Free Order on Motion to Sever Defendant - 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-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN and 2. RUDY CABRERA SABLAN Defendants. _____________________________________________________________________ SEVERANCE ORDER _____________________________________________________________________ I. INTRODUCTION THIS MATTER comes before the Court on motions to sever filed by Defendants William Sablan and Rudy Sablan. Specifically, Rudy Sablan filed a Motion for Severance of Counts and Separate Trials (R-24) on August 17, 2001, and William Sablan filed a Motion to Sever under seal on August 17, 2001. A consolidated response was filed on September 10, 2001. A supplement was filed by William Sablan on October 24, 2001, and a response thereto was filed April 8, 2002. These motions were deferred until other evidentiary issues and motions had been resolved. Pursuant to the Court' request, on April 24, 2006, Rudy Sablan filed a pleading s entitled " Undated Motion for Severance by Defendant Rudy Sablan"and William Sablan filed a Renewed Motion for Severance. A consolidated response was filed by

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the Government on May 5, 2006, and William Sablan filed a reply on May 12, 2006. A hearing was held on the motions to sever on Tuesday, May 16, 2006. Defendants assert that severance in this case is appropriate on a number of grounds. They assert that a joint trial would necessarily compromise their right to present a complete defense and/or that their defenses may be antagonistic. It is also argued that severance is necessary to avoid prejudice to the Defendants at the penalty phase. Defendants further contend that (1) the level of alleged involvement is quite disparate between the Defendants, (2) severance is appropriate due to the complexity and volume of the evidence, and (3) there may be issues under Bruton v. United States, 391 U.S. 123 (1967) and/or Crawford v. Washington, 541 U.S. 36 (2004). Each Defendant also has individualized arguments regarding the propriety of severance. William Sablan seeks severance on the additional basis that he wishes to present evidence of Rudy Sablan' prior assaults as " s reverse"404(b) evidence to show that Rudy Sablan committed the offense at issue. William Sablan also asserts that severance is necessary due to death threats made by Rudy Sablan against him. Rudy Sablan, on the other hand, contends that a severance is warranted due to William Sablan' incompetency and related mental health issues, and that he has been denied s access to records and precluded from court proceedings on these issues. Rudy Sablan argues that it is essential he be given access to this material and allowed to present it at trial as part of his defense. The Government opposes severance, arguing that Defendants have not shown that there is a serious risk that a joint trial would compromise a specific trial right or -2-

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prevent the jury from making a reliable judgment about guilt or innocence. The Government also asserts, among other things, that finger pointing between the Defendants does not warrant severance, that the defenses are not mutually antagonistic, that any Bruton issues can be adequately addressed, and that the Court can instruct the jury to consider individually the evidence presented as to each Defendant. The Government also avers that deciding whether severance is necessary as to the penalty phase is premature. II ANALYSIS A. Legal Standard

Defendants move for a severance pursuant to Rule 14 of the Federal Rules of Criminal Procedure. That rule provides a basis for the entering of a discretionary severance where prejudice is shown. In deciding a motion for severance under Rule 14, the court " a duty to weigh the prejudice resulting from a joint trial of cohas defendants against the expense and inconvenience of separate trials." United States v. Hack, 782 F.2d 862, 870 (10th Cir.), cert. denied, 476 U.S. 1184 (1986). While " the decision to grant a severance is within the sound discretion of the district court" id., , there is a preference for joint trials. Zafiro v. United States, 506 U.S. 534, 538 (1993). The Supreme Court in Zafiro indicated that a severance should be granted under Rule 14 " only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Id. at 539. It is not enough to show that severance would increase a defendant' chances of acquittal. United States v. Paveto, 881 F.2d 844, s -3-

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857 (10th Cir.), cert. denied, 493 U.S. 943 (1989). It is also not enough to show that one defendant is less culpable or that the " spillover effect"from the evidence would be damaging to a defendant. United States v. Wacker, 72 F.3d 1453, 1468 (10th Cir. 1995); Hack, 782 F.2d at 780. Further, the fact that there is a large amount of evidence does not necessarily mean that the evidence is either difficult to understand or not easily separable. Juries historically have been able to distinguish between defendants and segregate the particular facts. See United States v. Braasch, 505 F.2d 139, 149 (7th Cir. 1974), cert. denied, 421 U.S. 910 (1975). Finally, Rule 14 does not compel a severance even when the risk of prejudice is shown. Instead, " leaves the tailoring of relief to be granted, if any, to the district it court' sound discretion." Zafiro, 506 U.S. at 539. Even when the risk of prejudice is s high, " less drastic measures [than severance], such as limiting instructions, often will suffice to cure any risk of prejudice." Id. B. Whether Severance is Warranted in this Case

