Free Transcript - 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

3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 vs. 6 RUDY CABRERA SABLAN, 7 Defendants. 8 _______________________________________________________________ 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Proceedings before the HONORABLE WILEY Y. DANIEL, Judge, United States District Court for the District of Colorado, commencing at 12:45 p.m., on the 20th day of May, 2008, in Courtroom A1002, Alfred A. Arraj United States Courthouse, Denver, Colorado. APPEARANCES BRENDA TAYLOR and PHILIP BRIMMER, Assistant United States Attorneys, 1225 17th Street, Suite 700, Denver, CO 80202, for plaintiff. FORREST LEWIS, 1600 Broadway, Suite 1525, Denver, CO 80202; DONALD KNIGHT, Knight & Moses, LLC, 7852 South Elati Street, Suite 201, Littleton, CO 80120, for defendant. REPORTER'S TRANSCRIPT Trial to Jury, Day 34 _______________________________________________________________

Proceeding Recorded by Mechanical Stenography, Transcription Produced via Computer by Kara Spitler, RMR, CRR, 901 19th Street, Denver, CO, 80294, (303) 623-3080

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PROCEEDINGS (In open court at 12:45 p.m.) THE COURT: You may be seated.

As you know, the jury has reached a verdict, and the only thing I want to indicate is what I said yesterday: The

Court does not want any reaction to the verdict, whatever it might be. Mr. Keech, let's bring the jury in. (Jury in at 12:47 p.m.) THE COURT: All right. You may be seated.

Mr. Barron, has the jury reached a verdict? JURY FOREMAN: THE COURT: Yes, sir.

Would you give the special-findings form

to the court security officer, who in turn will give it to me. All right. Let me read this. This is a long special-findings

form, but I'm going to read its contents just so the record is clear. Case no. 00-CR-531, United States of America, plaintiff, vs. Rudy Cabrera Sablan, defendant. Special-findings form. Roman numeral one. Facts regarding the defendant's

eligibility for a death sentence. 1A. Defendant's age at time of offense.

Do you unanimously find that the government proved

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beyond a reasonable doubt that Rudy Sablan was at least 18 years of age at the time he committed the offense for which sentence is to be imposed. And the jurors answered "yes." explain. written. And let me just

Beside the check beside "yes," the number 12 is And beside the word "no," the number zero is written.

So what this means to the Court is the answer is 12 to zero meaning that the jury unanimously found that Rudy Sablan is at least age years of age at the time he committed the offense for which the sentence is to be imposed. Since the answer is "yes" there, the jurors proceeded to section 1B of the special-findings form. Special 1B is entitled, Defendant's intent in commission of crime. For each type of intent, specify below

answer, quote, yes, unquote, or quote, no, unquote, according to whether you unanimously find that the government proved beyond a reasonable doubt that Rudy Sablan acted with the specific intent. B1. The defendant intentionally killed the victim. Five answered "yes."

And let me read what's here. Two answered "no."

And then the words beside those two numbers

are as follows: five undecided. 1B2. The defendant intentionally inflicted serious

bodily injury that resulted in the victim's death. In response to that question, eleven answered "yes"

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and one answered "no." 1B3. The defendant intentionally participated in an

act contemplating that a person's life would be taken or intending that lethal force would be used in connection with a person other than one of the participants in the offense and the victim died as a result of the act. Twelve answered "yes" and zero answered "no." 1B4 of the special-findings form. The defendant

intentionally and specifically engaged in an act of violence knowing that the act created a grave risk of death to a person other than one of the participants in the offense such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act. Eleven answered "yes" and one answered "no." And since there were yes answers to these questions I just read in 1B, then the jury was directed to proceed to 1C which is entitled, Statutory aggravating factors. The government has alleged the following statutory aggravating factor is present in this case. Answer, quote,

yes, unquote, or, quote, no, unquote, according to whether you unanimously find that the government proved the existence of a factor beyond a reasonable doubt. 1C1. Rudy Sablan committed the offense in an

especially heinous or depraved manner in that it involved serious physical abuse to the victim.

