Allison Jaros

Allison Jaros is a prosecutor with the U.S. Attorney’s Office in New Mexico. Her official title is assistant U.S. attorney.

To’Hajilee man, Joshua Gutierrez, sentenced to 12 years per plea deal for killing Llewyn Platero

Wheeler Cowperthwaite

• Judge Martha Vazquez sentenced Joshua Gutierrez to 12 years, per a binding plea deal
• Gutierrez shot Llewyn Platero in the chest, killing him
• Prosecutor Allison Jaros offered the 12-year plea deal for voluntary manslaughter

See past stories or the case write-up

ALBUQUERQUE, N.M. — Joshua Gutierrez was sentenced to 12 years for for fatally shooting Llewyn Platero in 2020, per a binding plea deal.

District Judge Martha Vazquez sentenced Gutierrez, 22, of To’Hajilee on April 7, 2021, after accepting to be bound by the terms of his plea deal, which gave him a 12-year sentence.

Vazquez had the final discretion of whether to accept or reject the plea agreement proffered by prosecutor Allison Jaros. Gutierrez originally pleaded guilty on Oct. 15, 2020, in front of Magistrate Judge Paul Briones who accepted Gutierrez’s guilty plea to a criminal information charging him with voluntary manslaughter and discharging a firearm in the course of a crime. The firearm charge mandates a 10-year sentence.

He received just two years for killing Platero, 36 and the remaining 10 years on his sentence came from the firearm charge.

Gutierrez apologized to Platero’s family during the hearing and introduced his own family members. Platero’s mother, Jackie Platero, addressed the judge, according to the sentencing minutes. The minutes do not detail what anyone said at the hearing.

In a sentencing memorandum, Jaros justified the binding plea deal’s 12-year sentence, even though it was made over the objections of Jackie Platero, who reportedly told Jaros she wanted Gutierrez to serve a life sentence.

“At the time of the change of plea, she expressed that she was not happy with the plea agreement, which she viewed as too lenient,” Jaros wrote.

Jaros justified the 12-year sentence with Gutierrez’s self-defense claims and the evidence.

“The proposed plea agreement holds Defendant accountable for the death of John Doe and the terrorizing of John Doe’s relatives by requiring Defendant to serve a significant prison sentence,” Jaros wrote.

Platero leaves behind four children.

Contents

The killing of Llewyn Platero

On March 29, 200, Gutierrez was spending the night at the house where his girlfriend, identified in court records as C.P., (YOB: 1987) and her father, L.P., lived. Platero was C.P.’s ex-boyfriend and the father of her child, Jaros wrote in the sentencing memorandum.

Gutierrez as at least partially motivated by “bad blood” between himself and Platero because of Platero’s past relationship with Gutierrez’s new girlfriend, Jaros wrote.

The night Gutierrez shot Platero, Platero went to L.P.’s house as part of a group who wanted to hang out with him, Jaros wrote. The group included Platero’s brother, Michael Kelewood, referred to in court documents as “M.K.,” Kelewood’s girlfriend and Platero’s cousin, referred to as “J.L.” J.L.’s age is not given but he is a teenager.

“The group arrived at L.P.’s house in the early morning hours of March 29, 2020 after a night out,” Jaros wrote. “L.P. invited the group into his room to drink, smoke, and hang out.”

At some point, Platero and Kelewood started arguing and wrestling in the father’s room. C.P. then ordered them to leave and they started walking down the hallway, she wrote.

“Almost immediately after leaving the room, John Doe ran into Defendant who had armed himself with a gun and come to the room to challenge the group,” Jaros wrote.

Most witnesses agreed that Platero made an aggressive movement toward Gutierrez. Gutierrez told police that Platero swung at him and grazed his face, panicked and shot Platero. C.P. told police that Platero swung at Gutierrez as he was walking down the hallway, Gutierrez got mad and shot Platero, Jaros wrote.

Cousin J.L. gave “varying” accounts, including one immediately after Platero’s death, that Platero shoved Gutierrez prior to being shot. Platero died in J.L.’s lap, she wrote.

“In a later statement, after the stress of the moment had passed, J.L. indicated he did not recall seeing any physical altercation between John Doe and Defendant before the shooting,” Jaros wrote.

Federal Bureau of Investigation Agent Dibiassi Robinson wrote in an affidavit for a criminal complaint that he spoke to J.L. at the Route 66 Casino, where Platero was taken by minivan to wait for an ambulance. Kelewood drove while J.L. applied pressure on Platero’s wound.

“JL indicated that as they approached the kitchen GUTIERREZ raised a handgun up, in his right hand, and fired one shot into the chest of DOE,” Robinson wrote. “JL made no mention of an assault or attempted assault by Doe towards GUTIERREZ. While attempting to provide aid to DOE, JL explained that GUTIERREZ told him and MK to get out of the residence ‘or I’ll shoot you too!’ Gutierrez pointed the firearm at the two as he spoke those words.”

According to the autopsy report, Platero died from a single gunshot wound. The bullet went through his heart and lungs, causing a “large amount” of bleeding in the chest cavity.

Past stabbing

The “bad blood” between Platero and Gutierrez was actually a stabbing.

Crownpoint Police Officer James Dan Jr. wrote in a police report he was called to the site of a domestic and found Gutierrez on the side of the road, clutched over in pain. After he was taken to the hospital, he talked to a woman identified as J.P., who told him she was in her house with her grandchildren when Gutierrez started banging and kicking on the door, saying he “was gonna kill all of us.”

A.L., who was working on his jewelry, said he heard someone banging on the front door. Gutierrez then broke the screen door and A.L. told the officer “I then went after him to stop him.”

Gutierrez was charged for criminal damage and the officer did not write if anyone admitted to stabbing him.

Jaros wrote that the shooting was an outgrowth of that bad blood. It is not clear from the police reports what role, if any, Platero had in the prior stabbing.

“Six months prior to the shooting, Defendant went to John Doe’s house and threatened John Doe and his family with a large metal pipe that was made to look like a firearm,” Jaros wrote.

Pattern of improper sealing

According to the court records, Guteirrez’s attorney, Sylvia Baiz, a federal public defender, appears to have improperly placed her sentencing memorandum under seal. The document does not appear on the federal court docket but is mentioned in other court records.

Improperly sealed documents appear to be a problem in New Mexico’s federal court, as outlined by Jeff Proctor, writing in New Mexico In Depth. He found a pattern and practice by prosecutors and public defenders to improperly seal documents in federal criminal cases, contrary to local and federal rules on sealing procedures. Baiz is a public defender.

Who was Llewyn Jose Platero?

Llewyn Platero, 36, of To’hajilee and the Pueblo of Nambe, was a family man who loved his five children. He was an artist like his father.

Photo of Llewyn Platero sitting in a booth.
Llewyn Platero

“Llewyn was such a loving and selfless man, with a big personality and an even bigger voice. Family meant everything to Llewyn, and he was the protector…the linchpin,” according to his obituary.

Family was extremely important to Platero and he was his family’s protector. He had four children, Joshua Platero, Llewyn Platero Jr., Corey Platero and Zahmarra Platero, and is also survived by his partner Candace Ruben.

“His laughter was contagious and his drive and motivation to provide for his family was inspiring. He loved to joke around, and enjoyed cooking, fishing, and drawing,” according to his obituary.

Like his father who preceded him in death, Ernest Mirabal, Llewyn Platero was a great artist.

“He always had the best advice for any situation. No matter the time or circumstance, he was always there to guide his siblings,” according to his obituary.