I find that this is one of the rare cases where severance is warranted. I first note that this is a capital case, with different and more far reaching implications for Defendants than a normal criminal case. While a severance is certainly not mandated in such cases and not even customarily granted, United States v. Catalan-Roman, 376 F. Supp. 2d 96, 100 (D. P.R. 2005), there are special considerations in capital cases that warrant a closer look at whether severance is proper. These include the heightened reliability required in capital cases and the fact that the potential prejudice

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to Defendants from a joint trial may well be far greater than in a typical criminal trial. As one court stated in granting a severance: The standards for severance are necessarily leavened by the fact this is a death penalty case. The threshold for determining what constitutes prejudice and when the jury' ability to render a reliable verdict is compromised is s necessarily lower than in the ordinary case. United States v. Green, 324 F. Supp. 2d 311, 320 (D. Mass. 2004). Other courts have also recognized the special considerations required when deciding severance in capital cases. The Fifth Circuit stated, " While acknowledging that efficiency factors support joint trials even in capital cases, we share Vialva' s concern over the inherent tension between joinder and each defendant' constitutional s entitlement to an individualized capital sentencing decision." United States v. Bernard, 299 F.3d 467, 475 (5th Cir. 2002). " trial court must be especially sensitive to the A existence of such tension in capital cases, which demand a heightened degree of reliability." Id.; see also Catalan-Roman, 376 F. Supp. 2d at 100 (" Special constitutional considerations present in capital cases. . . may require severance in situations that would not ordinarily do so in non-capital criminal cases. . . .[m]ultidefendant capital cases indeed give rise to a range of unfamiliar legal issues some of which favor severance even during the guilt phase." United States v. Rivera, 363 ); F. Supp. 2d 814, 820 (E.D. Va. 2005) (in considering severance, the court noted that " Because death is different in both its severity and its finality, Eighth Amendment jurisprudence requires that a capital case has a heightened need for reliability and requires the strict protection of a defendant' constitutional right to an individualized s

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sentencing decision." United States v. Perez, 299 F. Supp. 2d 38, 42-44 (D. Conn. ); 2004) (granting severance based on evidentiary concerns " given the heightened need for reliability"in a capital case). I find that this case presents a number of issues which, taken together, warrant severance. First is the issue of antagonistic defenses. The Tenth Circuit holds that in order for defenses to be mutually antagonistic, the " defenses must be such that ` the jury, in order to believe the core of one defense, must necessarily disbelieve the core of the other.' United States v. Linn, 31 F.3d 987, 992 (10th Cir. 1994) (quoting United " States v. Swingler, 758 F.2d 477, 495 (10th Cir. 1985)). While the defenses in this case may not be completely antagonistic in nature, I find they are antagonistic enough to create a significant problem if a joint trial were to be held. Defendants are charged with the murder of Joey Estrella, which occurred in a prison cell. The only three occupants of the cell were Estrella and the two Defendants. If the jury finds that a murder occurred, it will have to conclude that one of the Defendants (or both) committed the murder. In other words, this is not a situation where a crime was committed in a manner that third parties other than the defendants may have been involved. As evidenced by the motions to sever and other pleadings filed in this case, each Defendant will likely argue that it was the other that committed the murder. Indeed, a defense by each Defendant will probably be that because he did not commit the murder, the other Defendant had to have committed the murder since no one else could have.

