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 9:40 a.m., on the 19th 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 33, Vol. 46 _______________________________________________________________

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 9:40 a.m.) THE COURT: You may be seated.

The government filed its motion this morning to amend the fourth amended notice of intent to seek the death penalty for Rudy Sablan, and it's clear that what is sought through this motion is to delete a reference to several -- well, for one criminal case, superior court of Guam, and then a Bureau of Prisons incident. And as I look at this, it's consistent with

what the government had raised last week. Does the defendant have any objection to the Court granting this? MR. LEWIS: THE COURT: No objection. Then the government -- then the Court will

grant the government's motion to amend the fourth amended notice of intent to seek the death penalty for Rudy Sablan and will accept for filing the fifth amended notice of intent to seek the death penalty for Rudy Cabrera Sablan. Let me ask a, Miss Taylor. I did not go through and Are you sure

read word for word this fifth amended notice.

this is completely accurate and consistent with your motion? MS. TAYLOR: THE COURT: Yes, Your Honor. Mr. Keech, does Miss Taylor need to file

this electronically or can you scan it? THE COURTROOM DEPUTY: I can take it down and scan it.

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And if you want, I can take the order down and scan it as well. Do you want to sign it? THE COURT: Yes, I can sign it.

I want to make a record of one other thing before we bring the jury in and I read the instructions. While I intend to give some certificates to the alternate jurors, I don't intend to discharge them at this time, and just like I did after or before the jury deliberated on the liability phase, I'm going to tell them pursuant to the rule that they're on standby in case one of the primary jurors is unable to continue his or her service prior to the jury reaching a verdict in this penalty phase. However, once the primary jurors reach a verdict, then, of course, the alternates would then be discharged because there would be nothing else for them to do. So I don't

need you to respond to that, but I just want to tell you what I'm going to do. Is there anything else before we bring the jury? MS. TAYLOR: MR. LEWIS: THE COURT: Nothing for the government, Your Honor. No, Your Honor. All right.

Off the record. (Discussion off the record.) (Jury in at 9:44 a.m.) THE COURT: Good morning.

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JURY:

Good morning. You may be seated.

THE COURT:

Let me tell you what we're going to do this morning just so you'll have a clear sense of schedule of events. In a few minutes, I'm going to read the jury instructions for the penalty phase as well as summarize the special-findings form that constitutes the verdict for this phase of the case. I order you not to take any notes of what

I'm about to say because you will receive both the original version of both the jury instructions and the special-findings form as well as draft copies, so each of you will have your draft set. After I've read these instructions and summarized the special-findings form, the government will present its initial closing statement -- or argument. After that, we will take a short break. And then when

we come back, the defendant will present its summary argument, and then the government, if it chooses, has the right to present a rebuttal. So as I told you Thursday, we will complete all of that before we take your lunch break. And the Court has

ordered lunch for you, so there will be lunch provided. JURY INSTRUCTIONSARGUMENT THE COURT: Instruction no. 1.

Now that you've heard all the evidence that is to be

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received in this sentencing hearing or penalty phase and before hearing the arguments of counsel, it is the duty of the Court to give you the final instructions to guide you in your decision. Each of you will have a copy of these instructions

for your reference during deliberations. All of the instructions of law given to you by the Court, those given to you at the beginning of the penalty phase, those given to you during this phase of the trial, and these final instructions, must guide and govern your deliberations. It is your duty as jurors to follow the law as stated in all of the instructions of the Court and to apply these rules of law to the facts as you find them to be from the evidence received during the trial. Counsel may properly refer to some of the applicable rules of law in their closing arguments. If, however, any

difference appears to you between the law as stated by counsel and that as stated by the Court in these instructions, you, of course, are to be governed by the instructions given to you by the Court. Regardless of any opinion you may have as to what the law is or ought to be, it would be a violation of your sworn duty to base any part of your decision upon any other view or opinion of the law than that given in my instructions. The process by which you reach your decision requires

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that you make and record certain findings in a specific order. To ensure that your findings are stated clearly, and in the required sequence, I will give you a special-finding form. light of the complexity and importance of your task, it is essential that you consider and follow the instructions and special-findings form together as you conduct your deliberations. Instruction no. 2. You have unanimously found Rudy Sablan guilty of first-degree murder as charged in the indictment. The statute In

defining this offense, 18 United States Code section 1111, provides that the punishment may be either a sentence of death or a sentence of life imprisonment without possibility of release. As I instructed you before, the federal system, like many state systems, has no parole. Therefore, a federal

sentence of life imprisonment automatically precludes the possibility of release at any time. The choice between these alternatives is left exclusively to you. Your unanimous decision will be binding on

the Court, and I will sentence Rudy Sablan according to your decision. If you cannot unanimously agree on the appropriate

sentence, the law requires that I sentence Mr. Sablan to life imprisonment without possibility of release. Instruction no. 3.

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The evidence in this phase of the trial consists of sworn testimony of the witnesses, regardless of who may have called them; all exhibits received in evidence, regardless of who may have produced them; and stipulations that counsel agree to, although you're not required to accept the stipulation as evidence and regard that fact as proven because you are the sole judges of the facts. Nothing else is evidence. Counsel's

statements and arguments are not evidence. objections are not evidence. evidence.

Their questions and

My legal rulings are not

And my comments and questions are not evidence.

