Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, and 2. RUDY CABRERA SABLAN, Defendants.

GOVERNMENT'S CONSOLIDATED RESPONSE TO DEFENDANTS' RENEWED MOTIONS FOR SEVERANCE

The United States of America, by William J. Leone, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, responds as follows to William Sablan's Renewed Motion for Severance and the Updated Motion for Severance by Defendant Rudy Sablan [R-57]. Severance is a matter of discretion, not of right. The defendants bear a heavy burden of demonstrating prejudice. United States v. Hollis, 971 F.2d 1441, 1456 (10 th Cir. 1992). Sufficient prejudice is established "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." Zafiro v. United States, 506 U.S. 534, 539 (1993). The defendants here have failed to show any prejudice.

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A. Procedural Background As noted in William Sablan's Renewed Motion for Severance, he has previously filed a number of motions related to severance. On August 17, 2001, he filed Defendant William Sablan's Motion to Sever [Filed Under Seal] [Wm DP-13]. On October 24, 2001, he filed Defendant William Sablan's Supplement to Previously-Filed Motion to Sever. And on February 22, 2005, he filed William Sablan's Motion to Disqualify CoDefendant Rudy Sablan's Counsel or To Sever William and Rudy Sablan's Trial (Filed Under Seal). Rudy Sablan also filed an earlier motion for severance. On August 17, 2001, he filed his Motion for Severance of Counts and Separate Trial [R-24]. The United States incorporates by reference its responses to the above-mentioned motions. [See Docket #s 300, 1348] B. "Reverse" Rule 404(b) Evidence William Sablan argues that he has a "right" to present "reverse 404(b)" evidence of Rudy Sablan's prior assaultive behavior. This claim offers no basis on which to sever the trial of the Sablans. First, William Sablan does not have the right to present any evidence he wishes in his defense. Even though he claims that he has a "constitutional right to present a defense" and a "right to present a complete defense," William Sablan's Renewed Motion for Severance at 2, the Tenth Circuit has noted that:

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[I]n presenting evidence the defendant must `comply with established rules of evidence and procedure ... to assure both fairness and reliability in the ascertainment of guilt and innocence.' United States v. Montelongo, 420 F.3d 1169, 1173 (10 th Cir. 2005), quoting United States v. Solomon, 399 F.3d 1231, 1239 (10 th Cir. 2005). As noted in Solomon, "a criminal defendant does not have a constitutional right to present evidence that is not relevant and not material to his defense." Id. Moreover, even if the defendant's evidence is relevant, "the defendant's right to present relevant testimony may `bow to accommodate other legitimate interests in the criminal trial process.'" Montelongo, 420 F.3d at 1174, quoting Richmond v. Embry, 122 F.3d 866, 872 (10 th Cir. 1997). Thus, in order to determine whether the defendants' trial should be severed based on William Sablan's presentation of "reverse 404(b)" evidence, a necessary first step is to decide whether the evidence is admissible under Rules 403 and 404(b). Second, the Court should require William Sablan to make a detailed proffer of its evidence of Rudy Sablan's assaultive behavior so that the Court can balance "the evidence's probative value against considerations such as undue waste of time and confusion of the issues." Montelongo, 420 F.3d at 1174, quoting United States v. Stevens, 935 F.3d 1380, 1404-05 (3 rd Cir. 1991). Such a proffer is also needed in order to determine whether William Sablan is merely attempting to "prove the character of a person in order to show action in conformity therewith," Fed. R. Evid. 404(b), which is not permitted. In his original motion to sever, William Sablan identified two incidents