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Thus, if the jury credits one Defendant' version of the facts in the defense, i.e., s that he did not commit the crime, it will necessarily have to disbelieve the other Defendant, thus discrediting his defense. See United States v. Tootick, 952 F.2d 1078, 1081 (9th Cir. 1991) (" Because only Frank and Tootick were present when Hart was attacked, and because there is no suggestion that Hart injured himself, the jury could not acquit Tootick without disbelieving Frank. . . .Each defense theory contradicted the other in such a way that the acquittal of one necessitates the conviction of the other." ). This issue was also addressed in United States v. Green, 324 F. Supp. 2d 311 (D. Mass. 2001). There, the defense maintained that there was only one shooter of a person who was murdered, and the two co-defendants each contended that it was the other. Id. at 324. The court found that " the jury agrees that there is only one [i]f shooter, the defendants' claims are mutually exclusive, and unlike in Zafiro, a zero sum game." Id. Green further found that Joinder, as Justice Stevens noted, in a case involving mutually antagonistic defenses, may operate to reduce the burden on the prosecutor-- by turning a defendant into a second prosecutor. Each side will do everything possible to convict the other defendant, as ` defense counsel are not always held to the limitations and standards imposed on the government prosecutor.' Id. at 325 (quoting Tootick, 952 F.2d at 1082); see also Zafiro, 506 U.S. at 543, Stevens, J. concurring (cases where mutually exclusive defenses are presented " transform a trial into ` more of a contest between the defendants than between the people and the defendants' . . .Under such circumstances, joinder may well be highly . prejudicial. . . ." ).

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I recognize that the Government may argue that there is a third possibility-- that both Defendants committed the murder-- and that the Government will likely pursue this theory at trial. The Government contends, as such, that the defenses are not mutually antagonistic. I note, however, that it is not the Government' position at trial that s determines this issue. See Green, 324 F. Supp. 2d at 325. Instead, " [t]he issue is whether a jury will be able to hear the opposing position-- the defense theory-- and reliably consider all positions." Id. " There is a considerable risk that each defendant, ably throwing pot-shots at the other, would make the government' case for it." Id. s " Specifically, in the din, a juror could well say: `cannot figure out who did [the crime], I given the defendants' mutual accusations, but it doesn' matter. . .[because] [t]hey were t involved somehow and that is enough.' Id. " " That conclusion would redound to the government' benefit." Id. In this case, even if the defenses are not truly mutually s antagonistic, the problems raised in Green and the other authority cited above will be present. I also recognize that severance is not mandated when the co-defendants have conflicting defenses, and that mutually antagonistic defense are not prejudicial per se. Zafiro, 506 U.S. at 538-39. The court has discretion to tailor appropriate relief to cure any risk of prejudice, including limiting instructions. Id. Here, however, I find that a limiting instruction would not cure the prejudice because I find that a joint trial would compromise a specific right of the Defendants in presenting their defense and/or would prevent the jury from making a reliable judgment about guilt or innocence. See id. at 539. -8-

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First, in order to be found not guilty, the Defendants may each have to accuse the other because there were no other persons in the prison cell who could have committed the crime. In that situation, I find that the jury could well be prevented from making a reliable judgment about guilt or innocence for the same reasons articulated in Green. As in that case, there is a considerable risk that the Defendants' attempts to show that the other committed the murder may well result in a situation where the jury cannot figure out who committed the crime and decide that both must be responsible in some way. Green, 324 F. Supp. 2d at 325. Second, I find that a joint trial would compromise a specific right of one or both of the Defendants in presenting their defense. The Supreme Court recognized this risk resulting " when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant." Zafiro, 506 U.S. at 539. That is exactly the situation presented in this case. For example, William Sablan wishes to introduce evidence about Rudy Sablan' s prior assaults to show that he was the one who committed the murder (reverse 404(b) evidence). As stated by the Ninth Circuit, "Fundamental standards of relevancy . . . ` require the admission of testimony which tends to prove that a person other than the defendant committed the crime that is charged.' United States v. Vallejo, 237 F.3d " 1008, 1023 (9th Cir. 2001) (quotation omitted). Such evidence may be admissible to exonerate the defendant or to " negate his guilt of the crime charged against him." United States v. Stevens, 935 F.2d 1380, 1402-04 (3rd Cir. 1991) (quotation omitted); -9-