Any proposed testimony or proposed exhibit to which I sustained an objection and any testimony or exhibits I have ordered stricken must be entirely disregarded. And actually,

the instruction says disregarded entirely, but you understood what I just said. You must completely disregard such proposed, but rejected, evidence. Do not speculate about what a witness These

might have said or what an exhibit might have shown.

things are not evidence, and you are bound by your oath not to let them influence your decision in any way. Anything you may have seen or heard outside the courtroom is not evidence in this case and must be disregarded entirely. You are to base your verdict only on the evidence

received in the case. There are two types of evidence which are generally

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presented during trial: evidence.

Direct evidence and circumstantial

Direct evidence is the testimony of a person who

asserts or claims to have actual knowledge of a fact such as an ear or eyewitness. Circumstantial evidence is proof of a chain

of facts -- chain of acts and circumstances indicating the existence of a fact. The law makes no distinction between the weight or value to be given to either direct or circumstantial evidence. You should weigh all of the evidence in the case. While you must consider only the evidence in this case, you are permitted to draw reasonable inferences from the testimony and exhibits, inferences you feel are justified in light of common experience. An inference is a conclusion that reason and common sense may lead you to draw from facts which have been proved. By permitting such reasonable inferences, you may make deduction and reach conclusions that reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in this case. Instruction no. 4. You are the judges of the credibility or, quote, believability, unquote, of each witness and the weight to be given to the witness's testimony. You may decide to believe

all of a witness's testimony, only a portion of it, or none of it.

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In making your assessment, you should carefully scrutinize all the testimony given by the witness, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness, in your opinion, is worthy of belief. Consider each witness's intelligence, motive to falsify, state of mind, and appearance and manner while on the witness stand; consider the witness's ability to observe the matters as to which he or she has testified; and consider whether he or she impresses you as having an accurate memory or recollection of these matters. Consider also any relation a

witness may bear to either side of the case, the manner in which each witness might be affected by your verdict, and the extent to which, if at all, each witness is either supported by or contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness or between the testimony of different witnesses may or may not cause you to disbelieve or discredit such testimony. Two or more persons witnessing an incident or a transaction may simply see or hear it differently. Innocent misrecollection,

like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, however, always consider whether it pertains to a matter of importance or an insignificant detail and consider whether the discrepancy results from innocent error or from intentional falsehood.

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After making your own judgment or assessment concerning the believability of a witness, you can then attach such importance or weight to that testimony, if any, that you feel it deserves. In some cases, such as this one, scientific,

technical, or other specialized knowledge may assist the jury in understanding the evidence or in determining a fact in issue. A witness who has knowledge, skill, experience, training, or education, may testify and state an opinion concerning such matters. You may accept such an opinion in You should

whole or in part or reject it in whole or in part.

consider opinion testimony just as you consider other testimony in this trial. Give opinion testimony as much weight as you

think it deserves, considering education and experience of the witness, the soundness of the reasons given for the opinion, and other evidence in this trial. As stated before, you, the

jury, are the sole judges of the facts in this case. Instruction no. 5. Let me summarize the deliberative process you must follow in considering the sentencing decision before you. After this broad summary, I will discuss specific areas in more detail. Your deliberations and sentencing findings are organized into two broad categories, each with its own focus. First, you must determine whether Rudy Sablan is

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eligible for a sentence of death under the Federal Death Penalty Act. Unless and until you find that he is eligible for

a death sentence, it is improper for you to even consider whether such a sentence is justified. Second, even if you find Mr. Sablan is eligible for a death sentence, you must select which sentence is appropriate, a sentence of death or a sentence of life imprisonment without possibility of release. Eligibility for a death sentence, that's the heading. And it's in bold in instruction no. 5. To find Mr. Sablan eligible for a death sentence, you must be convinced that the government has proven each of the following beyond a reasonable doubt: First, Rudy Sablan was at least 18 years old when the capital offense was committed; Second, Rudy Sablan acted with a level of intent sufficient to allow consideration of the death penalty; And third, the existence of at least one statutory aggravating factor. If you find that any one or more of the three eligibility conditions has not been proven by the government beyond a reasonable doubt, Rudy Sablan is not eligible for a sentence of death and your deliberations are over. If you find that the government has proved beyond a reasonable doubt that all of these conditions are satisfied,

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the defendant is eligible for a death sentence, and you must proceed to the next stage of deliberations to decide whether such a sentence is justified. And the next heading here is selection of sentence. And again, it's in bold in the instruction. The selection phase or selection stage focuses on all relevant aggravating and mitigating factors. Aggravating and

mitigating factors will be explained later -- excuse me, let me start this again. Aggravating and mitigating factors will be explained in greater detail in a later instruction. But generally

aggravating factors tend to support or justify a sentence of death. On the other hand, mitigating factors tend to suggest

that a sentence of death is not justified and that a sentence of life imprisonment without possibility of release is more appropriate. The selection stage is broken down into two steps: In the first step, you must determine what, if any, aggravating and mitigating factors exist. The government has

the burden of proving to each and all of you beyond a reasonable doubt that an aggravating factor exists. Mr. Sablan

has the burden of proving mitigating factors, but only by a preponderance of the evidence. Furthermore, unlike aggravating factors, any one of you may find that a mitigating factor exists. Unanimity is not

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required.