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involving assaults by Rudy Sablan on other inmates. The Court needs to determine whether these are the only incidents that William Sablan intends to offer evidence of and what facts William Sablan believes are relevant to his case. Third, William Sablan has failed to explain how evidence of Rudy Sablan's past assaultive behavior, if admitted, would be exculpatory. He has admitted to having participated in the murder of Joey Estrella. See William Sablan's Motion to Sever [Wm DP-13] at 2. Nothing about Rudy Sablan's past conduct is relevant to those statements admitting his participation. As a result, evidence of Rudy Sablan's assaultive behavior, even if believed, would not absolve William Sablan of having participated in the murder and therefore of liability under 18 U.S.C. §§ 1111 and 2. Moreover, he is now claiming as a defense, not that Rudy Sablan committed the homicide, but that a mental disease or defect prevented him from forming the requisite mental state to be found guilty. Past assaultive conduct by Rudy Sablan is not relevant to William Sablan's Rule 12.2 defense. Merely asserting the intention of using "reverse 404(b)" evidence is not sufficient to cause severance. C. Antagonistic Defenses In the 4 ½ years since the defendants first filed their severance motions, they have still not identified how their defenses are antagonistic. William Sablan's Renewed Motion for Severance simply states that "[b]oth William and Rudy will likely attempt to portray the other as more culpable...." William Sablan's Renewed Motion for Severance

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at 3. Rudy Sablan did not mention his intention of using an antagonistic defense in his original motion to sever and does not mention the subject in his Updated Motion for Severance [R-57]. The United States will not repeat the arguments and cases cited in its consolidated response to defendant's original severance motions, [Docket # 300], except to emphasize the following: Finger-pointing between defendants is not sufficient to justify severance. United States v. Dirden, 38 F.3d 1131, 1141 (10 th Cir. 1994). Moreover, as the 10 th Circuit noted "[t]he defenses truly must be mutually exclusive, such that the jury could not believe the core of one defense without discounting entirely the core of the other." Id., citing United States v. Linn, 31 F.3d 987, 992 (10 th Cir.1994). The only thing that either defendant has argued is that they "may" point fingers at one another. That type of vague assertion will not support severance. See United States v. Taylor, 293 F. Supp. 2d 884, 892 (N.D. Ind. 2003) (denying guilt phase severance where defendants failed to meet their burdens of showing that the jury's acceptance of one of their defenses precluded the possibility of acquittal of the other). D. Rudy Sablan's Threats Against William Sablan William Sablan maintains that Rudy Sablan's threats against him constitute a current basis for severing the trial. He makes two arguments. First, he argues that he "cannot possibly receive a fair trial or assist his attorneys in his defense if he is forced to share the courtroom and a space in the United States Marshal's holding facility with a

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person who has threatened to kill him." William Sablan's Renewed Motion for Severance at 6. Second, he argues that he has a right to present evidence of such threats to show Rudy Sablan's consciousness of guilt. William Sablan's Renewed Motion for Severance at 7. 1. Security Concerns There are a number of problems with William Sablan's argument that security concerns about Rudy Sablan weigh in favor of a severance of trial. First, as pointed out in the government's consolidated response to William Sablan's original severance motion, the government has no objection to the Court putting in place whatever security procedures are needed to protect William Sablan's safety in the courtroom and holding area. It should be noted William Sablan does not suggest that it is impossible to provide him with adequate security during the trial. In other words, he does not suggest that the security issue cannot be solved short of severing the trial. Second, the government has not observed over the last several years any apparent tension or fear on William Sablan's part when sitting across from Rudy Sablan in the courtroom. William Sablan does not specifically identify why Rudy Sablan's death threats from 2000 prevent William Sablan from receiving a fair trial or assisting in his own defense, but if fear and apprehension are factors they are not apparent in the courtroom. Moreover, the death threats have not been the subject of any motions by William Sablan in regard to the many lengthy hearings that have taken place since 2001,