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see also Agushi v. Duerr, 196 F.3d 754, 760 (7th Cir. 1999); United States v. Blum, 62 F.3d 63, 68 (2d Cir. 1995). In United States v. Kruckel, No. 92-611(JBS), 1993 WL 765648 (D. N.J. 1993), the court found that severance was proper when a defendant sought to introduce reverse 404(b) evidence against a co-defendant. In that case, two defendants were charged with bank fraud. One of the defendants stated an intention to defend himself in part by submitting reverse 404(b) evidence-- evidence of prior bad acts of the codefendants-- to support his claim that he did not commit the crime. Id. at *6. The court found that severance was warranted to protect a specific trial right of the defendants; namely, the right to present a defense. Id. It noted that the defense involving the 404(b) evidence " very likely be tantamount to a ` will second prosecution' of codefendant LiButti. Id. The court further noted that " is reasonably foreseeable that it Mr. Libutti will be unduly prejudiced if he were forced to defend himself before the same jury hearing the charges against, and the defense of, Mr. Kruckel." Id. In so ruling, Kruckel recognized that while the admission of " other crimes" evidence does not normally result in undue prejudice to a defendant, that applies only in the context of " other crimes"evidence the Government seeks to introduce against a defendant. Id. at *7. In that situation, the court can engage in the normal balancing test under Rules 403 and 404. Id. " The court cannot so easily engage in this balancing analysis with respect to the evidence Mr. Kruckel seeks to introduce, however, because a refusal to admit such evidence might seriously hamper defendant Kruckel' ability to establish his stated theory of defense." Id. " s Preventing the -10-

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Government from offering additional proofs against a defendant is one thing." Id. " Hindering a defendant from putting on a defense is another." Id.1 The Government argues, however, that the reverse 404(b) evidence is irrelevant because William Sablan has admitted he was involved in the murder. William Sablan contests this in his reply, asserting that " NO TIME did WiIliam admit to participating at in the MURDER of Joey Estrella" William Sablan' Reply to the Government' . s s Consolidated Resp. to Defs.' Renewed Mots. for Severance at 3. Rather, it is asserted that William Sablan, " demonstrably mentally ill and delusional person, admitted to a varying degrees of involvement in the death (NOT MURDER) of Joey Estrella" Id. . Although I do not know what William Sablan' defense will be at trial, it appears from s William' motion to sever and reply that he will contest his guilt in the murder. This is s obviously consistent with his " guilty"plea. Accordingly, I reject the Government' not s argument to exclude the evidence on this basis. The Government also asserts that such evidence may not be admissible under Rule 404(b). At this stage of the litigation, I cannot determine whether the evidence is admissible or not, but find that severance is still proper. See Kruckel, 1993 WL 765648, at *7 (granting severance even though the reverse 404(b) evidence may ultimately be excluded, and noting that such a determination should not be made at the pretrial stage). Evidence of prior assaults on cellmates by Rudy Sablan, if similar enough in nature to the assault at issue of Joey Estrella, may be relevant to show that

Judge Matsch echoed a similar sentiment in United States v. McVeigh, 169 F.R.D. 362, 367 (D. Colo. 1996), reasoning that, in granting severance, " [t]he court cannot save a joint trial by sacrificing the interests of one defendant to protect the other."

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Rudy likely also committed the crime against Estrella. See Agushi v. Duerr, 196 F.3d 754, 760 (7th Cir. 1999) (in order to prove mistaken identity, the defendant may show that other crimes similar in detail have been committed by some other person). If Defendant William Sablan was deprived of the ability to present this evidence because of a joint trial, his defense would be severely and improperly impacted.2 I also agree with the observation in Kruckel that granting separate trials could actually result in a more efficient trial. As stated therein, " court foresees endless the hours of three-way wrangling at trial over Mr. Kruckel' attempts to introduce the s reverse 404(b) evidence." Kruckel, 1993 WL 765648, at *8.3 Similarly, Judge Matsch noted in granting severance in the McVeigh trial that: There are efficiencies and advantages in single focused trials. The time needed for jury selection is significantly reduced: the number of defense peremptory challenges is halved and only one defense counsel conducts voir dire questioning. It is easier to apply the rules of evidence when there is a trial of one defendant, particularly with regard to the admissibility of statements offered under Rule 801(d)(2); character evidence under Rule 404(a)(1) and proof of motive, opportunity, intent, preparation, plan, knowledge and identity under Rule 404(b). Given these considerations, it is far from certain that the time required for two separate trials would, in total, be substantially greater than the time required for a joint trial. United States v. McVeigh, 169 F.R.D. 362, 370 (D. Colo. 1996).
I further note that the Third Circuit held that because prejudice to the defendant is not a factor, lower standards may govern the admissibility of this evidence as compared to typical 404(b) evidence. United States v. Stevens, 935 F.2d 1380, 1404-05 (3rd Cir. 1991). This would be true, however, only if the trials of the Defendants were severed. Otherwise, the prejudice to Rudy Sablan from admission of this evidence would likely result in its exclusion regardless of its relevance to William Sablan under Rule 404(b).
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Kruckel also held, " Severing the defendants' trials will, at least to a certain extent, obviate the need for the court to hold repeated and prolonged colloquies with counsel concerning whether or not to allow defendant to introduce evidence which is prejudicial to defendant LiButti and which might not have been admissible against Mr. LiButti had he been tried alone." Id., 1993 WL 765648, at *8.