These two burdens of proof will be discussed in more

detail in a later instruction. The second step involves a weighing process. Each you

individually must engage in a weighing or balancing process in which you will weigh the aggravating factor or factors that all twelve jurors have unanimously and beyond a reasonable doubt found to exist against any mitigating factor or factors that you individually or with other jurors have found by a preponderance of the evidence. After weighing the aggravating and any mitigating factors, the jury must unanimously decide whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death. If you do not find any mitigating factors, you still must decide whether the aggravating factors are sufficient to justify imposition of a death sentence. If you determine as a result of this weighing process that the factors do not justify a death sentence, such a sentence may not be imposed and your deliberations are over. If you determine that the factors do justify a death sentence, that death sentence must be imposed. But as I will instruct you, weighing aggravating and mitigating factors is not a mechanical process and the judgment involved is exclusively yours. Each of you is called upon to

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make an individualized judgment as to which sentence is appropriate. Individual jurors consider such factors as

qualitatively assessing the weight and value of each factor. Whatever findings you make with respect to aggravating and mitigating factors, the result of the weighing process is never foreordained. For that reason, a jury is never required to

impose a sentence of death. At this last stage of the deliberation, it is up to you to decide whether, for any proper reason established by the evidence, you choose not to impose such a sentence on the defendant. Any decision to impose a sentence of death must be unanimous. Instruction no. 6. A reasonable doubt means a doubt based on reason and common sense after careful and impartial consideration of all evidence in the case. A reasonable doubt is the kind of doubt

that, after consideration of all the evidence or lack of evidence, would cause reasonable people to hesitate to act upon it when conducting the more serious and important affairs in their own lives. There are few things in this world that we

know with absolute certainty, and in criminal cases, the law does not require proof that overcomes every possible doubt. is only required that the government's proof include any, quote, reasonable doubt, unquote. It

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As explained later, the government has the burden of proving beyond a reasonable doubt that Rudy Sablan is eligible for a death sentence. The government also the burden of

proving beyond a reasonable doubt the aggravating factors that it has alleged. As to the matters the government must prove beyond a reasonable doubt, Rudy Sablan is not required to produce any evidence. Further, he is not required to assert or establish

any mitigating factors, nor is he required to prove to you that a sentence of life imprisonment without possibility of release is the appropriate sentence. If, however, Mr. Sablan asserts

mitigating factors, he has the burden of proving them by a preponderance. To prove something by a preponderance of the evidence is a lesser standard of proof than proof beyond a reasonable doubt. A mitigating factor is established by a preponderance

of the evidence if its existence is shown to be more likely true than not true. Instruction no. 7. As part of the eligibility stage of your deliberation, you must unanimously find beyond a reasonable doubt that the government has proven that Rudy Sablan was at least 18 years old when the capital offense was committed. If you do find --

if you do so find, answer, quote, yes, unquote, on the appropriate part of the special-findings form and continue your

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deliberation.

If you do not so find, answer, quote, no, Sign the selection on the form

unquote, on the form.

indicating a sentence of life imprisonment, and certify your decision as in section 4, which will conclude your deliberations. Instruction no. 8. As part of the eligibility phase of your deliberations, you must unanimously find beyond a reasonable doubt that the government has proven that, in committing the charged -- offense charged in the indictment, Rudy Sablan: One, intentionally killed the victim; Or, two, intentionally inflicted serious bodily injury that resulted in the death of the victim; Or, three, intentionally participated in an act, contemplating that the life of a person 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 direct result of the act; Or, four, 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 to human life and the victim died as a direct result of the act. Your findings must be based on Rudy

Sablan's personal actions and intent.

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Intent may be proven like anything else.

You may

consider any statements made and acts done by Mr. Sablan and all the facts and circumstances in evidence which may aid in a determination of his intent. I instruct you that your findings of one of these alternatives is not an aggravating factor and may not be weighed by you during the selection stage of your deliberations. The alternative mental states are set out in

the special-findings form, and you must consider and resolve them separately. For each one, you must consider whether you

unanimously agree that the government has proven -- has proved it beyond a reasonable doubt and indicate your answer on the form and then continue with the next until you have finished. If you answered, quote, yes, unquote, to one or more of these alternatives, continue your deliberations. If you

answered, quote, no, unquote, to all four alternatives, sign the section of the special-findings form indicating a verdict of life imprisonment, and certify your decision as described in section 4, which will conclude your deliberations. Instruction no. 9. Although it is left solely to you to decide whether the sentence should be life imprisonment without possibility of release or death, Congress has narrowed and channeled your discretion in specific ways, particularly by directing you to consider and weigh aggravating and mitigating factors presented

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by the case.