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suggesting that the security procedures were adequate to insure that the hearings were fair and William Sablan was able to assist counsel. William Sablan offers no reason to believe that a trial would be any different. 2. Consciousness of Guilt William Sablan argues that he has the right to present evidence of Rudy Sablan's death threats against him in order to show Rudy Sablan's consciousness of guilt and that Rudy Sablan is "more culpable" than he. William Sablan's Renewed Motion for Severance at 7. He cites to the Court's January 17, 2006 Order granting Rudy Sablan's motion in limine to exclude the government's ability to introduce such death threats. Despite the fact that the Court's January 17, 2006 Order was limited to the government's ability to introduce evidence of Rudy Sablan's death threats, William Sablan has no absolute right to present this evidence. First, he must show that the death threats are relevant to his defense under Rule 402. The Vought interview memo, which he attaches to his original motion to sever, states that "Rudy said that William was trying to switch it and put the case off on him." In other words, Rudy Sablan was upset because William Sablan was blaming Rudy Sablan for the homicide instead of taking responsibility for it himself. William Sablan does not explain why that statement reflects Rudy Sablan's consciousness of guilt or, more importantly, why it tends to make William Sablan less culpable as opposed to more culpable. Second, in light of William Sablan's numerous statements admitting to involvement in the homicide, he must show how Rudy

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Sablan's threats could be exculpatory in the guilt phase as opposed to evidence that is merely confusing or misleading within the meaning of Rule 403. E. Bruton Issues In his Renewed Motion for Severance, William Sablan correctly notes that his "motion for severance based on Bruton issues is moot." William Sablan's Renewed Motion for Severance at 8. That is because the government no longer intends to call Edward Spry as a witness. Rudy Sablan raised the issue of Bruton v. United States, 391 U.S. 123 (1968), in his original motion to sever and in his Updated Motion for Severance at page 3. However, the only statement that he identifies is a statement whereby William Sablan implicates Rudy Sablan. Rudy Sablan's Updated Motion for Severance at 3. As stated in the government's original response at page 6, the government believes that William's statements can be redacted so as not to violate Bruton. If not, the government may elect not to use them in a joint trial. F. Rudy Sablan's Access to William Sablan's Mental Health Records Both defendants make arguments for severance based on William Sablan's mental health records. William Sablan bases his severance argument on the grounds that "the government's improper disclosure of mental health information to Rudy Sablan's counsel make [sic] it utterly impossible for William to receive a fair trial if he is forced to go to

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trial jointly with Rudy." William Sablan's Renewed Motion for Severance at 9. However, William Sablan acknowledges that Rudy Sablan has filed motions for access to William Sablan's mental health records and that "resolution of these motions will directly impact the prejudice to William caused by the improper disclosures...." Id. Remarkably, William Sablan does not mention that he has filed a notice under Rule 12.2 of his intention to present expert testimony of a mental disease, defect, or condition bearing on the issue of guilt and punishment. Given such notice, it is incumbent on William Sablan to demonstrate why Rudy Sablan is not entitled to such discovery. William Sablan has the burden to show how he would be prejudiced by Rudy Sablan's possession of mental health records, thereby justifying severance. Since William Sablan is the person putting the issue of his mental state at issue, it is hard to imagine how he would be prejudiced by Rudy Sablan's discovery of such records. Rudy Sablan claims that he has a right to discovery of William Sablan's mental health records and notes that he had filed two motions on that subject, R-18 and R-47. Rudy Sablan's Updated Motion for Severance at 2. However, he fails to explain why the fact that he does not currently have access to such discovery merits severance. He simply states that "this presents a conflict of basic rights of the co-defendants which may require a severance," id. at 3, without identifying what "basic rights of co-defendants" he is talking about. Rudy Sablan has the burden of showing prejudice from joinder. The issue of Rudy Sablan's access to William Sablan's mental health records is unrelated to