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Finally, I find that limiting instructions could not cure the potential prejudice to Rudy Sablan if this evidence were admitted by William. As noted in Kruckel, " only the way that this problem could be cured would be to impermissibly burden Mr. Kruckel' s ability to put on his defense by per se excluding all reverse 404(b) material." Kruckel, 1993 WL 765648, at *8. The same reasoning applies in this case. William Sablan also wishes to present evidence that Rudy Sablan has made threats against him. On January 17, 2006, I issued an Order granting a motion in limine filed by Rudy Sablan to preclude such evidence. I found that such threats, even though probative, must be excluded due to the danger of unfair prejudice to Rudy Sablan. See Order at 4-5. Thus, a joint trial precludes William Sablan from presenting such evidence in his defense. If the trials are severed, however, WiIliam may be able to admit such evidence if he is able to show a direct connection with the threats, as such threats may be relevant to a showing of consciousness of guilt. Id. at 3-4. Similarly, Rudy Sablan wishes to introduce evidence of William Sablan' mental s health to show that it was William' mental instability that was a cause of the murder of s Joey Estrella. This evidence has not been produced to Rudy Sablan because of privilege and other issues raised by William Sablan. However, William Sablan' s counsel indicated at the hearings on May 15 and 16, 2006, that if the trials were severed, the evidence would most likely be turned over to Rudy Sablan, because William would no longer have to worry that the evidence would be used against him in a joint trial. The Supreme Court has specifically indicated when addressing severance that " defendant might suffer prejudice if essential exculpatory evidence that would be a -13-

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available to a defendant tried alone would not be available in a joint trial." Zafiro, 506 U.S. at 539. I find that the mental health of William Sablan and the evidence relating to the same may constitute that type of exculpatory evidence, which would be available only if the trials are severed.4 The mental health issues related to William Sablan also support my decision to sever in a different way. As pointed out by his counsel at the hearing, the mental health of William Sablan may well be part of his defense in the guilt phase or, at the very least, a mitigating factor to presented at the penalty phase. If the trials are not severed, William Sablan' ability to present this evidence will be curtailed by the fact s that Rudy Sablan could then use the evidence against him to argue that William was more culpable. William Sablan could thus be denied the right to present critical evidence in support of his defense. Another issue that supports my decision to sever are potential issues under Bruton v. United States, 391 U.S. 123 (1968). William Sablan made contradictory statements about Joey Estrella' death where he admitted to varying degrees of s involvement in the death and then stated that he did not kill Estrella and implicated Rudy Sablan. While those statements are obviously admissible against William Sablan because they are his own statements, they are hearsay as to Rudy Sablan. The Supreme Court in Bruton held that the Sixth Amendment Confrontation Clause is

The Government indicates that even if the trials were severed, the privilege applicable to William' mental health records would still be applicable. This argument ignores the fact that William' s s counsel has indicated that if the trials were severed, they would turn over such evidence. Obviously, William Sablan may waive the privilege as to his mental health records if he so chooses.