These factors guide your deliberations by

focusing on certain circumstances surrounding the crime and the personal traits, character, and background of the defendant. Aggravating factors are consideration or circumstances that tend to support imposition of a sentence of death. The

government is required to specify the aggravating factors upon which it relies, and your deliberations are limited to its choice. Even if you believe that the evidence reveals other

aggravating factors, you must not consider them. Mitigating factors are considerations or circumstances that suggest that the sentence should be life imprisonment without the possibility of release. Mitigating factors need

not justify or excuse Mr. Sablan's conduct, but they do suggest that a sentence of life imprisonment without possibility of release is a more appropriate sentence than death. Aside from the requirement that the government prove at least one statutory aggravating factor, your task is not simply to decide whether, which, or how many aggravating, mitigating factors are present in the case. You must also

evaluate and weigh such factors and ultimately make an individualized judgment about the appropriate sentence of Rudy Sablan. Instruction no. 10. Before you may proceed to the selection stage, you must unanimously find beyond a reasonable doubt that the

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government has proven the following statutory aggravating factors prescribed by Congress and alleged by the government in this case: The defendant committed the offense charged in the indictment in an especially heinous or depraved manner in that it involved serious physical abuse to the victim. There are

specific factual circumstances that the government must establish by proof beyond a reasonable doubt for the statutory aggravating factor which will be explained in later instructions. The statutory aggravating factor is set out in You must decide whether you

the special-findings form.

unanimously agree that it has been proven beyond a reasonable doubt and indicate your answer on the form. If you have answered, quote, yes, unquote, to the statutory aggravating factor, continue your deliberations. If

you've answered, quote, no, unquote, sign the section of the special-findings form indicating a verdict of life imprisonment and certify your decision as described in section 4, which you -- which will conclude your deliberation. Instruction no. 11. The statutory aggravating factor alleged by the government is that Rudy Sablan committed the offense charged in the indictment in an especially heinous or depraved manner in that it involved serious physical abuse to the victim. Any

finding regarding this aggravating factor must be based on Rudy

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Sablan's personal actions and intent.

Principles of aiding and

abetting as defined in the liability phase are not applicable to this decision. Sentencing in capital cases must be an

individualized consideration of the acts and intent of the particular defendant being sentenced. Quote, especially, unquote, should be given its ordinary, everyday meaning of being highly or unusually great, distinctive, peculiar, particular, or significant. Quote, heinous, unquote, means extremely wicked or shockingly evil, where the killing was accompanied by such addition acts of serious physical abuse as set apart from other killings. Quote, depraved, unquote, means that the defendant relished the killing or showed indifference to the suffering of the victim as evidenced by serious physical abuse. Quote, serious physical abuse, unquote, means a significant or considerable amount of injury or damage to the victim's body which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Serious physical abuse may be inflicted regardless of whether the victim was conscious of the abuse at the time it was inflicted and may be inflicted either before or after death. Rudy Sablan must, however, have specifically intended

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the abuse apart from the killing. Pertinent factors which you may consider in deciding whether a killing is especially heinous and depraved include infliction of gratuitous violence on the victim above and beyond that necessary to commit the killing, needless mutilation of the victim's body and helplessness of the victim. Instruction no. 12. The government has also alleged the existence of a nonstatutory aggravating factor in this case. Nonstatutory

aggravating factors tend to support imposition of the death penalty, though they have not been specifically listed by Congress. The factor by -- the factor alleged by the

government is future dangerousness of the defendant. Future dangerousness, as alleged by government, means the likelihood that Rudy Sablan will continue to commit acts of violence in the future which would be a continuing and serious threat to the lives and safety of others. In deciding whether future dangerousness has been proved, you must understand that if Rudy Sablan is not sentenced to death, he will spend the rest of his life in federal prison without any possibility of release. Therefore,

you must consider only the possible danger that he might present to other inmates and prison staff in the event he is sentenced to life imprisonment. To prove something is, quote, likely, unquote, means

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to prove that this is more probable than not.

Thus, the

government must prove beyond a reasonable doubt that it is more probable than not that in the future Rudy Sablan will intentionally commit criminal acts of violence against the other persons in prison. The nonstatutory aggravating factors set out in the special-findings form, and just what is the statutory aggravating factor, you must consider it separately. You must

decide whether you unanimously agree that it has been proved by government beyond a reasonable doubt and indicate your answer on the form. Regardless of your findings on this nonstatutory factor, you must proceed to the next step in your deliberations which involves consideration of mitigating factors. Instruction no. 13. The Court instructs you that William -- that William Sablan was convicted of murder in the first degree for the killing of Joey Estrella. William Sablan's case proceeded to a He

penalty hearing, and he did not receive a death sentence.

received a sentence of life in prison without the possibility of release. Instruction no. 14. The law never assumes or presumes that a defendant should be sentenced to death. Accordingly, Rudy Sablan is

under no obligation to establish the existence of any

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mitigating factors or to disprove the existence of any aggravating factors. Rudy Sablan has presented evidence in

support of specific mitigating factors, and the law requires you to consider that evidence. Rudy Sablan offers the following mitigating factors for consideration in this case: 1. William Sablan, equally culpable in the crime,

will not be punished by death. 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. 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 to the charge. No. 4. The killing of Mr. Estrella was a result of an

altercation between Joey Estrella and William Sablan. No. 5. Rudy Sablan was not a participant in the

initial confrontation between Joey Estrella and William Sablan. No. 6. Rudy Sablan intervened and broke up the fight

between Joey Estrella and William Sablan at least twice. 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. Instruction no. 8. The escalation of the fight

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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. No. 9. Upon William Sablan's arrival at the United

States penitentiary, Florence, the Bureau of Prisons, quote, BOP, unquote, 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 hold only two people. 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. 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 job or jobs by allowing alcohol and weapons in the cell. No. 12. Rudy Sablan was cooperative in his removal Furthermore, Rudy

from the cell after Joey Estrella's death.

