Free Motion to Sever Defendant - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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Filed 04/24/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-CR-0531-D UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN RUDY CABRERA SABLAN, Defendants. __________________________________________________________________ WILLIAM SABLAN'S RENEWED MOTION FOR SEVERANCE __________________________________________________________________ Defendant William Sablan, through undersigned court-appointed counsel, respectfully moves pursuant to Fed.R.Crim.P. 14 to sever his case from that of codefendant Rudy Sablan. In support of this request, counsel state: Both William Sablan and Rudy Sablan have previously filed motions requesting that their cases be severed. The Court deferred ruling on the previously filed requests for severance until legal issues in the case were more fully developed. At a Status Hearing on April 11, 2006, the Court ordered the parties to file updated motions clarifying their respective positions regarding severance. In ordering updated motions the Court correctly observed that in light of changed
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circumstances arguments previously asserted as grounds for severance may be no longer applicable. William Sablan has previously filed three motions requesting severance. The previously filed motions are: Defendant William Sablan's Motion to Sever (Filed Under Seal) (Docket # 263); Defendant William Sablan's Supplement to Previously-Filed Motion to Sever (Docket # 359); and William Sablan's Motion to Disqualify CoDefendant Rudy Sablan's Counsel or to Sever William and Rudy Sablan's Trial (Filed Under Seal) (Docket # 1300). In these motions William asserted multiple grounds for severance which can be summarized as follows: 1. In his original Motion to Sever (# 263) William Sablan gave notice

that he may offer evidence of Rudy Sablan's history of assaultive behavior within Bureau of Prison facilities. Prior instances of Rudy engaging in violent assaults against fellow inmates is admissible as "reverse 404(b) evidence". Further, if William offered such evidence the admission of such evidence would be mandated to protect William's constitutional right to present a defense. In this case, William's right to present a complete defense conflicts with Rudy's right to be tried solely for the acts charged in the Indictment.
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William renews his request for severance based on his right to offer evidence of Rudy's involvement in prior and similar incidents of assaultive behavior. William relies on the arguments and authorities submitted to the Court at pages 1-10 of his Motion to Sever (#263). 2. Severance is necessary to avoid prejudice to William and Rudy at any

penalty phase hearing. At the guilt-innocence phase of the trial and again at any sentencing hearing, should such a hearing be necessary, William and Rudy may assert mutually exclusive defenses. Both William and Rudy will likely attempt to portray the other as more culpable in the death of Joey Estrella. Where both defendants are simultaneously trying to make their co-defendant appear more culpable there will be unavoidable prejudice. William renews his request for severance based on the unavoidable prejudice that will occur at a joint trial and/or sentencing hearing. William relies on the arguments and authorities submitted to the Court at pages 10-11 of his Motion to Sever, (#263). In addition to the arguments advanced in his original Motion to Sever (#263), severance for any sentencing hearing is necessary to protect William Sablan's Constitutional right to individualized consideration in imposing a death sentence. Severance for a sentencing hearing presents issues and considerations
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separate and distinct from those which inform any decision regarding severance at the guilt/innocence stage. Courts must be particularly vigilant in applying severance rules in capital cases because death is "profoundly different from all other penalties." Lockett v. Ohio, 438 U.S. 586, 605 (1978). Because of the qualitative difference between death and other penalties, see Woodson v. North Carolina, 428 U.S. 280, 305 (1976), the Supreme Court has demanded "a greater degree of reliability when the death sentence is imposed." Lockett, 438 U.S. at 604. This insistence on heightened reliability in the capital context "underscores the need for individualized consideration as a constitutional requirement in imposing the death sentence." Id. at 605. At a very minimum "severance motions in capital cases should receive heightened scrutiny for potential prejudice." People v. Keenan, 46 Cal. 3d at 508. A joint sentencing hearing will compromise the constitutionally mandated requirement of "individualized consideration" in death sentencing decisions. "[T]he fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Woodson, 428 U.S. at 304. At a joint sentencing hearing individualized consideration of William and Rudy Sablan
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will be compromised. The problems presented by the use of a joint sentencing hearing are exacerbated by the explicit statutory requirement of 21 U.S.C. § 848(m)(8) that the jury consider as a mitigating factor whether "[a]nother defendant, equally culpable in the crime, will not be punished by death." The evident purpose of the §848(m)(8) mitigating factor is to allow the jury to guarantee a measure of fairness and consistency in the sentences imposed for crimes committed by more than one defendant. See Richardson v. Marsh, 481 U.S. 200, 210 (1987) (noting the "scandal and inequity" that result from inconsistent verdicts). In practice, however, the §848(m)(8) factor invites the jury to resolve the difficult factual and moral questions posed by "equal culpability" by simply sentencing all defendants to death. See Bronson, Severance of Co-Defendants in Capital Cases: Some Empirical Evidence in Discussion Paper Series, No. 94-1, 13 (College of Behavioral and Social Sciences, Cal. St. Univ., Chico, 1994) [attached hereto as Exhibit A]. Once the jury has decided that a particular crime was so heinous as to warrant the death penalty, the jury may simply conclude that all defendants who played an equal role in the crime should be sentenced to death, despite the existence of mitigating factors arising from the character, disabilities and backgrounds of individual co-defendants. Any death sentence thus imposed would
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obviously not reflect that "'reasoned moral response to the defendant's background [and] character'" which the Eighth Amendment requires. Penry v, Lynaugh, 109 S. Ct. 2934, 2947 (1989) (quoting California v. Brown, 479 U.S. 538, 545 (1987) (O'Connor, J., concurring)). In this manner, the §848(m)(8) mitigating factor may actually have the perverse and unintended effect of increasing the circumstances in which juries sentence defendants to death in multiple-defendant capital trials.1 3. The trials of William and Rudy should be severed because of death