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violated when a post-arrest statement of one defendant is used in a joint trial to implicate the other co-defendant. Id. at 125-26. If the defendant who made the postarrest statement exercises his or her Fifth Amendment right not to testify, the implicated co-defendant is unable to exercise his or her Sixth Amendment right to cross-examine and confront the inculpatory statements, thus creating the Sixth Amendment problem. See United States v. Glass, 128 F.3d 1398, 1402-03 (10th Cir. 1997). This issue was a ground for severance in the trial of Timothy McVeigh and Terry Nichols. See United States v. McVeigh, 169 F.R.D. 362 (D. Colo. 1996). In that case, Terry Nichols made statements to the FBI that could reasonably be construed as his expression of a belief in McVeigh' guilt. Id. at 367. Judge Matsch found that McVeigh s would be profoundly prejudiced by a joint trial because of these statements, since " [h]is lawyers cannot question Terry Nichols or cross-examine the FBI agents on what they say Terry Nichols said or follow up on any suggestions of inferences of guilt of Timothy McVeigh resulting from it." Id. at 368. He further found that " [t]he unacceptable risk is that any finding of not guilty as to Timothy McVeigh would be undermined by a determination that Terry Nichols confessed his guilty assistance. . . . there is an unacceptable risk that the jury will use Terry Nichols' extrajudicial statements against Timothy McVeigh in derogation of his Sixth Amendment right of confrontation and the fundamental fairness protection of the Due Process Clause in the Fifth Amendment." Id. at 369. The same situation applies in this case.5

Another Bruton problem referenced by William Sablan in his supplement relating to Edward Spry appears to have been resolved because the Government has stated that it does not intend to offer Spry' testimony. s

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The Government argues, however, that the statements can be sufficiently redacted so as not to violate the holdings of Bruton and Gray v. Maryland, 523 U.S. 185 (1998). I disagree, finding that the statements cannot be redacted in a manner that is constitutionally acceptable. See Gray, 523 U.S. at 195-96. Given the nature of the crime where only the Defendants were present in the cell with Joey Estrella when he was murdered, William Sablan' statements suggesting that he did not kill Estrella s would implicate Rudy Sablan whether or not his name is specifically mentioned. See United States v. Verduzco-Martinez, 186 F.3d 1208, 1214 (10th Cir. 1999) (" Where. . . it is obvious from consideration of the confession as a whole that the redacted term was a reference to the defendant, then admission of the confession violates Bruton" ); Kruckel, 1993 WL 765648, at *9 (holding that a Bruton problem could not be cured by eliminating the co-defendant' name from a statement since that defendant " the only s is person to whom Kruckel conceivably could have been referring in the statement . . . . Even if the Government removes any specific mention of [his name], there is a serious danger that the jury will infer that Kruckel was referring to him." Further, any other ). type of redaction of the statement would render it meaningless. The Government also indicates that if William Sablan' statement cannot be s redacted, it may elect in the future not to introduce the statement into evidence. This, of course, does not solve the problem, since there is still a possibility that the Government will seek to admit such statement at the guilt phase, penalty phase, or both. Indeed, to date the Government has not notified the Court of its intention to withdraw use of this statement. -16-

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Even if the Government chooses not to use such statements, there may still be a Crawford issue. The Supreme Court in Crawford v. Washington, 541 U.S. 36, 68 (2004) prohibited the admission into evidence of testimonial out-of-court statements unless the witness is shown to be available and the defendant had an opportunity to cross-examine the witness. In this case, Rudy Sablan may seek to admit the statements in which William Sablan admitted to being involved in the death of Estrella. Indeed, he has filed motions seeking to admit such statements. Alternatively, William Sablan may seek to admit his statement implicating Rudy Sablan. However, there has been no showing that the Defendants will take the stand and be subject to cross examination. Accordingly, Crawford may be implicated. Finally, another important reason why I believe severance is warranted is the prejudice that could result to Defendants from a joint penalty phase. Judge Matsch recognized this prejudice in the McVeigh case and found it was a ground for severance. McVeigh, 169 F.R.D. at 370. As stated in that case: The conflict between the defenses of these men is even more apparent if there is a joint penalty phase hearing. Convictions upon one or more of these charged offenses will generate mutually exclusive defenses of their lives because each defendant will try to portray the other as a more culpable perpetrator of the crime. There may be unavoidable prejudice if the defendants choose to testify against each other or if only one defendant testifies on his own behalf. Any efficiencies achieved in a joint liability trial will then be outweighed by extension of the time necessary for hearing the mitigating evidence presented by each of the defendants. Id. In this case, as in McVeigh, the jury will likely be asked to consider which of the Defendants is more culpable. The Defendants will present evidence on this point, as -17-