Sablan encouraged William Sablan to cooperate with correctional officers during their removal from the cell. 13. No. 13. Rudy Sablan obtained 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. No. 14. Rudy Sablan was raised in an abusive family

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and suffered physical and emotional abuse at the hands of his father. No. 15. Rudy Sablan is a concerned and loving father

who is trying to be a positive influence on his 14-year-old son. No. 16. Rudy Sablan has a close and loving

relationship with other family members and maintains contact with them. 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. No. 18. Rudy Sablan is a talented artist and

continues to rehabilitate himself through his artwork. No. 19. Rudy Sablan has used his creative talents in

a way that, that is beneficial to others and shows his love and concern for them. No. 20. Rudy Sablan convinced another inmate,

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

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. No. 22. Rudy Sablan attempted to break up a fight

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between inmates Jimmy Couch and Paul Hennings at USP Florence in 1999. No. 23. If not sentenced to death, Rudy Sablan will

be sentenced to life in prison without any possibility of release. Rudy Sablan need only prove the existence of any mitigating factor or factors by preponderance of the evidence; that is, by evidence sufficient to persuade you that, that the factor is more likely present than not present, and the law does not require unanimous agreement with regard to mitigating factors. Any juror may find the existence of a mitigating factor and must then consider that factor in weighing the aggravating and mitigating factors even though other jurors may not agree that the particular mitigating factor has been established. Moreover, any juror may consider a mitigating

factor found by another juror, even if he or she did not concur in that finding. Your discretion in considering any mitigating factor or factors is much broader than your discretion in considering aggravating factors. The law permits you to consider any other

relevant mitigating information presented in this proceeding in addition to the specific factors recited above as -- so long as its existence was proved by a preponderance of the evidence. Quote, relevant mitigating information, unquote,

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includes anything in the defendant's background, record, character, or any circumstances of the offense which suggest to you that a sentence of death should not be imposed. Throughout

these instructions, references to mitigating factors should be understood to include other relevant mitigating information. Record your findings as to the mitigating factors as indicated by the special-findings form. Regardless of your

findings as to these factors, however, you must proceed to the next step in your deliberations which involves weighing aggravating and mitigating factors. Instruction no. 15. After completing your findings regarding aggravating and mitigating factors, each juror must engage in a weighing process to determine whether a sentence of death is justified. In this process, each of you must consider only those aggravating factors, statutory and nonstatutory, that the jury unanimously found to exist. Each you must also consider any mitigating factors that you individually found to exist, and each of you may consider any mitigating factors found by any of the other jurors. Because the findings of mitigating factors is

individual to each juror, the weighing that each of you must engage is necessarily an individual process. The task of weighing aggravating and mitigating factors against each other or weighing aggravating factors

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alone if there are no mitigating factors is not a mechanical process. You should not simply count the number of factors but

consider the particular character of each, which may be given different weight or value by different jurors. What constitutes sufficient justification for a sentence of death in this case is exclusively left to you. Your role is to be the conscience of the community in making a moral judgment about the worth of an individual life, balanced against the societal value of what the government contends is deserved punishment for the defendant's offense. Whatever aggravating and mitigating factors are found, a jury is never required to conclude the weighing process in favor of a sentence of death. But your decision must be a

reasoned one, free from the influence of passion, prejudice, or arbitrary consideration. Instruction no. 16. And we have three more instructions, just to let you know. After each juror has performed his or her individual weighing process, the jury as a whole is to vote to reach a verdict. The jury must unanimously decide whether all the

aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death. If you do not find any mitigating

factors, you must -- you still must unanimously decide whether

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the aggravating factors are sufficient to justify imposition of a death sentence. The special-findings form includes two verdict firms, one for a unanimous verdict for a sentence of death, the other for a unanimous verdict for a sentence of life imprisonment without possibility of release. reflects your vote. If you do not unanimously find that the aggravating factors or factors sufficiently outweigh the mitigating factor or factors to justify a sentence of death or in the absence of any mitigating factor, that the aggravating factor or factors considered alone justify a sentence of death, answer, quote, no, unquote, on the special-findings form, sign the section of the form indicating a verdict of life imprisonment, and certify your decision as described in section 4, which will end your deliberations. If you unanimously find that the comparative weight of the aggravating factor or factors is sufficient to justify a sentence of death, answer, quote, yes, unquote, on the special-findings form, sign the section of the form indicating a verdict of death, and certify your decision as described in section 4 of the form. If after reasonable efforts you are unable to unanimously agree on a sentence, you are to indicate that on the appropriate page of the form, and the Court will sentence Complete the form that

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Rudy Sablan to life imprisonment without possibility of release. Before you reach any conclusion based upon a lack of unanimity, you should continue your discussions until you are fully satisfied that no further discussion will lead to a unanimous decision. Instruction 17. In considering whether a sentence of death is justified, you should not consider the race, color, religious beliefs, national origin, or gender of the defendant or of any victim. You are not to impose a death sentence unless you

conclude that you would do so -- that you would do so no matter what the race, color, religious beliefs, national origin, or gender of the defendant or victim may be. Whatever sentence and decision you reach, each of you is required by law to sign a certification attesting to the fact that you have followed this instruction. And there's a change in the second line in instruction 17. I'll change the word "following" to "follow."