He is also survived by his mother, Jackie Platero, sisters Miranda Simmons, Michelle Kelewood, Nakiva Mirabal, Paige Loretto, Khiah Long, Khaleah Long, and Kharalius Long and his brothers, Michael Kelewood, Khiry Kelewood, Natanni Mirabal, and Austin Long III.

“Everyone looked up to him because he motivated everyone he came in contact with; he made everyone want to be better,” according to his obituary.

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Competency raised for Smith Lake man with mindset of a 5-year-old child

Wheeler Cowperthwaite

• Eric Garcia said he stabbed R.L. repeatedly with a knife during an interrogation
• His attorney wrote he has the mindset and cognitive ability of a 5-year-old child
• FBI Agent Mark Spencer made no mention of Garcia’s diminished mental capacity when describing his interrogation

See the case write-up

SMITH LAKE, N.M. — A Smith Lake man’s murder case is on pause after his attorney raised competency and wrote his client has the cognitive ability of a 5-year-old child.

FBI Agent Mark Spencer charged Eric Garcia, 40, with an open count of murder for the stabbing death of a man identified as R.L. in court documents, on March 9, 2021.

One day after Garcia’s initial appearance on March 15, 2021, and Magistrate Judge Jerry Ritter ordered him held without bail pending a detention hearing, his attorney, Lucas Babycos, filed a motion for Garcia to be evaluated for his competency.

“Counsel has reason to believe that the defendant has been formally diagnosed with a severe form of intellectual disability,” Babycos wrote.

He wrote that Garcia has the mindset and cognitive abilities of a 5-year-old child and that he cannot effectively consult with him, nor can Garcia assist in his own defense.

“Defendant has no concept of what is occurring, or the magnitude of the allegations brought forward against him,” Babycos wrote.

Babycos and prosecutor Allison Jaros agreed to a competency evaluation by Julie Brovko or that he be sent to the Bureau of Prisons for an evaluation, he wrote.

Magistrate Judge Laura Fashing granted the motion the same day, according to the docket.

The next day, March 17, Fashing held a hearing on the case and Babycos told her he had “concerns” with Garcia remaining “at facility,” according to the minutes. Fashing ordered the case be stayed until the competency evaluation is complete.

No further court hearings are set.

The stabbing

Garcia stabbed R.L. repeatedly with a knife on March 9 after being told to leave R.L.’s house, after R.L. grabbed him.

Navajo Police Department officers initially received a call at 12:44 a.m., March 9, 2021. for a person laying on the floor of a house in Smith Lake, bleeding, Spencer wrote in an affidavit for a criminal complaint.

When officers arrived, they found R.L., YOB 1957, bleeding from the chest, abdomen and neck. Paramedics declared him dead 35 minutes later, at 1:19 a.m, Spencer wrote.

Long Canyon on the east side of NM Hwy. 371, southeast of Crownpoint, 35.6217 -108.1003, McKinley County, New Mexico, 18 May 2014. Photo by Patrick Alexander/Flickr.

A woman identified by the initials P.E., and referred to as Witness 1, told investigators she, R.L. and Garcia had been drinking inside the house. R.L. asked Garcia to leave “and a conflict happened.” Garcia had a knife and stabbed John Doe. P.E. ran outside, ran into another woman identified as M.L. and told her to call the police, he wrote.

M.L. told investigators she heard noises and went outside. P.E. told her to call the police. She went to the house and saw Garcia standing over R.L., left, told another family member what happened and then called the police, Spencer wrote.

Navajo police learned that Garcia lived a half-mile away, across the main road and knocked on his door, he wrote.

“GARCIA opened the door and had what appeared to be blood his hands, pants, and boots,” Spencer wrote. “GARCIA was taken into custody by NPD.”

FBI agents contacted a magistrate judge for an oral search warrant and found a bloody knife in a search of his house, he wrote.

FBI and Navajo Nation Police officers interrogated Garcia at the Crownpoint Police Department after Garcia waived his Miranda rights, Spencer wrote.

Spencer made no mention in his affidavit if it seems like Garcia has any cognitive issues, or the mindset of a 5-year-old child.

Defendants must “knowingly and intelligently” waive their Miranda rights, including the rights to remain silent and right to counsel.

In Garner v. Mitchell, a 2007 appeal in the Sixth Circuit Court of Appeals, the court found that “petitioner’s waiver of his Miranda rights was invalid because testing demonstrated that the petitioner’s mental incapacity rendered him unable to fully comprehend the warnings and his right to remain silent.”

Spencer wrote that Garcia said he was drinking with R.L. and P.E. outside by the trees, and then moved into the house. Garcia helped to make dinner and R.L. gave him a knife to peel the potatoes. At some point, R.L. told him to leave and Garcia did not want to, he continued to tell him to leave and they started yelling at each other.

“John Doe grabbed GARCIA’s arms and tried to get him out of the house,” Spencer wrote. “GARCIA had the knife from peeling the potatoes in his pocket and pulled it out and stabbed John Doe in the chest area. The next stab was to the neck and then continued stabbing John Doe in the chest and back. GARCIA left and went home.”

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Eric Garcia: R.L., YOB 1957 —3-9-2021

 

Summary

On March 9, 2021, after being asked to leave the house of neighbor R.L. in Smith Lake, and then grabbed by R.L., Eric Garcia grabbed a knife R.L. gave him to peel potatoes and stabbed him repeatedly in the chest and neck, FBI Agent Mark Spencer wrote in an affidavit for a criminal complaint.

The case has been stayed after Garcia’s attorney raised competency and wrote that Garcia has an extreme intellectual disability and the mindset and cognitive ability of a 5-year-old child. Garcia is being held without bail.

The incident

Navajo Police Department officers initially received a call at 12:44 a.m., March 9, 2021. for a person laying on the floor of a house in Smith Lake, bleeding, FBI Agent Mark Spencer wrote in an affidavit for a criminal complaint.

When officers arrived, they found R.L., YOB 1957, bleeding from the chest, abdomen and neck. Paramedics declared him dead 35 minutes later, at 1:19 a.m, Spencer wrote.

Long Canyon on the east side of NM Hwy. 371, southeast of Crownpoint, 35.6217 -108.1003, McKinley County, New Mexico, 18 May 2014. Photo by Patrick Alexander/Flickr.

A woman identified by the initials P.E., and referred to as Witness 1, told investigators she, R.L. and Eric Garcia, 40, had been drinking inside the house. R.L. asked Garcia to leave “and a conflict happened.” Garcia had a knife and stabbed John Doe. P.E. ran outside, ran into another woman identified as M.L. and told her to call the police, he wrote.

M.L. told investigators she heard noises and went outside. P.E. told her to call the police. She went to the house and saw Garcia standing over R.L., left, told another family member what happened and then called the police, Spencer wrote.

Navajo police learned that Garcia lived a half-mile away, across the main road and knocked on his door, he wrote.

“GARCIA opened the door and had what appeared to be blood his hands, pants, and boots,” Spencer wrote. “GARCIA was taken into custody by NPD.”

FBI agents contacted a magistrate judge for an oral search warrant and found a bloody knife in a search of his house, he wrote.

FBI and Navajo Nation Police officers interrogated Garcia at the Crownpoint Police Department after Garcia waived his Miranda rights, Spencer wrote.

Spencer described the interrogation of Garcia:

“GARCIA stated that he was drinking at John Doe and Witness 1 ‘s house, located at 22 52 Rte. 49, Smith Lake, NM. They started drinking outside by the trees but eventually went to the house. GARCIA helped make some food and John Doe gave GARCIA a sharp knife to peel the potatoes. After a time, John Doe told GARCIA to leave. GARCIA did not want to leave. John Doe continued to tell GARCIA to leave but GARCIA did not want to. John Doe and GARCIA began yelling and cussing at each other. John Doe grabbed GARCIA’s arms and tried to get him out of the house. GARCIA had the knife from peeling the potatoes in his pocket and pulled it out and stabbed John Doe in the chest area. The next stab was to the neck and then continued stabbing John Doe in the chest and back. GARCIA left and went home.”