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whether or not the defendants are joined for trial. G. Individualized Sentencing at Penalty Phase Both defendants claim that they have a right to an individualized sentencing hearing. William Sablan's Renewed Motion for Severance at 3-6; Rudy Sablan's Updated Motion for Severance at 3. The fact that this case is a capital case does not entitle the defendants to severance in the penalty phase. "[D]efendants charged with capital murder under federal statutes have been tried jointly in both the guilt and the penalty phases of the trial." United States v. Bernard, 299 F.3d 467, 475 (5 th Cir. 2002). See also United States v. Causey, 185 F.3d 407 (5 th Cir. 1999); United States v. Tipton, 90 F.3d 861, 100-01 (4 th Cir. 1996). "[T]he current weight of authority is against severance of multiple defendants' trials at the penalty phase." United States v. Catalan-Roman, 354 F. Supp. 2d 104, 105 (D. P.R. 2005). Neither defendant has provided any adequate basis to sever the penalty phase in this case. The Court can, and undoubtedly will, inform the jury that it must give individualized consideration to each defendant. The use of such instructions will cure any prejudice that could occur. See United States v. Rivera, 363 F. Supp. 2d 814, 824 (E.D. Va. 2005) ("appropriate jury instructions emphasizing the importance of the constitutional rights of a defendant to individualized sentencing will effectively safeguard the defendant's rights to an individualized assessment during the joint penalty phase");

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United States v. Taylor, 293 F. Supp. 2d 884, 889 (N.D. Ind. 2003) (limiting instructions will enable individualized consideration at penalty phase). A capital jury is presumed, at both the guilt and penalty phases, to understand and to follow the court's instructions. Tipton, 90 F.3d at 893, citing Richardson v. Marsh, 481 U.S. 200, 206 (1987). A joint penalty phase hearing would also promote fairness because it may allow the jury "to arrive more reliably at its conclusions regarding the guilt or innocence of a particular defendant and to assign fairly the respective responsibilities of each defendant in the sentencing." Buchanan v. Kentucky, 483 U.S. 402, 418 (1987). At any penalty hearing, both defendants will probably attempt to minimize their involvement by blaming the other. Severance will not preclude that. It will simply mean that the other defendant is not present to defend himself. Thus, in the event that severance is granted, the penalty phase jury will be exposed to certain information about the defendant who is not currently the subject of the penalty phase hearing. Given that the jury will be presented with certain evidence about both defendants whether the penalty phase is severed or not, it promotes reliability without increasing prejudice to conduct the penalty phase hearing jointly. William Sablan cites to, and attaches as Exhibit A to his Renewed Motion for Severance, a paper by Edward J. Bronson entitled "Severance of Co-Defendants in Capital Cases: Some Empirical Evidence." It is not clear whether this "discussion paper" was ever published, much less peer-reviewed. The empirical data that the author gathered

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on joinder in capital cases, id. at pp. 9-17, did not come from actual juries or even mock juries, but rather from questionnaires administered to a group of college students from Chico State University and a group of residents from "Butte County." Id. at 9. To the government's knowledge, the only case that cited the discussion paper denied severance of the penalty phase. See United States v. Rivera, 363 F. Supp. 2d at 817 n.1. The Court should similarly give the paper little weight. H. Conclusion The Supreme Court has noted the "vital role" that joint trials play in the criminal justice system. Zafiro v. United States, 506 U.S. 534, 537 (1993). This Court can preserve that vital role, achieve judicial economy, and still protect the defendants' rights to a fair and individualized trial and penalty phase hearing. The defendants' motions for severance should be denied.

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Respectfully submitted this 5th day of May, 2006.

WILLIAM J. LEONE United States Attorney

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0403 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 5th day of May, 2006, I electronically filed the foregoing GOVERNMENT'S CONSOLIDATED RESPONSE TO DEFENDANTS' RENEWED MOTIONS FOR SEVERANCE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected]

Attorneys for Rudy Sablan Donald R. Knight [email protected] Forrest W. Lewis [email protected]

Dean Steven Neuwirth [email protected]

s/ Janet D. Zinser JANET D. ZINSER Supervisory Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0327 Fax (303) 454-0403 E-mail address [email protected]

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