Do all counsel agree? MS. TAYLOR: MR. LEWIS: THE COURT: Yes, Your Honor. Yes. And we'll make that change.

The certification is set out in section 4 of the special-findings form.

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Instruction 18. You have now been instructed on the law applicable to the consideration of the appropriate sentence and the process by which you should determine the facts and weigh the evidence. The importance of your deliberation should be obvious. I

remind you that you may return a verdict sentencing Rudy Sablan to death only if all twelve of you are unanimously persuaded beyond a reasonable doubt that a sentence of death is justified in this case. When you are in the jury room, please discuss all aspects of the sentencing issues among yourselves with candor and frankness but also with a due regard and respect for the opinions of one another. Each of you must decide this question

for yourself and not merely go along with the conclusion of your fellow jurors. In the course of your deliberation, none of you should surrender your conscientious beliefs of what is the truth or what is the weight and effect of the evidence and what should be the outcome as determined by your individual conscience and evaluation of the case. Remember that the parties and the Court are relying upon you to give full considered and mature consideration to this sentencing. By doing so, you carry out to the fullest

your oaths as jurors, that you will well and truly try the issues of this case and render a just result.

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You have the right at this stage of the proceeding to select a new foreperson if you so choose. If it becomes necessary during your deliberations to communicate with the Court for any reason, you may send a note signed by your foreperson or by one or more members of the jury through the court security officer. Do not attempt to

communicate with the Court by any other means other than a signed writing, and the Court will not communicate with any of you on any subject touching on your sentencing decision other than in writing or orally here in open court. When you have reached a decision, give a note signed by your foreperson to the Court security officer indicating that you have reached a decision. decision is on the note. Do not indicate what the

You're not to reveal to any person or

to the Court how the jury stands numerically or otherwise until you have reached a verdict. Nothing that the Court has said in these instructions and nothing said or done during the trial and sentencing hearing has been said or done to suggest to you what the outcome should be. yours. Now, regarding the special-findings form, I'm not going to read this word for word because it tracks, to a large extent, the language that's in the jury instructions. going to explain the organization. I'm just The sentencing decision is exclusively

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It's called special-findings form.

Roman numeral one

says, Findings regarding Defendant's eligibility for a death sentence. 1A says, Defendant's age at time of offense. You'll

answer that question and then you will either say yes or no. And depending upon how you answer that, then you'll either proceed to the next section or you will stop. 1B says, Defendant's intent in commission of offense. And again, there are specific questions that are answered there yes or no, and these questions track what I read in the jury instructions. I think this is self-explanatory. And again,

depending upon how you answer those questions, you will either stop or you will go to 1C. 1C is entitled statutory aggravating factors. will answer that either yes or no as it relates to the statutory aggravating factor that's been alleged. Again, And you

depending upon how you answer that question, you'll either stop or you'll continue. The next section of the special-findings form is entitled, Roman numeral two, findings regarding selection of the sentence. 2A, nonstatutory aggravating factor. And again, as it

relates to future dangerousness, you will either answer that yes or no. And then you will proceed to 2B, which is entitled

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mitigating factors. Now, regarding each of the 23 mitigating factors that I read, they are repeated verbatim in this section of the instruction, and after each mitigating factor appears, these words appear, "Number of jurors who so find." And what that

means is you are to numerically enter the number of jurors who found that mitigating factor to exist. Now, after the 23rd mitigating factor, answer, with the words "number of jurors who so find," the following is in this special verdict form -- or findings form. As explained in

the Court's instruction, the law permits you to consider any other mitigating factor in addition to the specific mitigating factors alleged by the defendant listed above, so long as you find it was proved by preponderance of the evidence. As with

specific mitigating factors, your findings in this regard need not be unanimous. So the next question says, Do one or more jurors find that the evidence has established any other factors in the defendant's background, record, or character that mitigate or mitigates against the imposition of a death sentence. If the If

answer is yes, then indicate that; if no, then indicate. the answer is yes, then you need to list on page 9 the

additional mitigating factors that have been found present and the number of jurors who so find in the space provided below. All right. Then the next question is, Do one or more

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jurors find that the evidence has established some other circumstance or circumstances that mitigate or mitigates against the imposition of a death sentence. answer that yes or no. You can either

If your answer is yes, then, of course,

you would indicate what those factors are. All right. Now, depending -- then you would then go And this

to the next section, which is 2C, weighing process.

weighing process tracks essentially what I've already told you through the instruction, and you -- answer that yes or not. And then section 3 is imposition of sentences. is one sheet that is entitled verdict sentence of death. it would have to be signed by all of you per my prior instructions. There is the next one that says life imprisonment. And that would be signed by the jurors if you reach agreement on that. And then the third one says, After reasonable efforts, we are unable to unanimously agree upon a sentence. would then have to be completed. And then the final form is a certification form that relates to the certification process I read to you in the jury instructions, and that is to be signed by each of the jurors. Now, do these jury instruction as read by the Court and the special-findings form as summarized by the Court and partially read by the Court represent the jury instructions, And that There And