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Twelve answered "yes" and zero answered "no." And since they answered "yes" to that statutory aggravating factor, they were ordered to proceed, which they did, to answer questions under Roman numeral two of the special-findings form. Now, Roman numeral two is entitled, Findings regarding selection of a sentence. 2A reads, Nonstatutory aggravating factor. The

government has alleged that the following nonstatutory aggravating factor is present in this case. Answer, quote,

yes, unquote, or quote, no, unquote, according to whether you unanimously find that the government proved the existence of the factor beyond a reasonable doubt. 2A1 reads, Future dangerousness of the defendant. Rudy Sablan is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others. Six answered "yes," five

answered "no" and one was undecided. Then it says in the special-findings form, Regardless of your findings on the nonstatutory factor, you must proceed to the next section, 2B of this form. And 2B is entitled,

Mitigating factors, and there are 23 of these mitigating factors and I will read the prefatory language and read the factor and read what the findings were. Rudy Sablan has alleged the following mitigating

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factors are present in this case.

For each of these factors

indicate in the space provided the number of juror or jurors who have found the existence of that factor by a preponderance of the evidence. 1. William Sablan, equally culpable in the crime,

will not be punished by death. Number of jurors who so find, and the number indicated is seven. No. 2. Rudy Sablan is punishable as a principal in

the killing of Mr. Estrella, but Rudy played a lesser role than William Sablan in the killing of Mr. Estrella. Number of jurors who so find, and the number is zero. No. 3. Rudy Sablan is punishable as a principal in

the killing of Mr. Estrella, but Rudy's participation was relatively minor regardless of whether the participation was so minor as to constitute a defense. Number of jurors who so find, and the answer is zero. No. 4. The killing of Mr. Estrella was a result of an

altercation between Joey Estrella and William Sablan. Number of jurors who so find, and the number indicated is the number one. No. 5. Rudy Sablan was not a participant in the

initial confrontation between Joey Estrella and William Sablan. Number of jurors who so find, and the number is one. No. 6, Rudy Sablan intervened and broke up the fight

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between Joey Estrella and William Sablan at least twice. Number of jurors who so find, and the number is six. No. 7. The escalation of the fight between Joey

Estrella and William Sablan was caused at least in part by William Sablan's mental condition. Number of jurors who so find, and the number indicated here is zero. No. 8. The escalation of the fight between Joey

Estrella and William Sablan was caused at least in part by the fact that Mr. Estrella was intoxicated and that he was a very aggressive person when drinking. Number of jurors who so find, and the number indicated is one. No. 9. Upon William Sablan's arrival at the United

States penitentiary slash Florence, the Bureau of Prisons, paren, BOP, close paren, placed him in cell 124 of the special housing unit along with Rudy Sablan and Joey Estrella despite the fact that the cell was designed to house only two people. Number of jurors who so find, and the number indicated is one. No. 10. Joey Estrella and Rudy Sablan had been

cellmates for a long period of time without any notable problems until William Sablan was put in the cell. Number of jurors who so find, and the number indicated is one.

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No. 11.

The circumstances that led to Joey Estrella's

death existed at least in part because of failure or failures by BOP officials to properly do their jobs or jobs by allowing alcohol and weapons in the cell. Number of jurors who so find. indicated is number two. No. 12. Rudy Sablan was cooperative in his removal Furthermore, Rudy And the number

from the cell after Joey Estrella's death.

Sablan encouraged William Sablan to cooperate with correctional officers during their removal from the cell. Number of jurors who so find, and the number is zero. No. 13. Rudy Sablan attained only an eighth-grade

level of education initially but then pursued and attained a GED, paren, general education development, close paren, certificate, the equivalent of a high school diploma, while incarcerated during his young adulthood. Number of jurors who so find, and the number indicated is the number ten. No. 14. Rudy Sablan was raise in an abusive family

and he suffered physical and emotional abuse at the hands of his father. Number of jurors who so find, and the number is zero. No. 15. Rudy Sablan is a concerned and loving father

who is trying to be a positive influence on his 14-year-old son.