Spencer charged Garcia with an open count of murder.

Competency

Magistrate Judge Jerry Ritter ordered Garcia held without bail on March 15, 2021 at his initial appearance and set a formal detention hearing for March 17, according to court records.

On March 16, Garcia’s attorney. Lucas Babycos, filed a motion for Garcia to be evaluated for his competency.

Babycos wrote that Garcia has been formally diagnosed with a severe form of intellectual disability, he has the mindset and cognitive ability of a 5-year-old child.

“Defendant has no concept of what is occurring, or the magnitude of the allegations brought forward against him,” Babycos wrote.

Babycos wrote that he cannot effectively consult with his client, nor can Garcia assist in his own defense.

Babycos and federal prosecutor Allison Jaros agreed a competency evaluation should be conducted by Julie Brovko and, in the alternative, he asked that Garcia be sent to a Bureau of Prisons facility to be evaluated, he wrote.

Magistrate Judge Laura Fashing granted the motion the same day, according to the docket.

The following day, Fashing held a hearing and Babycos told her he has “concerns” with Garcia remaining “at facility,” according to the minutes. Fashing ordered the case be stayed until the competency evaluation is complete.

Spencer made no mention in his affidavit if it seemed, during the interrogation, like Garcia had any cognitive issues, or the mindset of a 5-year-old child.

Defendants must “knowingly and intelligently” waive their Miranda rights, including the rights to remain silent and right to counsel.

In Garner v. Mitchell, a 2007 appeal in the Sixth Circuit Court of Appeals, the court found that “petitioner’s waiver of his Miranda rights was invalid because testing demonstrated that the petitioner’s mental incapacity rendered him unable to fully comprehend the warnings and his right to remain silent.”

No further court hearings are set.

View the case files on Document Cloud, Google Drive or Court Listener.

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Competency raised for Smith Lake man with mindset of a 5-year-old child

Joshua Gutierrez pleads to voluntary manslaughter for To’Hajiilee shooting

Andrew Martinez
  • Joshua Gutierrez  pleaded guilty ahead of a grand jury indictment
  • The plea sets his sentence at 12 years, but final acceptance is at the discretion of the sentencing judge
  • He pleaded guilty to charges of voluntary manslaughter and discharging a firearm for killing Llewyn Platero, 36

See new and past stories or the case write-up

ALBUQUERQUE, N.M. — A To’Hajiilee man pleaded guilty Thursday, Oct. 15, 2020, in federal court to voluntary manslaughter and discharging a firearm for fatally shooting another man in an early-morning incident on March 29, 2020, on the reservation.

Joshua Gutierrez, 21, appeared via Zoom from a Cibola County detention center before Magistrate Judge Paul Briones who accepted Gutierrez’s guilty plea to a criminal information and set sentencing before a District Court judge at an undetermined time.

According to the plea deal, it is binding and Gutierrez will be sentenced to 12 years. Final acceptance of the plea was deferred until sentencing by the district court judge, according to the form minutes.

Federal agents charged Gutierrez with murder in the death of Llewyn Platero, 36, on March 30, and Gutierrez has been in detention since.

The Route 66 Casino. Photo by Ken Lund/Flickr. CC-BY-SA

Gutierrez was staying at his girlfriend’s house on March 29 in To’Hajilee when guests of his girlfriend’s father including Platero, identified as “John Doe” in charging documents, and Platero’s brother, identified as “MK” began to scuffle, Assistant U.S. Attorney Allison Jaros said in court.

Jaros signed the plea deal.

“My girlfriend entered the room and told them to leave,” Jaros said, reading aloud the facts of the case from Gutierrez’s point of view. “Shortly thereafter I armed myself with a handgun and began walking down the hallway. John Doe exited the room. As we passed each other in the hallway, John Doe swung at me. I shot John Doe in the chest.”

Gutierrez pointed the firearm at MK and another witness, JL, telling them, “I’ll shoot you too!” according to MK, FBI agent Dibiassi Robinson’s affidavit for a criminal complaint alleged. JL allegedly told MK “he’ll do it!”

MK and JL drove Platero toward Albuquerque, dialing 911 and stopping at the Route 66 Casino, according to Robinson.

Gutierrez “fled” the house on foot, Robinson wrote, and was found at his own home 1 1/2 miles away.

Another man, JG, told Robinson that Gutierrez “confided in him that he had shot DOE,” he wrote.

“JG told GUTIERREZ to ‘lay down, the cops will be here,'” Robinson wrote.

After being read his Miranda rights, Gutierrez allegedly told investigators he shot John Doe because he attempted to “assault” him and that the gun he used was at JG’s house. A .380 caliber pistol and one spent cartridge were found at that house.

Gutierrez’s plea deal waives any claim of self-defense, Jaros said.

When Briones asked Gutierrez if he felt he had enough time to talk about the case with his public defender, Sylvia A. Baiz, Gutierrez said, “Yeah, somewhat.”

Briones asked Gutierrez several additional questions about Baiz’s representation in which Gutierrez responded positively. With the plea deal, Gutierrez waives any appeal attempts except on the grounds of his representation.

Baiz said Gutierrez reached the plea deal ahead of a grand jury indictment deadline, which she said would have brought additional charges against Gutierrez.

Jaros said Platero’s family listened into the hearing, and would speak at sentencing.

Gutierrez’s next hearing was not scheduled at the conclusion of the plea hearing.

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Wheeler Cowperthwaite contributed to this report.

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Judge finds Jansen Peshlakai a danger to the community and won’t release

Wheeler Cowperthwaite

• Judge denies Jansen Peshlakai‘s bid for release
• Peshlakai showed no elevated risk from the coronavirus

See the case write-up

ALBUQUERQUE, N.M. — Jansen Peshlakai will continue to be housed in the private Cibola County Correction Center after a federal judge found him to be a danger to the community and that the coronavirus did not pose enough of a specific threat to him.

Shiprock. Photo by Mobilus In Mobili/Flickr

According to minutes from the June 4, 2020 hearing, conducted via Zoom, Peshlakai’s attorney, Edward Bustamante, asked he be released to the third-party custody of his sister in Oklahoma.

Federal prosecutor Allison Jaros provided an update on the status of coronavirus cases in the Cibola County Detention Center and asked Peshlakai remain in jail, according to the minutes.

According to the minutes, U.S. Marshal Deputy G. McCoy “provides information re: COVID-19 cases, status of employee’s health at Cibola and outlines medical treatment defendants receive upon entry/release from center.”

Jaros brought one exhibit, entered onto the record, but it was not uploaded to PACER and the minutes do not state what it was.

At the end of the 45-minute hearing, District Judge Judith Herrera ordered Peshlakai continue to be held as a danger to the community, according to the minutes.

“Court finds defendant has not shown there is an elevated risk to him in contracting COVID-19, outlines reasons and denies request for release,” the minutes state. “Ms. Jaros to submit order”

Peshlakai allegedly ran down 20-year-old Dakota Whitehat on July 13, 2018. Whitehat was in a vehicle that stopped because Peshlakai was fighting with his wife on the side of the road and, according to one report, screaming for help, according to court documents. Read more about the case in the write-up.

A grand jury indicted Peshlakai on a charge of second-degree murder three months later, on Oct. 2. 2018.

Peshlakai’s competency to stand trial was an issue from the start of the case and he was found not competent on June 14, 2019, before being rehabilitated and found competent on March 20, 2020, his attorney, Edward Bustamante, wrote in a motion for his release.