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penalty phase, and special-findings form, penalty phase agreed to by the Court and counsel subject to the record previously made? MS. TAYLOR: MR. LEWIS: THE COURT: All right. closing. CLOSING ARGUMENT MS. TAYLOR: of the jury. I want to start by thanking each and every one of you for the service that you've given to this case, and I know it's particularly difficult for those of you who are the alternate jurors and have been sitting and not being able to be included in the deliberations. But this has been a long, very difficult case for everybody here, and I just want you to know that we do sincerely appreciate the service and the personal sacrifice that this requires of each and every one of you. understand that. This case is factually extremely difficult for us and for everybody; and whenever I think about this case, I -there's a book to comes to mind that I read a longe tim ago, a memorandum written by Frank McCort, called Angela's Ashes. And Just so you May it please the Court, counsel, members Yes, they, do, Your Honor. They do, Your Honor. All right. Miss Taylor, you may proceed with your

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I don't know if anybody's read that, but it has to do with an Irish family, long-suffering Irish family and terrible things that happened to that family as viewed through the eyes of Frank McCort as a child. And there's a phrase that he uses in that book to describe something that's indescribable, to describe suffering that's unbearable. And he uses the phrase "beyond the

beyonds," something that you just can't use words to describe. Beyond description, beyond comprehension, beyond what we would think that human beings are capable of doing to each other. Beyond what any human being should have to endure. You need to

understand that what happened to Joey Estrella in that cell that night was beyond the beyonds. And that's really what lies at the heart of this decision that you're going to be asked to make this time when you deliberate. And that really is what makes this case

different from other murder cases, this indescribable, incomprehensible brutality that you have to make a judgment about. And in order to do that, you need to decide a question,

and that is, who is Rudy Sablan, who is this person that sits before you. And defense witnesses have come in to talk to you about that. There have been several people convicted of murder

who came in and talked about his character and things that he had done in the prison. Clifford Black came in and told you

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how Rudy Sablan had convinced him not to attack guards with a knife, not because there was anything wrong with that, but because it might affect his appeal of his murder case. Mr. Paul Hennings came in here to tell you about a fight that he had with inmate Couch, which is one of the incidents that we talked about in connection with future dangerousness in January 1999. Mr. Hennings came in to say

that that was his fight, that he's the one who had the fight with Couch. fight. He and Couch started it; it was not Rudy Sablan's

But he didn't come in here and tell you that the

officer who testified, Chris Jensen, was not telling the truth when he told you what happened because he was there and he saw this, Chris Jensen. Their fight became Rudy Sablan's fight to

the point of stomping Mr. Couch and beating him until officers separate -- had to come into the cell and separate them. that was in front of an officer. Hennings said he was paying attention to what he was doing. He didn't really know what Rudy Sablan was doing. But And

you heard from Chris Jensen about that situation. Then there was Mr. Kelly who came in here to tell you that the weapon that was found by Officer Andert in the cell he shared with Rudy Sablan in December of 1997 was really Mr. Kelly's and that the reason Rudy took the blame was so that Mr. Kelly might be able to have a visit with his father sometime not specified in the future, unknown, a visit that

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never really happened. Now, Mr. Kelly also gave us some insight into the relationships of cellmates in the USP, how necessary weapons are and how it was common courtesy for cellees to share information about where their weapons were. good friend of Rudy Sablan's. Mr. Kelly was a

They got along well, and they

were long-time cellmates, not unlike Rudy and Joey Estrella. Then you also heard from defense witnesses, from family members of Rudy Sablan. difficult childhood. And they talked about his

And I guess the question is, does the

fact of a difficult childhood really explain how Rudy Sablan ends up here today. Who is Rudy Sablan? I would submit to you that you

have to turn your focus back to the defendant's own actions and see if you can figure that out. I want to talk a little bit about the statutory aggravating factors. Once you decide that defendant was 18 in

1999, then you need to consider the mental states that the Court read to you in instruction no. 8. If I could have slide no. 2, please. As he read this to you, you need to find one, at least one of these mental states. And you know what discussions These

you've had in deliberations on -- in the first verdict.

mental states are consistent with the mental states that you considered earlier: Intentionally killed Joey Jesus Estrella;

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intentionally inflicted serious bodily injury; or intentionally participated in acts to take the life or use lethal force; or intentionally acted in reckless disregard for life. This is clear from the evidence that at least one of these mental states was present in the case of Rudy Sablan. Then as the Court told you, in order to continue your analysis of whether he's eligible for the death penalty, you have to find that the statutory aggravating factor that has been charged has been proven, and that really takes us back to why we're all here, the murder of Joey Estrella. The aggravating factor we're asking you to consider is whether or not this murder was committed in a heinous or depraved manner. that that's true. I submit to you that there is no question There's no doubt of that.

If we could have slide no. 3. The instruction goes on to describe to you what is meant by the term "heinous or depraved." And it is this: Rudy

Sablan committed the murder of Joey Estrella in an especially heinous or depraved manner; he was involved in serious physical abuse of the victim; the serious physical abuse can occur during or after the death. Slide no. 4, please. Heinous means extremely wicked or shockingly evil, as the Court instructed you, where the killing is accompanied by such additional acts of serious physical abuse as set apart

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from other killings. Depraved means that the defendant relished the killing or showed indifference to the suffering of the victim as evidenced by serious physical abuse. I want to, for purposes of those who are in the courtroom here to see these closings, I want to warn that there are going to be some slides here that are not going to be easy to see, and so if anybody wants to leave before I start showing these slides, please, please do that. Did this defendant relish the killing? slide no. 7. This is the situation here. And I'm not just showing This is the Let's look at

this to you to continually put this before you. reality of this case.