threats that Rudy Sablan has made against William. William 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 Marshall's holding facility with a person who has threatened to kill him. William acknowledges that threats made by Rudy against William are not sufficient standing alone to require a severance. The threats are however a relevant consideration that counsel against a joint trial. William renews his request for severance based the fact that Rudy has threatened to have him killed. William relies on the arguments and authorities submitted to the Court at pages 11-12 of his Motion to Sever (#263).

1 In the Bronson study, a controlled experiment involving a representative cross-

section of 265 jury-eligible respondents, data considered "highly statistically significant" revealed that "defendants are likely to receive death verdicts roughly four times as often . . . in joint trials as in severed ones." Bronson, supra, at 11-12.
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Further, in its Order of January 17, 2006, the Court acknowledged 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 `if a direct connection is established between the threat and the defendant.'" The Court ruled, however, that the evidence of threats should be excluded because the probative value of such evidence in support of the government's case against Rudy Sablan was substantially outweighed by the danger of unfair prejudice. The Court correctly observed that "evidence of threats by Rudy Sablan against William Sablan could influence the jury into thinking that Rudy is capable of murder." William Sablan's right to present exculpatory evidence however, cannot be impinged or limited to protect Rudy. William is entitled to a fair trial and that right includes the right to present evidence that shows his co-defendant's consciousness of guilty and that tends to show that his co-defendant is more culpable that he. There can be no question, in light of the government's attempt to introduce evidence of threats in it's case against Rudy and in light of the Court's ruling regarding the proffered evidence, that the threats by Rudy against William would be admissible in a separate trial. A joint trial will compromise a specific trial right of William Sablan and therefore severance is mandated.
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4.

In his Supplement to Previously-Filed Motion to Sever (#359),

William Sablan requested severance pursuant to Bruton v. United States, 391 U.S. 123 (1968) and it's progeny. Specifically, the government informed this Court that it intended to introduce evidence that Rudy Sablan had made statements implicating both himself and William in the death of Joey Estrella. The government proposed to offer this evidence through the testimony of a BOP inmate named Edward Spry. As this Court is aware, after forcing the withdrawal of William Sablan's lead counsel because of that attorney's relationship with Mr. Spry and after causing a lengthy delay in this case, the government decided to not use Edward Spry as a witness. Because the government has decided to not call Edward Spry as a witness the problematic statements made by Rudy Sablan will not be introduced into evidence. Therefore, William's motion for severance based on Bruton issues is moot. 5. Because the government improperly disclosed sealed and/or protected

documents to Rudy's counsel, William moved that Rudy's counsel be disqualified, or alternatively, that William's and Rudy's trials be severed and that the government proceed against Rudy first. See William Sablan's Motion to Disqualify Co-Defendant Rudy Sablan's Counsel or to Sever William and Rudy Sablan's
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Trial (#1300). The documents that were wrongfully disclosed to Rudy's counsel contained sensitive and privileged information regarding William's mental health. A hearing on this motion was held in December of 2005. The Court has not yet ruled on this motion although the Court made clear during the hearing it did not intend to grant William's motion insofar as it requested disqualification of Rudy's counsel. William reasserts the arguments made in his Motion to Disqualify (#1300), his Reply to the Government's Response to the Motion to Disqualify (#1411), his Reply to Rudy Sablan's Motion to Disqualify (#1413) and his Supplement to Motion to Disqualify Rudy Sablan's Counsel or to Sever William and Rudy Sablan's Trial (Filed Under Seal). In short, the government's improper disclosure of mental health information to Rudy Sablan's counsel make it utterly impossible for William to receive a fair trial if he is forced to go to trial jointly with Rudy. It is only fair to acknowledge that motions are currently pending before this Court regarding the extent to which Rudy Sablan is entitled to receive William Sablan's mental health record. The resolution of these motions will directly impact the prejudice to William caused by the improper disclosures and therefore impact the Court's ruling on William's Motion to Disqualify or to Sever. In sum, with the exception of his Supplement to Previously-Filed Motion to
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Sever (#359), William Sablan renews all previously made grounds and arguments for severance. To protect William Sablan's right to a fair trial, his right to present a complete defense, and his right to an individualized sentencing decision, severance of the cases of William Sablan and Rudy Sablan should be granted. Dated: April 24, 2006 Respectfully Submitted, /s/ Nathan Chambers Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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

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CERTIFICATE OF SERVICE I hereby certify that on the 24th day of April, 2006, I electronically filed the foregoing Motion 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]

/s/ Nathan Chambers

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