Jaros opposed Bustamante’s request.

The Cibola County Correction Center, and the company that runs it, CoreCivic, have come under scrutiny because of its handling of the coronavirus pandemic.

In a March 30 response to the United States Marshals Service, Cibola County Detention Center Warden Luis Rosa Jr. wrote a vague letter that the facility is following proper guidelines and instituting social distancing within the facility.

That comes in stark contrast to reporting by Jeff Proctor at New Mexico In Depth. Proctor wrote that inmates had to sign a waiver before receiving face masks.

According to a May 12 filing by Jaros, two federal inmates have tested positive for the coronavirus. They were transferred from Otero County in early May, 2020.

No further hearings are scheduled.

The Cibola County Correction Center allegedly forced inmates to sign waivers before giving them face masks, according to Jeff Proctor reporting in New Mexico In Depth.

Do you have information about this case? NM Homicide needs your assistance. Please fill out this form or contact us.

See all the documents this case on Google Drive or Document Cloud. View the docket on CourtListener.com.

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Jansen Peshlakai requests release because of the coronavirus after competency determination

Wheeler Cowperthwaite

See the case write-up

ALBUQUERQUE, N.M. — Jansen Peshlakai is asking a federal judge to release him to a halfway-house pending trial because of the coronavirus pandemic.

Peshlakai allegedly ran down 20-year-old Dakota Whitehat on July 13, 2018. Whitehat was in a vehicle that stopped because Peshlakai was fighting with his wife on the side of the road and, according to one report, screaming for help, according to court documents.

Shiprock Pinnacle. Photo by DiAnn L’Roy/Flickr

A grand jury indicted Peshlakai on a charge of second-degree murder three months later, on Oct. 2. 2018.

Peshlakai’s competency to stand trial was an issue from the start of the case and he was found not competent on June 14, 2019, before being rehabilitated and found competent on March 20, 2020, his attorney, Edward Bustamante, wrote in a motion for his release.

He was then returned to New Mexico on April 17, 2020, and taken to the Cibola County Correctional Center outside Milan, a private jail run by CoreCivic, Bustamante wrote.

Peshlakai previously appealed the initial order that he be held without bail. It was denied. Because of the coronavirus pandemic and Peshlakai being transferred, Bustamante filed the new motion for release on April 20, 2020.

“Jansen Peshlakai is an at risk detainee due to his permanent closed head injury and his course of medications that make him vulnerable to any health threat while detained,” Bustamante wrote.

He asked that his client be released to his daughter, Jennifer Peshlakai, in Oklahoma, or his mother, in Churchrock.

Prosecutor Allison Jaros wrote in a response, dated April 23, 2020, that Bustamante did not argue that his client is no longer a flight risk or a danger to the community and that the pandemic would not make it less likely he would violate court orders and drink or harm others if released from custody.

“Defendant’s mental condition has improved since his incarceration, likely due to his forced sobriety,” Jaros wrote.

According to Peshlakai’s own doctor, he requires “24/7” supervision for safety, food preparation, medication administration and assistance with other basic daily activities, she wrote.

Cibola County Detention Center badge
Cibola County Detention Center badge

“The COVID-19 pandemic simply has no bearing on whether conditions of release can reasonably assure the defendant’s appearance in court and the safety of the community,” Jaros wrote.

She wrote that Peshlakai is also not particularly at risk from the coronavirus, citing a New York case where a man with dementia and a history of strokes and heart attacks was denied pre-trial release during the pandemic.

“It would be pure speculation for the Court to presume that Defendant’s underlying conditions pose a greater risk to his safety than if he was released back into the public, where he could resume drinking,” Jaros wrote.

She wrote that when he was arrested, he also had three outstanding warrants. One was a New Mexico probation violation case, although she did not specify if it was federally issued or a state case, and two for failing to appear in court in Oklahoma.

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Judge gives Sanostee man minimum sentence for brother’s death in DWI crash

Wheeler Cowperthwaite
  • Tavis Washburn will spend just under six years in prison for killing his brother and injuring his 2-year-old son in the crash
  • The binding plea deal mandated a sentence of 6 to 10 years and without it, Washburn faced a minimum mandatory sentence of 10 years
  • He had a blood-alcohol level of 0.258 when he crashed, over three times the legal limit, while driving 79-85 mph
  • A judge sent Washburn back to jail, prior to sentencing, after he began drinking excessively at a halfway house

Read the full case write-up here

SANTA FE, N.M. — Tavis Washburn will spend just under six years in prison after a federal District Court judge sentenced him to the minimum allowed under a plea deal for killing his brother in drunk driving crash.

District Court Judge Martha Vazquez sentenced Washburn, 27, on March 13, 2020, to 71 months in prison, just under six years.

According to court documents, the crash killed Orlando Wadsworth, 37, of Sanostee, severely injured Washburn’s 2-year-old son and injured a third man, only identified as A.J., driving the truck Washburn hit, on Feb. 15, 2018. Wadsworth had to be extricated from the passenger seat of the red Kia Washburn was driving. Although he was flown to a hospital, he died from his injuries. Washburn had a blood-alcohol level of 0.258 after the crash.

Washburn previously pleaded guilty in front of Magistrate Judge Kirtan Khalsa on July 12, 2019, who deferred final acceptance of the plea until sentencing in front of Vazquez, during a 27-minute hearing, according to minutes from the plea hearing.

Federal Bureau of Investigations Agent Kalon Fancher charged Washburn 10 months after the crash, on Oct. 24, 2018. On Nov. 13, 2018, federal Magistrate Judge Jerry Ritter ordered Washburn released on pretrial release at a halfway house in Albuquerque. Washburn was later arrested sometime after Dec. 2, 2019, after he was found, twice, to have been heavily drinking.

Federal prosecutor Allison Jaros did not request a specific sentence, other than within the range of six to 10 years allowed under the plea deal, while Washburn’s attorney, Alejandro Fernandez, asked for the minimum in a sentencing memorandum dated Oct. 21, 2019.

According to the sentencing minute sheet, Washburn addressed the court, as did the “Victim’s representative.” The entire hearing lasted one hour and two minutes. Neither the minutes nor the judgement state why Vazquez sentenced Washburn to the minimum allowed under the binding plea deal, or why she accepted the binding plea deal.

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Joshua Gutierrez: Llewyn Platero — 3-29-2020

 

Summary

Joshua Gutierrez, 21, of To’Hajiilee, allegedly shot and killed Llewyn Platero, 36, on March 29, 2020, at a house on the To’Hajiilee reservation. Although he claimed the man “assaulted him,” the one eye witness did not make the same assertion, according to court documents.

On Oct. 15, 2020, he pleaded guilty to voluntary manslaughter. The plea deal sets his sentence at 12 years. Sentencing has not been set.

The incident

Photo of mesas
To’Hajiilee by Joel/Flickr. CC BY-NC

Federal Bureau of Investigation Agent Dibiassi Robinson was called out to the Route 66 Casino at 5:29 a.m., March 29, 2020, for a possible homicide, although a Navajo Nation criminal investigator told him the alleged killing took place on the To’Hajiilee reservation.

Robinson wrote in an affidavit for a criminal complaint that he spoke to two witnesses at the casino.

When Gutierrez spoke to investigators, he alleged he was attacked by Llewyn Platero, 36, he wrote. Platero is not identified in court records and referred to as Doe or John Doe.

Witness JL, at the casino, told investigators that he was at an acquaintance’s house when Platero and another man, identified as MK, started arguing, then fighting. JL and Gutierrez went to school together, Robinson wrote.