The behavior of Rudy Sablan before and

after the video showed a total lack of remorse, a total lack of humanity. Before the video started, there was celebratory

shouts down the range from him as described by Mark Farmer, offering up body parts. The actions were so profane that even

the toughest of the tough were speechless down that range. You can take the slide down. What did he have to say? come and get his ass. for you. You have testimony of Rudy Sablan reaching into the body, using body parts to wipe the window, treating Joey This motherfucker is dead; I can get it

Do you want to a heart?

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Estrella, his good friend, his long-time cellmate, with total disrespect and disdain. In the video -If I could have slide no. 9. -- he's participating in the further degradation of the body, Slap him; slap him, directing William Sablan as to what he's to do during the video. Again, this is his good

friend, his cellee, just like Mr. Kelly. And slide no. 11. Is particularly telling 'cause it's Rudy Sablan saying, Just tell them that he was already dead when we . . . .

Which is talking about the mutilation. cold-blooded actions.

Extremely

The injuries that were inflicted in this

case are beyond the beyonds. No. 13. The autopsy neck photos of the injuries, the

cutting, the strangulation, incredible brutality. No. 15. No. 17. Organs that have been removed from the body. The abdominal wound that Dr. Baden told you

had not only been cut, but pulled apart to pull out the organs. And in this picture, in the autopsy, the organs have been replaced into the opening. This is beyond comprehension. this different. In addition to the heinous-and-depraved factor, the And that's what makes

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government has alleged future dangerousness, and we've done this through the several instances that we've talked about, and I've put these together in slide 19. Beginning in February of '96, the ice pick attack on Mr. Mun. Mr. Mun came here all the way from Korea. And part

of what's been difficult through this penalty phase is the difficult logistics, and I apologize for the problems in getting all of that put together. But he came here and he

testified to you about that, along with two other witnesses who saw the attack, a brutal attack. December 3 of 1997, the possession of the weapon in the cell, which Mr. Kelly came in and talked about. June 13 of 1998, the next year, assault on inmate Menzer. In this instance, Rudy Sablan tied up the victim after

he was unconscious, and the beating resulted in profuse bleeding from the man's head and face. And then in January 29, 1999, the assault on Jim Couch. This was described as a cellee's fight, according to And

Hennings, a fight between two other people in the cell.

according to Hennings, Rudy Sablan's role was as a peacemaker, to try to break it up. But that's now how it stayed because

Rudy Sablan got involved in the fight, and the two of them stomped this victim in front of the guard. in to bring him out and to separate them. And then finally, the reason that we're here, the next And they had to go

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year, the same year, the murder of Joey Estrella, another cellee fight, a fight between Joey Estrella and William Sablan in which Rudy Sablan, according to Mark Farmer, also tried to break it up initially, but then it all changed. Couch incident. Just like the

This time no one was paying any attention, and

no guard was there to about a break it up. You've heard about 23 mitigating factors that the defense is asking you to consider, and you have to determine which, if any, of these has been shown. about them in groupings. One is participation in the crime, the suggestion that Rudy Sablan's role was a minor one. Your verdict, I would And I want to talk

submit to you, refutes that characterization, and the evidence refutes that characterization. They also tell you that because this was Joey Estrella's and William Sablan's fight and Rudy tried to break it up twice, that that's a mitigating factor. discussion of Rudy as a peacemaker. like what Paul Hennings said. Again, it's this

It sounds familiar, just

Forget what Rudy did, because it That's not how this

was my fight, that's how it started. works.

Choices were made, and he chose to make this fight his

own, and it resulted in the death of Joey Estrella. Another mitigator that is suggested is the escalation was caused by William Sablan's mental condition. Well, you can

consider the evidence of that and the ability of William Sablan

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to follow the direction of Rudy Sablan in that cell.

And there

certainly is no suggestion that Rudy Sablan was suffering from any mental condition. He showed no fear of William in the And the

evidence that you consider on the issue of guilt.

evidence was clear that he was, in fact, directing him to do certain things throughout that. Another mitigator is the suggestion that the escalation is Joey Estrella's fault, that he was drunk and aggressive. Well, I would submit to you that Joey Estrella

would appear to be an amateur when it comes to aggression, given what happened in this cell. Don't forget that Joey

Estrella's aggression was cut off with the strangulation that left him unconscious and unable to fight back while he was being butchered and mutilated. Then there are the mitigators about the Bureau of Prisons and that it's the fault of the Bureau of Prisons for putting three people in the cell they referred to. here to apologize for the Bureau of Prisons. We're not

But there were

plenty of other triple-celled people in that SHU that night and on many other occasions. Nobody else was driven to do what was

done to Joey Estrella in that cell. It's the fault of the Bureau of Prisons for allowing alcohol and weapons in the cell. Well, while it's tragic for

Joey Estrella that no one was there to stop what happened and nobody did what they were supposed to do, but to suggest that

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the Bureau of Prisons is responsible and to blame for the choices of Rudy Sablan is wrong. Whatever your opinion may be

of the Bureau of Prisons and their competence, if anything, allegations of people not doing their jobs makes the defendant more of a danger in the future. Another mitigator is Joey and Rudy had been cellees for a long period of time with no problems. Well, that's true,

but does t