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may the Government. This may be a particularly difficult decision for the jury given the circumstances of the murder. If the jury decides that the crime is particularly heinous (an aggravating factor posited by the Government) and finds that Defendants were equally culpable or that it cannot reach an agreement on this issue, it may simply conclude that both Defendants should be sentenced to death, without adequate consideration of the mitigating factors that are unique to each Defendant. Another potential problem is that " aggravating factor for one defendant"may well be a an " mitigating factor for another"if he cannot claim that same attribute. United States v. Green, 324 F. Supp. 2d 311, 325-26 (D. Mass. 2004). Green also noted the possibility of " trial by ambush." Id. at 326. " While the government has to give notice of aggravating factors, a codefendant does not." Green stated that the problems it found with a joint trial " rise above simple fairness and may raise Sixth Amendment confrontation issue and Eighth Amendment concerns about individualized treatment at the punishment phase." Id. There are other concerns also present in connection with a joint penalty phase. As stated by another court: The[] considerations that favor severance [in capital cases] may become more acute in the sentencing phase in light of the constitutionally mandated fact-finding procedures necessary to impose the death penalty with a higher degree of reliability. . . .Much of the information adduced during the penalty phase is. . . beyond contemplation at the guilt phase. In addition, the lack of evidentiary standards and rules regarding parties' reciprocal disclosures often limit the Court' ability to predict conflicts and redress them s appropriately during the penalty phase. The vast spectrum of complex legal issues the jury confronts throughout the sentencing phase also exacerbates the potential conflicts between defendants in a joint proceeding. United States v. Catalan-Roman, 376 F. Supp. 2d 96, 100 (D. P.R. 2005).

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Finally, as noted by Green, the order in which the Government presents the evidence at the penalty phase could prejudice the Defendants. " the second As defendant and his counsel sit on the sidelines, the first will present evidence and make arguments that could drastically alter the context in which the second is judged before the same jury." Green, 324 F. Supp. 2d at 326. Here, for instance, if the Government presented its evidence as to William Sablan first and William Sablan presented his mental health as a mitigating factor, this could well by used by Rudy Sablan to shift blame to William or to argue that he is more deserving of death than Rudy. The Government may argue that any prejudice to the Defendants that occurs from a joint penalty phase can be cured by appropriate limiting instructions to the jury. I disagree. I find that due to the complexity of this case, the defenses to be posited by the Defendants, the mental health of William Sablan and the other issues discussed in this Order, " there is a high risk of incurable prejudice." See Catalan-Roman, 376 F Supp. 2d at 101 (" There are cases. . . in which the combined effect of proper instructions or limited witness examination will not suffice to cure the risk of prejudice to defendant' rights." s ). The Government also argues that any prejudice could be cured by having the jury hear each Defendant' penalty case separately-- to have successive capital s sentencing hearings. I do not view this as a viable solution. As explained by the Fourth Circuit, if the same jury is required to sit through two separate penalty phases, it may be required to hear largely repetitive evidence. United States v. Tipton, 90 F.3d 861, 892 (4th Cir. 1996), cert. denied, 520 U.S. 1253 (1997). This will unreasonably -19-

Case 1:00-cr-00531-WYD

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delay the proceedings and raises issues of efficiency and fairness to the parties and the Court. More importantly, I do not think that separate penalty hearings will cure the prejudice to Defendants. As discussed previously, the order in which the penalty phase occurs could significantly impact the Defendant whose penalty case is presented second. See Green, 324 F. Supp. 2d at 326. III. CONCLUSION Based upon the foregoing, it is ORDERED that the motions to sever (docket # 263, 272, 1775 and 1776) are GRANTED. The trials of Defendants William Sablan and Rudy Sablan are severed. It is FURTHER ORDERED that the parties shall be prepared to discuss at the status conference set for August 8, 2006, the impact of severance on the upcoming hearings and the trial setting with the understanding that it is the Court' intention to complete s the first trial in the four month time period presently allocated for trial. Dated: July 28, 2006 BY THE COURT:

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

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