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Number of jurors who so find, and the number is five. No. 16. Rudy Sablan has a close and loving

relationship with other family members and maintains contact with them. Number of jurors who so find, and the number indicated is three. No. 17. Because of Rudy Sablan's ongoing relationship

with his son, Irvin Saralu, the execution of Rudy Sablan will cause emotional trauma to his son and have a negative impact upon Irvin's life. The number of jurors who so find, and the number indicated is seven. No. 18. Rudy Sablan is a talented artist and

continues to rehabilitate himself through his artwork. Number of jurors who so find, and the number is three. No. 19. Rudy Sablan has used his creative talents in

a way that is beneficial to others and shows his love and concern for them. Number of jurors who so find, and the number indicated

No. 20.

Rudy Sablan convinced another inmate,

Clifford Black, to abandon his intent to assault a prison guard at USP Atlanta. And the number is zero. No. 21. Rudy Sablan showed concern for the family

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relationship of his cellmate Jimmy Kelly by taking the blame for a weapon which belonged to Mr. Kelly so his family visit would not be taken away. Number of jurors who so find, and the number is zero. No. 22. Rudy Sablan attempted to break up a fight

between inmates Jimmy Couch and Paul Hennings at USP Florence in 1999. Number of jurors who so find, and the number is zero. No. 23. If not sentenced to death, Rudy Sablan will

be sentenced to a term of life in prison without any possibility of release. Number of jurors who so find. Now, let me continue on. Seven.

We're on page 8 now of the

special-findings form and we're still under . . . section 2 entitled, Findings regarding selection of a sentence. All right. Did one or more jurors find that the evidence established some other factors in the defendant's background, record, or character that mitigate or mitigates against the imposition of the death sentence. "yes." If you answered "yes," list the additional mitigation information you found to be present and the number of jurors who so find in the space provided below. And there are two answers here and the Court is going And the jury has answered

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to be its best to read this. The BOP didn't do their job by faulty logic of putting William and Rudy in the same cell. eight? JURY FOREMAN: THE COURT: Yes. And -- is this the number

So eight jurors indicated that as an

additional mitigation factor. Then the second under what I've just read regarding additional mitigation information is as follows: Quote, Rudy

played a lesser role in the desecration of the body of Joey, unquote. And one juror found that to be an additional mitigation factor. All right. Next question, Did one or more jurors find that the evidence established some other circumstance or circumstances that mitigate or mitigates against the imposition of a death sentence. The answer is "yes." If you answered "yes," list the additional mitigation information you found to be present and the number of jurors who so find in the space provided below. And it looks like actually -- is this a continuation of above, or is this -JURY FOREMAN: Yes, sir.

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THE COURT:

All right.

So there's a no. 3.

Which is

below what I've just read, and it says, quote, Rudy has shown no signs of violent activity in the past nine years. And seven said "yes" to that. Then the next one is no. 4. guards failed to do 30-minute rounds. that. When you have completed your findings regarding mitigation, proceed to the next section, 2C, of this form where you will weigh the aggravating factor or factors, with the mitigating factor or factors, if any, that you found to be present in this case. C, weighing process. The question you must answer at this stage of your deliberations is whether the proven aggravating factor or factors sufficiently outweigh the proven mitigating factor or factors and information to justify a sentence of death. you have not found any mitigation present, whether the aggravating factor or factors considered alone justify a death sentence. If you unanimously find that the weight of the aggravating factors is sufficient to justify a sentence of death, answer, quote, yes, unquote, below; record your verdict on verdict, Sentence of death; certify your decision as described in the section 4; and notify the Court that you have Or if Joey died because the And seven said "yes" to Unquote.

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reached a decision.

