Free Reply to Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1799

Filed 05/12/2006

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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.

William Sablan's Reply to the Government's Consolidated Response to Defendants' Renewed Motions for Severance

Defendant William Sablan ("William") through undersigned court-appointed counsel, submits the following Reply to the Government's Consolidated Response to Defendants' Renewed Motions for Severance. William's Renewed Motion for Severance is court docket #1775. The Government's Consolidated Response is court docket #1791. 1. While it is true that William's severance motion is addressed to this Court's sound discretion, the government's response confuses the "burden" William may have at this stage of the proceedings with what he would have if his motion was denied, he was convicted, and on appeal he asserted that the court's refusal to grant a severance constituted error such that a new trial was warranted. The government cites United States v. Hollis, 971 F.2d 1441, 1456 (10th Cir. 1992) for the proposition that William "bears[s] a heavy burden of demonstrating prejudice." (Response at 1). Hollis, however, was an appeal from the district court's refusal to order separate trials of counts, not of defendants. Moreover, the Circuit noted that "[t]he burden 1

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on the defendant to show an abuse of discretion in this context [on appeal from a conviction] is a difficult one." Id. The lower court's order was affirmed. Continuing with its theme of "heavy burden", the government cites Zafiro v. United States, 506 U.S. 534, 539 (1993) concerning when "sufficient prejudice is established." (Id.). The Zafiro Court, however, refused to adopt a bright-line rule, specifically as to mutually antagonistic defenses, and instead discussed "risk" of harm. It stated that "a district court should grant a severance 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 prevents the jury from making a reliable judgment about guilt or innocence. Such a risk might occur 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." Id. at 539. Thus, if this Court believes such a risk exists, it may exercise its discretion and grant a severance without fear that such action would warrant a reversal if William is convicted. That appellate courts have been reticent to reverse trial court's discretionary denials of severance does not in any way suggest that joint trials are more fair than separate trials; they are not. 2. Contrary to the government's claim, William has never argued that he has "the right to present any evidence he wishes in his defense." (Response at 2). Instead, he asserts that "reverse 404(b)" evidence is admissible and he is constitutionally entitled to present such evidence because it is relevant and material to his defense. The government's response fails to cite any authority challenging his proposed use of reverse 404(b) evidence. Indeed, in United States v. Montelongo, 420 F.3d 1169 (10th Cir. 2005), the main case on which the government relies, the Tenth Circuit reversed the defendant's conviction on the grounds that the district court violated his Sixth Amendment Confrontation rights by refusing to allow him to cross-examine a 2

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government witness on reverse 404(b) evidence. Moreover, the language quoted from Richmond v. Embry, 122 F.3d 866, 872 (10th Cir. 1997) regarding the defendant's right to present evidence bowing to other legitimate interests related to the rape shield law and is inapplicable here. The "reverse 404(b)" evidence that William may introduce at trial is relevant, material, and comports with the Federal Rules of Evidence. 3. At page 4 of its Consolidated Response, the government states that "He (William) has admitted to participating in the murder of Joey Estrella. See William Sablan's Motion to Sever [Wm DP-13 at 2]."1 The government has terribly misrepresented William's Motion to Sever at 2. William's Motion to Sever actually stated: "William Sablan later made various statements about Estrella's death. In various statements, William admitted killing Estrella, denied killing Estrella, stated that he killed Estrella by choking him to death, stated that he killed Estrella by cutting his throat, stated that someone else killed Estrella, and stated that he (William) eviscerated Estrella. Contrary to the Government's unfounded allegation, at NO TIME did William admit to participating in the MURDER of Joey Estrella. Rather, the truth is, during several conversations William, a demonstrably mentally ill and delusional person, admitted to varying degrees of involvement in the death (NOT MURDER) of Joey Estrella. After misrepresenting both what William himself said and also what defense counsel actually stated in the Motion to Sever, the government argues that, "Nothing about Rudy Sablan's past conduct is relevant to those statements admitting his participation..." The government has therefore linked its opposition to severance to a gross mis-statement of William's comments regarding his responsibility in Joey Estrella's death.
1 William's Motion to Sever is docket number 1775 not Wm DP-13.

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4. At page 6 of its Response the Government shares its observations of tension between William Sablan and Rudy Sablan in the courtroom during earlier hearings. The level of tension will increase dramatically during an actual trial where each defendant attempts to portray himself as less culpable that his co-defendant. Thus, the Government's observations of tension or the lack thereof at earlier proceedings are meaningless 5. The government argues that given William's Notice pursuant to Rule 12.2 , "it is incumbent on William Sablan to demonstrate why Rudy Sablan is not entitled to such discovery." Rudy's counsel have made it abundantly clear that during a joint trial they will act as a second prosecutors in the courtroom. William's counsel cannot ethically provide to Rudy's counsel evidence that may assist in their explicitly stated endeavor. William Sablan need not demonstrate anything more to show that Rudy Sablan's counsel is not entitled to all of William's medical records. 6. Finally, the government's argument regarding individualized sentencing is counterintuitive. The government's argument serves only to confirm that it is not interested in protecting William's Constitutional right to individualized sentencing. Moreover, no details as to the procedure for a joint penalty phase have been provided. (For example, how will two individuals go through a penalty phase together?) In all likelihood, the Court must describe the procedures for a joint penalty phase before the defendant can finalize his argument regarding the prejudice in a joint penalty phase. WHEREFORE, William respectfully submits this Reply to the Government's Consolidated Response to the Defendants' Renewed Motions for Severance. Dated: May 12, 2006 Respectfully submitted, 4

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/s/ Patrick J. Burke Patrick J. Burke Burke & Neuwirth P.C. 1660 Wynkoop Street, Suite 810 Denver, Colorado 80202 303-825-3050 Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, Colorado 80202 303-825-3050 Counsel for William Sablan

Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, Colorado 80202 303-825-2222

CERTIFICATE OF SERVICE I hereby certify that on this 12th day of May, 2006 a true and correct copy of the above, William Sablan's Reply to the Government's Consolidated Response to Defendants' Renewed Motions for Severance was served via U.S. District Court CM/ECFelectronic mail to the following: Brenda Taylor ([email protected]) Phil Brimmer ([email protected]) Assistant U.S. Attorneys 1225 17th Street, Suite 700 Denver, Colorado 80202 303-454-0100 Forrest Lewis ([email protected]) Attorney at Law 1600 Broadway, #1525 Denver, CO 80202 Attorney for Rudy Sablan Donald Knight ([email protected]) Attorney at Law 7852 S. Elati St., #201 Littleton, CO 80120 Attorney for Rudy Sablan

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