“Doe and MK tussled for a few minutes before CP (year of birth 1987) ordered the group to leave the residence,” Robinson wrote. “CP is the current girlfriend of GUTIERREZ.”

Platero and MK stopped briefly, then started “tussling” and being loud again, before Platero and JL headed toward the front door, he wrote.

“JL indicated that as they approached the kitchen GUTIERREZ raised a handgun up, in his right hand, and fired one shot into the chest of DOE,” Robinson wrote. “JL made no mention of an assault or attempted assault by Doe towards GUTIERREZ. While attempting to provide aid to DOE, JL explained that GUTIERREZ told him and MK to get out of the residence ‘or I’ll shoot you too!’ Gutierrez pointed the firearm at the two as he spoke those words.”

Although Robinson wrote that JL “made no mention of an assault or attempted assault by Doe,” he did not write if JL was asked about an alleged assault.

JL and MK placed pressure on the wound, loaded Platero into a car and drove toward Albuquerque. While on the way, JL called 911 while MK drove, he wrote.

They stopped at the Route 66 Casino, Robinson wrote.

MK, at the casino, told investigators that he started arguing and fighting with Doe while at an acquaintance’s house, then CP, Gutierrez’s girlfriend, ordered them to leave, he wrote.

“MK stated DOE left the room and a few seconds later he heard a pop,” Robinson wrote. “MK exited the room and went to the kitchen of the residence where he saw DOE laying on the floor. MK inquired as to what DOE had done and why GUTIERREZ had to shoot DOE. As MK attempted to provide aid to DOE, GUTIERREZ ordered the group to leave the residence ‘or I’ll shoot you too!’ Gutierrez pointed the firearm at the two as he spoke those words. JL informed MK ‘he’ll do it!'”

Robinson alleged Gutierrez “fled” the house, on foot. He was later found at his own house, 1 1/2 miles away.

Another man, JG, told Robinson that Gutierrez “confided in him that he had shot DOE,” he wrote.

“JG told GUTIERREZ to ‘lay down, the cops will be here,'” Robinson wrote.

After being read his Miranda rights, Gutierrez allegedly told investigators he shot John Doe because he attempted to “assault” him and that the gun he used was at JG’s house. A .380 caliber pistol and one spent cartridge were found at that house.

On March 31, 2020, Gutierrez appeared in Federal District Court for his initial appearance and was ordered held without bail.

The autopsy

According to the autopsy report, Platero died from a single gunshot wound. The bullet went through his heart and lungs, causing a “large amount” of bleeding in the chest cavity.

Pathologists Karen Zeigler, a fellow, and Ross Zumwalt, the medical investigator, wrote in the report that there was no soot or gunpowder stippling near the wound or on the clothing and that the firing range is “indeterminate.”

The bullet was recovered from the right back.

“The overall trajectory was front to back, left to right and slightly downward,” they wrote.

Secret records

In a June 24, 2020 unopposed motion for a protective order, federal prosecutor Allison Jaros requested public records, including the autopsy report, be kept secret and be the subject of a strict protective order.

Jaros wrote in the motion that the the agreed-to order would prevent defense attorney Sylvia Baiz from showing the public autopsy report to anyone.

In New Mexico, autopsy reports are public records.

Judge Kirtan Khalsa granted the protective order, despite the fact that autopsy reports are public records.

Improperly sealed

According to the court records, Guteirrez’s attorney, Sylvia Baiz, a federal public defender, appears to have improperly placed her sentencing memorandum under seal. The document does not appear on the federal court docket but is mentioned in other court records.

Improperly sealed documents appear to be a problem in New Mexico’s federal court, as outlined by Jeff Proctor, writing in New Mexico In Depth. He found a pattern and practice by prosecutors and public defenders to improperly seal documents in federal criminal cases, contrary to local and federal rules on sealing procedures. Baiz is a public defender.

Plea

Gutierrez pleaded guilty Thursday, Oct. 15, 2020, in federal court to voluntary manslaughter and discharging a firearm for fatally shooting another man in an early-morning incident on March 29, 2020, on the reservation. He appeared via Zoom from a Cibola County detention center before Magistrate Judge Paul Briones who accepted Gutierrez’s guilty plea to a criminal information and set sentencing before a District Court judge at an undetermined time.

According to the plea deal, it is binding and Gutierrez will be sentences to 12 years. Final acceptance of the plea was deferred until sentencing by the district court judge, according to the form minutes.

Federal agents charged Gutierrez with murder in the death of Llewyn Platero, 36, on March 30, and Gutierrez has been in detention since.

Gutierrez was staying at his girlfriend’s house on March 29 in To’Hajilee when guests of his girlfriend’s father including Platero, identified as “John Doe” in charging documents, and Platero’s brother, identified as “MK” began to scuffle, Assistant U.S. Attorney Allison Jaros said.

“My girlfriend entered the room and told them to leave,” Jaros said, reading aloud the facts of the case from Gutierrez’s point of view. “Shortly thereafter I armed myself with a handgun and began walking down the hallway. John Doe exited the room. As we passed each other in the hallway, John Doe swung at me. I shot John Doe in the chest.”

Gutierrez’s plea deal waives any claim of self-defense, Jaros said.

When Briones asked Gutierrez if he felt he had enough time to talk about the case with his public defender, Sylvia A. Baiz, Gutierrez said, “Yeah, somewhat.”

Briones asked Gutierrez several additional questions about Baiz’s representation in which Gutierrez responded positively. With the plea deal, Gutierrez waives any appeal attempts except on the grounds of his representation.

Baiz said Gutierrez reached the plea deal ahead of a grand jury indictment deadline, which she said would have brought additional charges against Gutierrez.

Jaros said Platero’s family listened into the hearing, and would speak at sentencing.

Joshua Gutierrez sentenced for voluntary manslaughter

District Judge Martha Vazquez sentenced Gutierrez on April 7, 2021, after accepting to be bound by the terms of his plea deal, which gave him a 12-year sentence.

Vazquez had the final discretion of whether to accept or reject the plea agreement proffered by Jaros. Gutierrez originally pleaded guilty on Oct. 15, 2020, to a criminal information charging him with voluntary manslaughter and discharging a firearm in the course of a crime. The firearm charge mandates a 10-year sentence.

He received just two years for killing Platero, 36 and the remaining 10 years on his sentence came from the firearm charge.

Gutierrez apologized to Platero’s family during the hearing and introduced his own family members. Platero’s mother, Jackie Platero, addressed the judge, according to the sentencing minutes. The minutes do not detail what anyone said at the hearing.

In a sentencing memorandum, Jaros justified the binding plea deal’s 12-year sentence, even though it was made over the objections of Jackie Platero, who reportedly told Jaros she wanted Gutierrez to serve a life sentence.

“At the time of the change of plea, she expressed that she was not happy with the plea agreement, which she viewed as too lenient,” Jaros wrote.

Jaros justified the 12-year sentence with Gutierrez’s self-defense claims and the evidence.

“The proposed plea agreement holds Defendant accountable for the death of John Doe and the terrorizing of John Doe’s relatives by requiring Defendant to serve a significant prison sentence,” Jaros wrote.

Who was Llewyn Jose Platero?

Llewyn Platero, 36, of To’hajilee and the Pueblo of Nambe, was a family man who loved his five children and was an artist like his father.

Photo of Llewyn Platero sitting in a booth.
Llewyn Platero

“Llewyn was such a loving and selfless man, with a big personality and an even bigger voice. Family meant everything to Llewyn, and he was the protector…the linchpin,” according to his obituary.

Family was extremely important to Platero and he was his family’s protector. He had four children, Joshua Platero, Llewyn Platero Jr., Corey Platero and Zahmarra Platero, and is also survived by his partner Candace Ruben.