If you do not unanimously find that a

death sentence is justified, answer, quote, no, unquote, below; stop your deliberation; sign verdict, Life in prison; certify your decision as described in section 4; and notify the Court that you have reached a decision. And before I read what the answers are to this, I want to just read what's below because it does have some relevance here to the verdict. If you are unable after reasonable efforts to unanimously agree upon a sentence, sign the form on page 13 indicating this. So in response to the question I just read regarding the weighing process, the answer is "no." of "no," is the following. life. But beside the check

Five hyphen death, seven hyphen

And what the Court believes that means is that five of

the jurors, after engaging in the weighing process, were in favor of a sentence of death; however, seven were in favor of a sentence of life. Section 3. Fill in the appropriate verdict form and

then proceed to section 4 and certify your decision as described in section 4 and conclude your deliberations. Now, what the jurors have signed is what is on page 13, which reads as follows: After reasonable efforts, we And the

are unable to unanimously agree upon a sentence.

effect of that is that the Court, of course, will impose a

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sentence of life without the possibility of release, which is what the law requires. instructions. form. So all 12 jurors, including the foreperson, have signed the last page and it's dated this 20th day of May 2008. That completes the reading of special-findings form except that the jurors also signed on page 14 the certification. And it reads, By signing below, each juror Which is what I told them in the

And what was reiterated in the special-findings

certifies that per se consideration of the race, color, religious beliefs, national origin, or gender of the defendant or victim was not involved in reaching his or her individual decision and that the individual juror would have made the same decision regarding the appropriate sentence for the offense in question regardless of the race, color, religious beliefs, national origin, or gender of the defendant or the victim. And as I said a moment ago, each of the 12 jurors, including the foreperson, signed that certification and it's also dated this 20th day of May 2008. Now, would either side desire to have the jury polled as to its findings, specific findings, in response to the special-findings form? MS. TAYLOR: Not for the government, Your Honor. We

thank the jury for their service. MR. LEWIS: No, Your Honor.

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THE COURT:

All right.

Ladies and gentlemen of the jury, the Court thanks you for your service. We started this process back on March 17 And

with a voir dire process that lasted almost three weeks.

then we actually started the evidence on three weeks later and this has been a case where each of you has probably been required to make judgments, make decisions, and make evaluations that you probably have never made before. But the

reason that you're here is because it -- the law requires that we have jurors who can be fair, unbiased, and impartial; and the Court believes that you have been diligent, conscientious, and you have done everything within your individual and collective abilities to follow the Court's instructions and to reach the result and conclusion that you believe to be fair, just, and appropriate under all of the circumstances, including the law as well as the facts which you exclusively found. Now, I have -- and I'm not going to necessarily do it in court right now -- but I want to just indicate that I have certificates of appreciation for each of you and let me just read what they say. And each of you will get one with your

individual names on it. And this says, United States of America, district of Colorado, certificate of appreciation, presented to, and then it has each of your names. In recognition of jury service and

for the exceptional service rendered in the United States

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district court for the district of Colorado, this certificate of appreciation is awarded for the conscientious performance of an important duty of American citizenship. In witness

wherefore, I have hereunto subscribed my name and official seal for the court for the United States district court, Wiley Y. Daniel, United States district court, dated this 19th day of May, 2008, because I signed these yesterday. Just so you know, the alternates were given these certificates yesterday so that they each would have one as well. Now, at this stage, there are a couple of final things I need to do. We have a rule in this court which prohibits the

parties or their attorneys from communicating or causing another to communicate with you during or after the trial without written authority signed by the judicial officer to whom the case is assigned for trial. It is my practice in most

cases, and it will be my practice in this case, not to sign an authorization, which means that it would be improper for either side through counsel or anyone else to contact you about any aspects of your service as jurors. That, however, doesn't apply to the press. I cannot

tell you whether you should or should not talk to the press. That is up to you individually. If you don't want to talk to If you wish to talk to

the press, you should tell them that.

the press, you have the right to do that, but please understand

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whatever you say to the press most likely will be reported publicly. And that would include both newspaper reporters and

any media reporters who may seek to interview you. So again, I cannot tell you whether you should or shouldn't do that. But if you choose not to, then you need to

indicate that and hopefully the person who asks you questions will respect your views. Now, if anyone does anything that you somehow believe would be in violation of the local rule that I read as it relates to the parties and the representatives or if somehow any third party contacts you in a way that causes you to have some concerns, please feel free to contact my chambers. So without further ado, I want to again thank each of you for your service. That now includes all of the alternates.

