample provision for escape if sufficient negative factors are present.' That `provision for escape' is contained in the final clause of the Rule: evaluative reports are admissible `unless the sources of information or other circumstances indicate lack of trustworthiness.' This trustworthiness inquiry ­ and not an arbitrary distinction between `fact' and `opinion' ­ was the Committee's primary safeguard against the admission of unreliable evidence, and it is important to note that it applies to all elements of the report." Id. at 166-67. 5

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including, but not limited to, its failure to take appropriate measures regarding William's mental health problems upon his arrival; its placement of William with two violent individuals, one of whom had been referred to ADX Control Unit and should have been housed separately; providing the alleged murder weapon; ignoring the fact the cellmates were drinking and fighting and that duress signals were sent from the cell. The recommendations clearly reflect that BOP had the capability of performing its duties in a manner that could have prevented the entire incident. 12. The government additionally claims that the exception contained in subsection (B) of Rule 803 ­ "matters observed by police officers and other law enforcement personnel" ­ applies to those portions of the report reflecting personal observations of staff as reported to the After-Action Team. (Gov. Mtn ¶ 3). 13. This exception does not apply. Even assuming arguendo that BOP staff are included within the term "police officers and other law enforcement personnel", "[t]he limitation applies only to the introduction of a public record or report when offered by the prosecution in a criminal case; thus public records or reports containing statements of matters observed first-hand pursuant to duty imposed by law as to which there was a duty to report are admissible when offered by the criminal defendant." Michael H. Grahaman, Handbook of Federal Evidence, § 803.8 (4th ed. 2000). Moreover, unlike the ordinary police report, this After-Action Report was not authored by an individual cop, rather it is the report of the After-Action Team, which consisted of high-level BOP appointees. Thus the justification of Rule 803 ­ "the assumption that a public official will perform his
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duty properly" ­ applies to the After-Action Team. Fed. R. Evid. 803(8) advisory committee note. 3 14. Finally, and again in relation to the recommendation section, the government argues that "as a matter of policy, the BOP should be encouraged to make recommendations for change after an incident such as this. Allowing the defense to introduce the After-Action recommendations in this trial will have the effect of deterring similar BOP investigations and recommendations in the future. Said another way, the government argues that if the Court does not preclude the use of the After-Action Report, then BOP will shirk its statutory duties, so DOJ can win cases and have better chances at executing people. One would like to think that is not how the government conducts itself. 15. Not only is the report admissible under Rule 803(8), it is also admissible under Fed. R. Evid. 801(d)(2) as the admission by a party-opponent. Rule 801(d) provides, in pertinent part, that: "[a] statement is not hearsay if ­ (2) Admission by partyopponent. The statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope
"`The reason for [the exclusion of observations made by police officers and other law enforcement personnel] is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.'" Michael H. Grahman, Handbook of Federal Evidence § 803.8 (4th ed. 2000) (quoting Report of Senate Committee on the Judiciary). 7
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of the agency or employment , and during the existence of the relationship, . . .. BOP is part of the U.S. Department of Justice ("DOJ"). 28 CFR § 0.1. The United States Attorney also is part of DOJ. Id. To the extent that the After-Action Report is offered by William Sablan at his trial, the report is not excludable as hearsay because DOJ not only made the report, but it is also prosecuting the case. Using Report in Examining Witnesses 16. The After-Action Report initially notes that it is based, in part, on "interviews with involved staff." (Bates ## 62260, 62279). Thereafter, it lists the staff members who were interviewed by the After-Action Team. (Bates # 62275). They include: Lieutenant Howard Lieutenant Oliver Correctional Officer DeHerrera Correctional Officer Forsythe Unite Manager Perdue Health Services Administrator Finnegan Physcian's Assistant Hernandez Captain Duncan SIS Felz Medical Duty Officer Dr. Briningstool FBI Veltman All of these individuals are named in the government's witness list. (Document 2081-2). Certainly, if any or all of these individuals actually testify at trial, and their testimony is inconsistent with their prior statements to the Team, they can be questioned about the

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inconsistencies. Fed. R. Evid. 613(a).4 Additionally, extrinsic evidence of the prior inconsistent statement, i.e., relevant portions of the report, can be admitted into evidence. Fed. R. Evid. 613(b).5 WHEREFORE, the Court should deny the government's motion in limine to preclude William Sablan from introducing the After-Action Report or using it in examining witnesses. Dated: December 28, 2006

Respectfully submitted, Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Nathan Chambers Chambers, Dansky & Mulvahill 1601Blake Street, Suite 300 Denver, CO 80202 303-825-2222 Counsel for William Sablan

Rule 613(a) states: "Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel." Rule 613(b) states: "Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to the admissions of a party-opponent as defined in rule 801(d)(2)." 9
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CERTIFICATE OF SERVICE I hereby certify that on December 28, 2006, I electronically filed the foregoing William Sablan's Response to the Government's Motion in Limine to Preclude Use of After-Action Report with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] By: /s/Susan L. Foreman

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