“His laughter was contagious and his drive and motivation to provide for his family was inspiring. He loved to joke around, and enjoyed cooking, fishing, and drawing,” according to his obituary.

Like his father who preceded him in death, Ernest Mirabal, Llewyn Platero was a great artist.

“He always had the best advice for any situation. No matter the time or circumstance, he was always there to guide his siblings,” according to his obituary.

He is also survived by his mother, Jackie Platero, sisters Miranda Simmons, Michelle Kelewood, Nakiva Mirabal, Paige Loretto, Khiah Long, Khaleah Long, and Kharalius Long and his brothers, Michael Kelewood, Khiry Kelewood, Natanni Mirabal, and Austin Long III.

“Everyone looked up to him because he motivated everyone he came in contact with; he made everyone want to be better,” according to his obituary.

See the case documents on Google Drive or Document Cloud

Andrew Martinez contributed to this report

See past stories on this case

Joshua Gutierrez pleads to voluntary manslaughter for To’Hajiilee shooting

Joshua Gutierrez of To’Hajiilee charged with murder for allegedly shooting unidentified Native American man on March 29, 2020

Jansen Peshlakai: Dakota Whitehat — 7-13-2018

 

Summary

On July 13, 2018, Jansen Peshlakai allegedly ran over Dakota Whitehat, 20, after some kind of domestic dispute with his wife, on BIA/Navajo/Indian Services Route 13 near Shiprock and Mitten Rock.

He was not charged until three months later when a grand jury indicted him for second-degree murder on Oct. 2, 2018.

In February 2019, his case was placed on hold for a competency evaluation. He was initially found to not be competent, sent to a facility for rehabilitation, and found to be competent on March 20, 2020.

No hearings have been scheduled.

The incident

On July 13, 2018, Dakota Whitehat, 20, was walking down U.S. Highway 491, near Shiprock, when a car picked him up. After turning onto Indian Services Route/BIA Route/Navajo Route 13, the driver stopped because Jansen Peshlakai and his wife appeared to be in a physical fight, according to a deputy field investigation by Barbara Nabors.

Shiprock Pinnacle. Photo by DiAnn L’Roy/Flickr

“Per law enforcement, both the man and the woman of the parked vehicle became aggressive towards the occupants of vehicle one,” Nabors wrote. “For unknown reasons the decedent began walking eastbound on the opposite side of the road.”

Peshlakai allegedly turned his car around and ran down Whitehat, who was 15 to 20 feet off the highway, she wrote.

Federal prosecutor Allison Jaros wrote in an opposition to Peshlakai’s appeal of his detention that the woman, Peshlakai’s wife, was yelling “Help me! Help me!” when Whitehat, and the people who picked him up, came onto the scene.

Jaros’ account differs from that of Nabors, based on what police initially told her.

The man who picked up Whitehat in his truck earlier on the road offered the wife a ride, Jaros wrote.

Whitehat is referred to as “John Doe” in court documents.

According to Jaros:

“She got into the truck to leave,  which angered the defendant. The defendant got into his vehicle, a brown SUV, and drove across the road to where the white truck was parked. The defendant rammed the white truck. Next, the defendant ran over John Doe who was outside the vehicle on foot.”

Several witnesses, including other motorists who stopped, told investigators that Peshlakai allegedly did not try to swerve or slow down to avoid running over Whitehat, Jaros wrote.

“At the time of the collision, it was light outside,” she wrote. “John Doe died from his injuries later that day.”

Peshlakai had been drinking prior to allegedly running over Whitehat, she wrote.

“The defendant’s dangerousness is exacerbated by his alcohol abuse,” she wrote. “The defendant has been charged with alcohol related offenses on at least ten different occasions. He has convictions for public drunkenness and driving under the influence.”

In 2016, he was convicted of assault and battery with a dangerous weapon, she wrote.

Specifically, he was drinking and driving without a driver’s license when he allegedly killed Whitehat, she wrote.

Below is the approximate location of the alleged attack.

Court proceedings

Indictment

In a motion for release, Peshlakai’s attorney, Edward Bustamante, of Albuquerque, wrote that Peshlakai was initially charged in state court and those charges were dropped after he was indicted federally.

According to a search of public state court records, no arrest appears to have been recorded.

Mitten Rock, off of Navajo Route 13 (Indian Services Route 13), New Mexico. Photo by James St. John/Flickr

On Oct. 2, 2018, a federal grand jury indicted Peshlakai on a charge of second-degree murder, although it would not be entered into the court record until Oct. 11, 2018.

Peshlakai immediately retained Farmington attorney Adam Bell once he learned he could be charged with a crime for allegedly running down Whitehat, Bustamante wrote.

Bell then arranged for Peshlakai to surrender to police in Farmington, he wrote.

According to the docket, he surrendered on Dec. 6, 2018 and Bustamante was appointed as his attorney.

On Dec. 13, 2018, federal Magistrate Judge Laura Fashing ordered Peshlakai held without bail. The minutes only contain the notations that the prosecution, defense spoke and that “Officer Galaz” told Fashing of the resources available at a halfway house.

On Jan. 10, 2019, Bustamante appealed the Fashing’s order.

Peshlakai suffered a “serious closed head injury” in 2013, which require him to “ingest a battery of medications to prevent ongoing seizures,” Bustamante wrote.

Before being arrested by agents with the Federal Bureau of Investigations, Peshlakai was scheduled to meet with multiple doctors about his brain injury.

“Subsequent to surrendering federal authorities Mr. Peshlakai has suffered a disruption in his prescribed medications,” Bustamante wrote. “The disruption in prescribed medication is causing at a minimum elevated anxiety in Mr. Peshlakai which in turn exacerbates Mr. Peshlakai’s closed head injury.”

Fashing “expressed concerns” about Peshlakai getting his medication when she ordered him held without bail. Release to a halfway house in Albuquerque would mean he could resume his medical treatment, he wrote.

On Jan. 28, 2019, District Court Judge Scott Skavdahl denied his motion for release, following a hearing the same day.

Competency

On Feb. 7, 2019, Jaros filed a motion to have Peshlakai evaluated for his competency, an issue because of his 2013 head injury.

When Bell was representing Peshlakai, he told prosecutors that he thought his client was not competent to stand trial, she wrote.

She attached a letter given to her by Bell, from one of his doctors, Garett Riggs, of the Northern Navajo Medical Center.

“Mr. Peshlaki’s (sic) injury affected both frontal lobes of the brain leading to impairments of judgement, planning, and complex decision making,” Riggs wrote.”He requires 24/7 supervision for safety, medication administration, food preparation, and assistant with basic daily activities.”

Bustamante wrote in a motion to have Peshlakai released, because of the coronavirus pandemic, that Peshlakai was evaluated at a facility in Colorado and found incompetent to proceed on June 14, 2019. He was committed to a Federal Bureau of Prisons facility to be returned to competency.

On March 20, 2020, a facility in North Carolina concluded that Peshlakai was competent to proceed to trial and he was returned to New Mexico on April 17, 2020, to the Cibola County Correctional Center in Milan.

Jaros wrote in a response to Bustamante’s motion that his condition has improved since he was initially arrested “likely due to his forced sobriety.”

“The most recent evidence regarding Defendant’s mental state indicates that Defendant has recovered well from his head injury and that his epilepsy is currently under control,” she wrote.

A Bureau of Prisons psychologist wrote that his brain has recovered “well” from the injury and his “current cognitive profile does not reflect evidence of brain injury,” Jaros wrote.

Release request amid coronavirus

On April 20, 2020, Bustamante filed a motion for an expedited hearing to have Peshlakai released because of the threat of the coronavirus.