One of the alternates is in the courtroom. Any others? there. Just one, Miss Dunn, I see you back

Okay, just one of the alternates is in the courtroom.

And so we want to thank all of you for your service and you're discharged and free to go. THE COURTROOM DEPUTY: (Jury out at 1:12 p.m.) THE COURT: I want to go -- have a seat. I want to All rise.

set a sentencing date for the defendant. is June the 5th at eleven o'clock. Does that work for both sides?

And the proposed date

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MS. TAYLOR: THE COURT: MS. TAYLOR: MR. LEWIS: THE COURT:

At eleven, do you say? Yes, June 5 at eleven o'clock. That's fine, Your Honor. Judge, can you go to the following week? That's a problem. I've got a two-week

antitrust criminal trial.

Let's see if we can squeeze it in Which may mean two weeks after

the latter part of that trial. that. Hold on.

Are you available the week of the 16th? MR. LEWIS: THE COURT: MS. TAYLOR: THE COURT: Yes, Your Honor. What about for the government? Yes, Your Honor. Why don't we say 8:30 a.m. on Wednesday,

Does that work for both sides? MS. TAYLOR: MR. LEWIS: THE COURT: the sentencing. Because of nature of this sentence, it's my belief that there's no need for a presentence-investigation report. MR. LEWIS: THE COURT: We agree. And that the mere -- the real purpose of That's fine, Your Honor. Yes, Your Honor. Now, let me just indicate this regarding

this is for the Court to formally impose a sentence which the

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law requires me to impose.

And it would be my intent to use

the same form of sentencing statement that we used for the codefendant because that's something the Court actually personally had input on since it's very infrequent that judges of this court have capital cases. So if anybody has any issues or objections to that form, you just need to let me know before the sentencing date by filing a pleading because it would be my intent to use that form of judgment once the Court has, has formally imposed sentence. I would indicate to the defendant that at that sentencing hearing, as in all sentencing hearings for criminal defendants, the defendant has a right of allocution. So I will

give the defendant an opportunity to make whatever statement he may wish to make. So I just want him to know that, that the

Court always takes that seriously and appreciates defendants who wish to make statements, with the understanding that you have no legal obligation to make one; but if, Mr. Sablan, if you wish to some a statement, you need to understand you have the right to do that. to you. And whether you do that is certainly up

But I just want you to know about that. All right. Is there anything else from either side we

need to take care of? MS. TAYLOR: MR. LEWIS: Nothing from the government. Nothing from us.

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THE COURT:

Let me ask you.

Let me just -- let's go

off the record for a second. (Discussion off the record.) THE COURT: I'm going to ask all of you to come and

collect your exhibits as soon as possible so that I can now move my feet under this bench because these notebooks take up a lot of space. MR. KNIGHT: Judge, I know you have little control

over that; is it possible to request that he remain at FCI instead of going back to the ADX? THE COURT: Let me hear from the U.S. marshals. Since

I need to know what their thoughts are, since it's not that far away. THE MARSHAL: Englewood. THE COURT: MR. KNIGHT: THE COURT: MS. TAYLOR: THE COURT: So that answers your question. Thank you, Your Honor. Anything else? No, Your Honor. We'll be in recess. Judge, we plan on keeping him here at

(Recess at 1:16 p.m.) REPORTER'S CERTIFICATE I certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter. Dated at Denver, Colorado, this 20th day of May, 2008.

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