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.
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.
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.
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.
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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.
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.
“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
“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.
ALBUQUERQUE, N.M. — The autopsy reports for the two people killed in a car wreck in October 2018 shows they both had been drinking and consumed methamphetamine before the crash.
Zuni Pueblo, eastern edge. Photo by Joseph Novak/Flickr
Their drinking and methamphetamine use was cited by federal prosecutor Frederick Mendenhall as the reason for the sentence he gave Joey Unkestine in a plea deal: 3 years and 10 months.
Joey Unkestine killed his girlfriend, Katherine Edaakie, his brother, Elison Unkestine and injured Edaakie’s child, referred to in court documents as D.G., when he crashed a 2002 Ford Explorer on Oct. 18, 2018, on Highway 53 on the Zuni Pueblo.
According to the plea agreement and a sentencing memorandum written by Mendenhall, Joey Unkestine’s blood-alcohol level was later measured at 0.36 and he was estimated to be driving between 74 and 93 mph on a 55-mph-limit road.
Because the two people in the car were drinking, their deaths do not warrant a sentence at the top of the sentencing range, citing United States v Lente. However, the child being placed in danger did warrant the lengthier sentence, as did his history with alcohol, Mendenhall wrote in the sentencing memorandum:
The two adult victims in this case had been drinking in the vehicle. Both of their deaths are tragic, but the circumstances of this case suggest an upward departure or variance is not necessarily warranted.
According to Edaakie’s autopsy report, she had a blood-alcohol level of 0.28 and methamphetamine in her system.
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.
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.
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.
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.
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.
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 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.
“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.
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.
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.
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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On July 30, 2015, Jefferson Herrera, 29, and his three brothers went to Richmond Sam‘s house, trying to get him outside to fight and destroying his property. Sam went to a neighbor’s house, got a gun and started shooting. He hit no one the first time he shot, according to court records.
Sam claims he was fired upon first. The people involved, described as being unreliable witnesses, said they never shot first, according to court records.
He then opened fire a second time, after the assailants, including Herrera, were driving away. He may, or may not have, fired the shot that killed him. According to court records, the autopsy report casts doubt that Sam was low enough to the ground, or close enough, for the trajectory of the bullet that killed him, according to court records.
Sam’s lawyer posited that it is possible one of Herrera’s own brothers accidentally shot him while fleeing, according to court records.
Sam was initially charged with second-degree murder and possession of a firearm by a felon, according to court records.
He took a binding plea for involuntary manslaughter with a minimum sentence of 15 months and a maximum of 21. Federal District Judge James Browning gave him the minimum, 15 months, according to court records.
The incident
On July 29, 2015, a group of four men, all brothers, bought some Old English malt liquor and started drinking. The victim’s brother, only identified as JH, told his brothers, one of whom was victim Jefferson Herrera, Richmond Sam owed him $45 for gas money. The debt was accrued several months prior, FBI Agent Ross Zuercherwrote in an affidavit for an arrest warrant.
Near Counselor, NM. Photo by Chris Sale/Flickr. CC BY
“Around midnight of July 30, 2015, the four men arrived at SAM’s residence shouting that he owed JH money, and to pay his debts,” Zuercher wrote. “The men tried to call SAM out of the residence to confront him.”
After Sam refused to come out, they started smashing the windows of the two cars parked at his house.
“The windows were smashed with iron fence posts obtained from the property,” Zuercher wrote. “JH stated that he saw a man, although he could not make out his face, begin to fire live ammunition at the four brothers.”
After being shot at, the men got into their own car and fled. Herrera was driving, he wrote.
“As the vehicle sped away down SAM’s driveway, several more shots were fired at the vehicle,” Zuercher wrote. “One round broke the back window of the vehicle. One of the rounds fired entered the back of John Doe’s neck, and exited the oral cavity. JH stated that he saw his brother, John Doe, slump forward with blood coming out of his mouth. John Doe had made painful moaning noises as he slumped forward.”
The car crashed into a ditch, JH got out of the vehicle, grabbed Herrera from the driver’s seat and put him in the rear.
“JH could not recall where the other two brothers went,” Zuercher wrote.
JH then drove to their mother’s house, four miles away. At 5 a.m. that same morning, Sam surrendered at the San Juan County Sheriff’s Office.
“The rifle was found wrapped in a blanket and placed inside a bush,” he wrote.
In his own statement to officers, Sam said he had been watching a movie when he heard a loud commotion coming from outside, and someone trying to break his door down.
“SAM held the door shut with his body weight,” Zuercher wrote. “While holding the door closed, SAM said that he heard a loud bang that sounded like a gunshot. Eventually the intruders lost interest into gaining access to the residence. SAM said that he heard a vehicle shift into drive, and believed it to be the best chance to escape from his residence.”