Peshlakai is an at-risk detainee because of his permanent closed head injury and all his medications, he wrote.

He asked that his client be released to his daughter, Jennifer Peshlakai, in Oklahoma, or his mother, in Churchrock.

Jaros wrote in a response that Bustamante did not argue that his client is no longer a flight risk or a danger to the community and that the pandemic would not make it less likely he would violate court orders and drink or harm others if released from custody.

“The COVID-19 pandemic simply has no bearing on whether conditions of release can reasonably assure the defendant’s appearance in court and the safety of the community,” Jaros wrote.

She wrote that Peshlakai is also not particularly at risk from the coronavirus, citing a New York case where a man with dementia and a history of strokes and heart attacks was denied pre-trial release during the pandemic.

“It would be pure speculation for the Court to presume that Defendant’s underlying conditions pose a greater risk to his safety than if he was released back into the public, where he could resume drinking,” Jaros wrote.

She wrote that when he was arrested, he also had three outstanding warrants. One was a New Mexico probation violation case, although she did not specify if it was federally issued or a state case, and two for failing to appear in court in Oklahoma.

Release request denied

District Judge Judith Herrera held a hearing on June 4, 2020, and denied Peshlakai’s request for release.

According to minutes from the June 4, 2020 hearing, conducted via Zoom, Bustamante asked for his client to be released to the third-party custody of his sister in Oklahoma.

Jaros provided an update on the status of coronavirus cases in the Cibola County Detention Center and asked Peshlakai remain in jail, according to the minutes.

According to the minutes, U.S. Marshal Deputy G. McCoy “provides information re: COVID-19 cases, status of employee’s health at Cibola and outlines medical treatment defendants receive upon entry/release from center.”

Jaros brought one exhibit, entered onto the record, but it was uploaded to PACER and the minutes do not state what it was.

At the end of the 45-minute hearing, District Judge Judith Herrera ordered Peshlakai continue to be held as a danger to the community, according to the minutes.

“Court finds defendant has not shown there is an elevated risk to him in contracting COVID-19, outlines reasons and denies request for release,” the minutes state. “Ms. Jaros to submit order.”

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See all the documents this case on Google Drive or Document Cloud. View the docket on CourtListener.com.

Past stories

Judge finds Jansen Peshlakai a danger to the community and won’t release

Jansen Peshlakai requests release because of the coronavirus after competency determination

Tavis Washburn: Orlando Wadsworth — 2-15-2018

See the case documents on Google Drive, Document Cloud or locally

Summary

On Feb. 15, 2018, Tavis Washburn, 27, crashed into a truck pulling out of the Littlewater Express on Highway 491 near Littlewater, while speeding. The crash killed his brother, Orlando Wadsworth, and severely injured his 2-year-old son. Eight months later, Federal Bureau of Investigations agents charged him with involuntary manslaughter and assault on a minor resulting in serious bodily injury. When his blood was tested at the hospital, he had a blood-alcohol level of 0.285, over three times the legal limit.

On July 12, 2019, Washburn pleaded guilty to a criminal information, filed the same day, charging him with involuntary manslaughter and child abuse. According to his plea deal, his sentence would range from just under 6 years (71 months) and 10 years, the minimum mandatory sentence if he had been convicted of assault on a minor resulting in serious bodily injury.

On Feb. 13, 2020, federal District Court Judge Martha Vazquez sentenced Washburn to the minimum under the plea, just under six years, followed by supervised release for three years.

The incident

Shiprock Pinnacle. Photo by DiAnn L’Roy/Flickr

On Feb. 15, 2018, Tavis Washburn went to see his brother, Orlando Wadsworth, at his house in Sanostee to “have some drinks,” he told investigators, according to an affidavit for a criminal complaint written by FBI Agent Kalon Fancher.

Wadsworth wanted to go to Shiprock to pick up his EBT card, or benefits debit card, so Washburn buckled his 2-year-old child into a child seat in the back of a red Kia and drove to Shiprock. When they finished, Washburn wanted to pick up his “common law wife” from her work at the Littlewater Express gas station, so he sped, an estimated 75 yo 85 mph in a 45-mph zone, Fancher wrote.

One woman, only identified by the initials L.B., told Navajo Nation Criminal Investigator Wilson Charley that she was going about 65 mph when a red Kia passed her, then hit the raised center concrete median, causing sparks to come from the tire, around 10 p.m., Charley wrote in an investigation report.

The red car crested a little hill, then five seconds later, she came on the crash scene. A black truck “was being thrown across the northbound lane and it landed on the east side of the roadway,” Charley wrote.

L.B. stopped and ran to the red car and found two men in the front seats and a baby in the back. Washburn, whom she identified as a man with long hair, was trying to get out of the driver’s side window. The 2-year-old, Washburn’s child, was crying, while Washburn kept yelling he was OK, then started yelling for his brother after he got out, Charley wrote.

According to L.B.’s account, a woman, later identified as K.C., came up and started yelling that it was car her, her husband and her baby involved in the crash, then removed the baby from the car seat while Washburn argued with her, Charley wrote.

Navajo Nation Police Officer Ty Joe arrived at the scene of the crash and found Washburn walking around, his face covered in blood. Washburn was obviously intoxicated and smelled like alcohol. He denied driving and claimed another man, only identified by the first initial “H,” was driving and “took off running after the crash,” Charley wrote.

The rest of the man’s name is redacted.

Joe saw Wadsworth was pinned against the passenger-side door frame and it had to be cut for him to be removed and the 2-year-old had been removed from his car seat prior to police or medics arriving, Charley wrote.

While Joe was trying to render medical attention to Wadsworth when Washburn walked away and later returned in a black Dodge Avenger and claimed he was injured. Joe told the person driving him to drive him to the Northern Navajo Medical Center, Charley wrote.

The child was flown to the hospital first, followed by Wadsworth, because he had to be extricated. The 2-year-old child suffered a lacerated liver, a collapsed lung, a left arm fracture and a broken left leg, he wrote.

According to a sentencing memorandum, K.C. told prosecutors that their son’s left leg bones “have not grown at the same rate as the right leg bones, resulting in his hips being uneven.” However, “it is not clear” if the child will have his future movement ability affected or if he will require more treatment.

Washburn’s blood-alcohol content, after the crash, was 0.285, over three times the legal limit, according to the memo.

Washburn was charged on Oct. 24, 2018, eight months following the crash. On Nov. 18, 2018, federal Magistrate Judge Jerry Ritter ordered Washburn be released into the custody of a halfway house.

The other driver

The person in the black truck, a GMC Sierra, that Washburn hit, identified in court documents by the initials A.J., told Charley and Fancher that the night of the crash, he got off work at 3 p.m. He ran a few errands in Farmington before driving back to the Navajo reservation and stopped for gas in Shiprock before driving south to Sanostee, around 9 p.m., Charley wrote.

A.J. told investigators he remembered driving past the weigh station, 2-3 miles north of the Littlewater Express Store, and nothing after that, other than being woken up and his mother taking him to the hospital in Shiprock, he wrote.

However, he admitted to drinking three 12-ounce cans of Bud Light before he was crashed into, Charley wrote.

According to an crash reconstruction report, requested by Fancher and done by Officer Stanley Lundy, AJ was driving at 31 mph at the time of impact while Washburn was driving at 85 mph.

According to a sentencing memorandum, Lundy and another accident reconstructionist, disagreed “at the relative fault” of AJ in the crash, although Lundy’s report makes no overt judgement to fault.

Two more witnesses

Two people, S.B. and K.C., the mother of the 2-year-old/Washburn’s girlfriend (also referred to as his common-law wife and as his wife in court documents)t, were working at the Littlewater Express Store the night of the crash, Charley wrote.

