Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1765

Filed 04/21/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants. __________________________________________________________________ William Sablan's Reply To The Government's Response To Wm DP-18 Regarding Striking Non-Criminal Institutional Setting Incidents _________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, submits the following in reply to the government's response to William's Motion To Strike Certain Institutional Setting Incidents From Future Dangerousness On The Grounds That The Conduct Alleged Is Not Criminal Conduct [Wm DP-18]. The government's response to Wm DP-18 is contained in Document # 1736 at 7-9. 1. The government's assertion that "[t]here is no requirement that nonstatutory aggravating factors be independent crimes" is generally true. (Id. at 8). Nevertheless, the caselaw is clear that aggravating factors, be they statutory or
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nonstatutory, must be relevant to the consideration of who should live and who should die. See Gregg v. Georgia, 428 U.S. 153, 192 (1976) (jury to be given guidance regarding the factors that organized society deems particularly relevant to the sentencing decision); United States v. Davis, 912 F.Supp. 938, 943 (E.D. La. 1996) (nonstatutory aggravating factors and their supportive information must be "sufficiently relevant to the consideration of who should live and who should die"); United States v. Friend, 92 F. Supp. 2d 534, 543 (E.D. Va. 2000) (same); United States v. Peoples, 74 F. Supp. 2d 930, 932 (W.D. Mo. 1999) (same); United States v. Gilbert , 120 F.Supp. 2d 147, 150 (D. Mass. 2000) ("[a]s the Supreme Court has held, aggravating factors in death penalty cases must be `particularly relevant to the sentencing decision,' not merely relevant, in some generalized sense, to whether defendant might be considered a bad person"). (quoting Gregg, 428 U.S. at 192). 2. The response quotes from United States v. Fell, 372 F.Supp.2d 753 (D. Vermont 2005) for the proposition that nonstatutory aggravating factors do not have to constitute independent crimes. In contrast to this case, however, the nonstatutory aggravating factors at issue in Fell, although non-criminal, related to the circumstances of the underlying offense, including motive and substantial premeditation. As such, they were particularly relevant to the sentencing decision.
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3. The government also cites United States v. O'Driscoll, 250 F.Supp.2d 432, 442 (M.D. Pa. 2002), in which the court ruled that based upon the government's proffered videotapes, it would be allowed to present evidence of two incidents of the defendant refusing to cuff-up and return to his cell from the recreation pen. The facts are distinguishable in that the videotaped incidents in O'Driscoll showed the defendant "charg[ing]" the correctional use-of-force team, in such a way as to constitute an assault or an attempt to assault correctional staff. They are therefore qualitatively different from the incidents listed in Wm DP-18. (See William's Reply relating to Wm DP-16 for a full list of the incidents alleged against O'Driscoll in support of future dangerousness.) 4. Additionally, the government's response ignores its own pleading. Its amended NOI alleges that "the defendant is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others." (Document # 1633 at 5) (emphasis added). Thus the listed incidents involving non-criminal violations of prison rules are not relevant to the nonstatutory aggravating factor alleged, are more prejudicial than probative, and mislead the jury. They should therefore be excluded under 18 U.S.C. § 3593(c). 5. Most importantly, the non-criminal incidents addressed in Wm DP-18 are of insufficient import to be relevant to the jury's decision of whether William
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should be executed or should spend the remainder of his life in prison. WHEREFORE, William respectfully requests the Court to strike paragraphs (c), (d) and (j) in their entirety and portions of paragraphs (e) and (h) under the heading "Institutional Setting" because they do not allege criminal conduct in support of the nonstatutory factor of future dangerousness. Dated: April 21, 2006 Respectfully submitted, Patrick J. Burke Dean Neuwirth Burke & Neuwirth P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan CERTIFICATE OF SERVICE I hereby certify that on April 21, 2006, I electronically filed the foregoing William Sablan's Reply To The Government's Response To Wm DP-18 Regarding Striking Non-Criminal Institutional Setting Incidents with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected]
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Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

Case 1:00-cr-00531-WYD

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[email protected] [email protected] [email protected] By: s/Susan L. Foreman

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