Sam told the officers he then ran to his cousin’s house, told him about the intruders and asked for a weapon and his cousin gave him the AK-47. He went back to his own house and positioned himself next to a wood pile.
“SAM then said that he was fired upon twice by what he believed to be a rifle,” Zuercher wrote. “SAM said that he thought it was a rifle because he could see the light reflecting off what looked to be a long barrel. SAM said he returned fire and shot approximately five times. SAM saw approximately four to six men scatter.”
He saw them get into a car and begin to drive away. He then moved closer, to a metal structure, and fired five more times. After he heard the vehicle crash, he wrapped the gun in a blanket and put it in a bush, he wrote.
Richmond Sam was on probation for previously shooting at a deputy who tried to pull him over for drunk driving. When he killed Herrera, he was still on probation.
In federal law, involuntary manslaughter carries a maximum sentence of eight years in prison. However, the plea agreement, which District Judge James Browning signed, dictated that Sam would receive a sentence of a year and three months (15 months) to a year and nine months (21 months).
Federal prosecutor David Adams proffered that binding plea deal and federal Magistrate Judge Karen Molzen initially accepted it although it was up to Browning to determine the final sentence.
“Acknowledging that the plea agreement radically reduces the defendant’s exposure to incarceration, the United States urges the Court to accept the agreement based on the fact that grounds for the plea are significantly tied to the facts of the case and the detrimental impact proceeding to trial would likely have on all parties involved,” Adams wrote.
The three brothers were unreliable witnesses and Adams was not sure if they would even show up, if the case went to trial, he wrote. In addition, they had little credibility, considering they attacked Sam’s property.
Near Counselor, NM. Photo by Chris Sale/Flickr. CC BY
“If one of the witnesses decided not to show, the government’s case in chief would collapse, the jury would more likely rely upon the Defendant and his version of events, which was well articulated in his statement to law enforcement,” Adams wrote. “A spokesperson for the family had conveyed to the government that the brothers would likely be a no show at the day of trial. The allegation by the Defendant that one of the brothers was firing a rifle from the vehicle would become an even more difficult obstacle to overcome if one of the witnesses decided not to show. The government wasn’t privy to what defenses witnesses would testify to, but the defense had eluded to the fact that one of their witnesses would testify that they heard or saw another weapon being fired, corroborating the Defendant’s version of events.”
Sam’s attorney, Robert Gorence, argued that Sam had a legitimate claim to self defense, Adams wrote.
‘”The United States agrees with the analysis that the Defendant’s self-defense claim could have resulted in an acquittal or at the very least a step down to involuntary manslaughter which would have resulted in a sentence of two to three years,” Adams wrote. “Taking those things into consideration, as well as the criminal history of the victim and his brothers, the parties negotiated a plea that reconciled what would have otherwise been an indeterminate trial dynamic.”
“Mr. Sam’s investigation in this case revealed the following that had not been uncovered by the FBI:
1. Mr. Sam had been the victim of repeated threats and violence directed against him and his property;
2. On the night of July 30, 2016, Mr. Sam was not intoxicated and was peaceably minding his business at his residence;
3. That the alleged victim in this case and his brothers, close to midnight, began what would be called an ‘attempted home invasion,’ and, when unsuccessful in breaching the residence, the alleged victim and his brothers proceeded to smash a house window and the windows of Mr. Sam’s vehicles.”
In addition, Sam was not armed in his own house and only retrieved a gun from his neighbor, who tried himself to call 911, but was unable to. In addition, three different neighbors would corroborate that they heard Sam being shot at before he returned fire, Gorence wrote.
“Perhaps of greatest significance in this case is the odd autopsy findings cursorily set forth in paragraph 17 of the PSR (Pre-sentence report),” Gorence wrote. “Although Mr. Sam was at least 15 feet higher in elevation than the alleged victim, the autopsy identified that the alleged victim died from a single bullet which entered his left upper back, went through his left shoulder blade and the left side of his neck, into his oral cavity and exited the right side of his mouth. Given the difference in elevation, this trial would have established great uncertainty as to whether or not Mr. Sam actually fired the fatal shot. Quite conceivably the alleged victim was accidentally shot by one of his brothers either in the vehicle or before entering it. This would explain the bizarre behavior of the victim’s brothers in not transporting him immediately to a hospital and instead going to a sister’s house for a very lengthy period of time. The argument would have been made at trial that the prolonged stay at the alleged victim’s sister’s house was an attempt by his brothers to cleanse themselves of his blood and hide other critical evidence, namely their firearm.”