S.B. told Charley that around 9:30 p.m., K.C. was on the phone with her boyfriend, Washburn, and worried he was drinking with their son. Around 10 p.m., the last customer left. It was A.J., who got into his black truck. Her boss called and asked about him and she said he was just leaving the store, he wrote.

“(S.B.) said she was looking out the store window when she noticed a car traveling southbound at a very high rate of speed,” Charley wrote. “(S.B.) said it was almost instantly when the car hit the black truck as it was pulling out of the store’s parking lot.”

Still on the phone with her boss, she screamed it was AJ who was involved in the crash. K.C. ran out of the store, asked S.B. where the crash was, then ran to the crash site. S.B. would see and hear a woman at the site of the crash, yelling for help, Charley wrote.

“(S.B.) said she went back into the store to get her phone and when she came back out (K.C.) was running back to the store yelling she couldn’t make it over the fence,” Charley wrote. “(K.C.) was yelling that it was her car and her baby.”

S.B. saw K.C. run to the crash scene. She then started banging on the car and cussing at someone before opening the door and slapping her boyfriend. She brought the baby back into the store after being driven by someone with the initials S.P., (who name is otherwise redacted in the documents,) Charley wrote.

S.B. went to the crash scene with her boss and saw K.C. in someone’s car with her baby. S.B. called for medics and told them the baby needed medical attention. Washburn followed K.C. around at the crash scene, and K.C. yelled at him, saying he was the cause of “all this,” Charley wrote.

When the medics did find the boy, he was flown to the hospital with severe injuries.

S.B. took K.C. to the San Juan Regional Medical Center and, during the drive, she asked K.C. about the other two adults in the car, he wrote.

“(S.B.) said (K.C.)’s boyfriend was the driver because no one ran from the scene as she witnessed the crash in front of her,” Charley wrote.

Charley’s interview with K.C. makes no mention of her pulling her baby out of the car or not bringing him to medics.

Fatal injuries

Orlando Jerry Wadsworth, of Sanostee, 37 when he died, was born on Oct. 6, 1980 in Shiprock and he died on Feb. 15, 2018, according to his obituary. No more biographical information was listed.

Wadsworth’s right arm was completely broken, as was his left leg. He suffered “massive trauma” to the back of the head, according to a field investigation conducted by the Office of the Medical Investigator.

After being sealed in a body bag on Feb. 16, 2018, his family agreed for him to be an organ donor. The following day, donor services informed the deputy field investigator that the Desert View Funeral Home embalmed him before they could harvest any organs, according tot he field investigation.

Although he was embalmed before an autopsy could happen, the FBI asked for it to still be done, according to the field investigation.

According to the autopsy report, Wadsworth has tears in his right lung, spleen and liver, which would have caused massive internal bleeding resulting in his death.

The plea

According to court records, prosecutors filed a criminal information charging Washburn with involuntary manslaughter and child abuse on July 12, 2019, the same day as his plea hearing. The latter charge was a downgrade from assault on a minor resulting in serious bodily injury charge initially levied by Fancher.

Washburn pleaded guilty to the two charges, involuntary manslaughter and child abuse, although Magistrate Judge Kirtan Khalsa deferred final acceptance of the plea until sentencing in front of a District Court judge during a 27-minute hearing, according to minutes from the plea hearing.

According to the plea agreement, Washburn’s sentence would be between just under six years (71 months) and 10 years, an agreement between the prosecution and defense that is binding on a judge who accepts it. Prosecutor Allison Jaros signed the plea.

History of drunk driving

According to Jaros’ sentencing memo, Washburn had previously been arrested for drunk driving in June 2017, while his wife and their child were with him. A breath test for his blood-alcohol level found it to be between 0.15 and 0.17.

“Defendant’s wife told police that she advised Defendant not to drive, but did not want to argue with him,” Jaros wrote.

San Juan County Sheriff’s deputies charged him with child abuse, aggravated DWI, driving on a suspended license and open container of alcohol in a vehicle, according to an Aztec Magistrate Court docket.

His 2017 drunk driving case was initially referred to pre-prosecution diversion, on June 29, 2017, but by Nov. 2, 2017, it was terminated and he waived his right to a preliminary hearing. The case was then bound over to District Court, according to the docket.

According to the Farmington/Aztec District Court docket, he pleaded guilty to drunk driving and child abuse, but the latter charge was subject to a conditional discharge.

 

Sentencing arguments

Federal prosecutor Allison Jaros did not request a specific sentence, other than federal District Court Judge Martha Vazquez accept the plea agreement, with the range of 6-10 years imprisonment.

Jaros wrote in a sentencing memorandum, submitted Nov. 22, 2019, that the plea allowed Washburn to avoid a minimum sentence of 10 years for a assault on a minor resulting in serious bodily injury charge.

The involuntary manslaughter charge carried a maximum sentence of eight years.

Although the evidence against Washburn was strong, “neither victim favored prosecution,” she wrote.

He was not charged for injuries to A.J., in the vehicle he hit, according to court documents.

Although two of the three victims were related to Washburn, and those were the ones he was charged for hurting and killing, one was dead and the other was 2 at the time of the crash.

Jaros did not write how a dead man and a toddler could favor prosecution.

The two accident reconstructionists disagreed on A.J.’s role in the crash and he was never charged because of that disagreement, she wrote.

Jaros wrote that the previous conviction for drunk driving, and that his child was previously in the car during a drunk driving incident, were aggravating factors to be considered.

Washburn’s attorney, Alejandro Fernandez, wrote in a sentencing memorandum submitted Oct. 21, 2019, that the crash plays in Washburn’s mind in a “relentless loop.”

Fernandez requested a sentence of 71 months, just under six years, the minimum allowed under the plea deal.

Washburn wrote in an undated letter to the court that he was at the La Pasada Halfway House, had been there for a year, and was working two jobs to provide for his 3-year-old son and a newborn.

“The day the accident happened has made a huge impact on me and my family,” he wrote. “I always wished it never happened. My oldest brother was the passenger and is now deceased from the accident. My son being injured hurts me knowing he was part of it. He had fully healed from the injuries and is now back to normal.”

This assertion, that his child is “now back to normal” is contradicted by Jaros’ sentencing memo, that the boy’s left leg bones “have not grown at the same rate as the right leg bones, resulting in his hips being uneven.”

Washburn wrote that he became addicted to alcohol for three years after his mother died, but he no longer misses the feeling or taste and thinks about his family and his future as a father.

“Please give me the least amount of time to serve so I can attend college and also provide for my two boys,” he wrote. “I believe I am a good person. I help those in need, I donate what is needed to strangers and feel good doing so.”

Revocation for drinking

On Dec. 2, 2019, pretrial services asked for the judge to have Washburn arrested after twice tested positive for alcohol.

On Dec. 1, he blew a 0.148 followed by a 0.168 and the following day, he blew a 0.297, according to a petition for action on the conditions of his pretrial release.

The halfway house Washburn had been staying at was no longer willing to serve as his third-party custodian. On Dec. 4, he was remanded into the custody of the U.S. Marshals Service and he waived his right to a preliminary hearing and a detention hearing.

Sentenced

On Feb. 13, 2020, two months after Washburn was arrested for violating the conditions of his release by drinking heavily, federal District Court Judge Martha Vazquez sentenced him to the minimum allowed under the plea deal, just under six years (71 months), followed by supervised release for three years.

According to the sentencing minute sheet, Washburn addressed the court, as did the “Victim’s representative.” The entire hearing lasted one hour and two minutes. Neither the minutes nor the judgement state why Vazquez sentenced Washburn to the minimum allowed under the plea.

 

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