Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1762

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-16 Regarding Striking Incidents In Support Of Future Dangerousness __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, submits the following in reply to the government's response to William's Motion To Strike Incidents Listed In Support Of The Government's Nonstatutory Aggravating Factor "Future "Dangerousness" On The Grounds They Are Insufficiently Relevant And Reliable To Submit To The Jury [Wm DP-16]. The government's response is contained in Document # 1736 at pages 9-17. 1. For the most part, the matters discussed in the initial pages of the government's response have been addressed in William's other pleadings and will not be repeated here. For the following points, William would refer the Court as
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noted: a) the "focus of the jury's inquiry with regards to future dangerousness" (response at 10) is addressed in Wm DP-17 and its related reply; b) the admissibility of the underlying facts of prior convictions is addressed in Wm DP­19 and its related reply; and c) Boltz v. Mullin, 415 F.3d 1215 (10th Cir. 2005) is discussed in William's replies relating to Wm DP-22 and Wm DP-24. 2. When describing William's prior convictions, the government notes that William's criminal "history is remarkable" not only for acts of violence, but also "for the minimal sentences received from local courts, even for felony convictions." (Response at 10). The jury's role, however, does not include assessing whether William was treated too leniently by prosecutors or judges in the past. This evidence purportedly is being offered to support the government's allegation of future dangerousness; it is not being offered to justify a death sentence on the basis of past conduct. 3. Paragraph (d) of the "Non-Institutional Setting" incidents has been

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withdrawn by the government, so it need not be addressed.1 (Document # 1736 at 3). 4. Of the "Institutional-Setting" incidents, the government has withdrawn paragraphs (a) and (e), so those need not be addressed. (Response at 14 (11)). 5. William has challenged the use of paragraphs (c) (f) and (j) because the incidents did not result in harm to others. In relation to paragraph (c), the government responds that the fact that no one was harmed is beside the point and that it is relevant to future dangerousness because it "shows a level of anger" and that William "was able and willing to break free from his restraints, . . .[which] . . . is highly relevant." (Response at 14(3)). Rather than being indicative of future dangerousness, this incident shows that despite his anger and his ability to remove restraints, William harmed no one. Similarly, in regards to paragraph (f), the government claims that despite the fact no one was harmed, the incident is relevant because it "gives insight into the degree of anger experienced" by William. (Response at 15 (6)). That William is capable of anger, as is every human being, simply is not sufficiently relevant to the claim that he will be a continuing and serious threat to the lives and safety of others while in prison.

William refers to this incident by its paragraph designation in the NOI, and will do the same in relation to other incidents discussed. For ease of reference, copies of the relevant pages of the NOI are attached.
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6. William has also challenged paragraphs (d), (e), (f), (g) on the grounds that they constitute mere threats and are therefore irrelevant to future dangerousness. In relation to paragraph (d), the government states that William's motion "incredibly, notes that the razor blade [allegedly brandished] was not a prohibited item . . . its legality or illegality is hardly the point." (Response at 1415 (4)). It is an important point, however, because the government refers to it as a "weapon." The Bureau of Prisons (BOP) provided this "weapon" to William, and given the fact that William was inside his cell and the guard was outside the cell, the threat was illusory. The threats described in paragraphs (g) and (j) represent warped bravado and nothing more. 7. Overall, rather than supporting a finding of future dangerousness, these incidents reflect that the BOP staff can handle William without harm befalling themselves or other inmates. For example, after the incident noted in paragraph (i) William was placed in a cell with plexiglass over the bar front, which eliminated any risk he might cause someone harm by reaching through the bars. Paragraph (j) alleges that while being transported to a community hospital, William removed his seatbelt, tried to remove his restraints, and "threatened to assault staff." The government responds that the this incident occurred "outside the prison and in the local community where the repercussions could have been extremely serious."
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(Response at 17 (10)) (emphasis in the original). Although one can speculate what "could have" happened, the NOI reflects that staff "returned to the institution with emergency lights and siren" (document # 1633 at 10) and William did not remove his restraints and no one was assaulted. 8. Both the non-institutional and institutional setting incidents listed in the NOI are trivial when compared to other federal capital defendants. For example, in United States v. O'Driscoll, 250 F.Supp. 2d 432 (M.D. Pa. 2002), a case cited in the government's responses here and to Wm DP-18, the non-institutional criminal conduct alleged in relation to future dangerousness included: (1) stabbing the victim of a robbery; (2) pistol whipping and attempting to suffocate the victim of a robbery; (3) shooting the victim of a robbery; (4) beating the victim of a robbery in the head with a gun; (5) premeditated murder ; (6) armed bank robbery; and (7) armed bank robbery. Beyond the two refusals to "cuff up" to which the government refers, the institutional setting incidents also included: (1) attempted escape and assault on U.S. Marshals (2) attempted escape from USP Leavenworth; (3) participation in a conspiracy to escape from USP Lewisburg; (4) possessing escape paraphernalia, also at USP Lewisburg; and (5) possessing a shank while in the SHU of USP Allenwood. 9. Despite the incidents' lack of substance in this case, the government
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relies on United States v. Chong, 98 F. Supp.2d 1110 (D. Hawaii 1999) for the proposition that although future dangerousness will have to be proven beyond a reasonable doubt, each incident, by itself, need not meet that burden and that 18 U.S.C. § 3593(c) allows in "any information" relevant to an aggravating factor for which notice has been given. Upon reading Chong in its entirety, one cannot avoid the conclusion that the district court abdicated its role as gatekeeper and gave the government carte blanche. In contrast, many other courts have recognized their role as guardians of the sentencing proceedings and have scrutinized nonstatutory aggravating factors and the evidence offered in their support for relevance and reliability to ensure that the jury hears only what is truly worthy of consideration in its grave decision between life and death. (See the cases cited in Wm DP-16 at 2-4 and William Sablan's Memorandum Brief In Support Of His Motions To Strike Incidents Listed By The Government In Support Of Its Nonstatutory Aggravating Factor Of Future Dangerousness at 2-3). What is clear from these cases is that "each particular piece of information" must be sufficiently relevant and reliable and pass the balancing test before it warrants consideration by the jury. 10. Various courts have also discussed what the standard of reliability should be for each incident. See e.g., O'Driscoll, 250 F.Supp.2d at 438-441 (applying the standard of beyond a reasonable doubt); United States v. Beckford,
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964 F.Supp. 993, 1104 E.D. Va. 1997) (employing a preponderance of the evidence standard for relevancy and taking into account the constitutional requirement of heightened reliability when conducting the balancing test of probative value and unfair prejudice); United States v. Davis, 912 F.Supp. 938, 949 (E.D. La. 1996) (inviting briefing from the parties as to three possible standards ­ clear and convincing, a post-judgment motion for acquittal standard, i.e., whether a jury could find guilt beyond a reasonable doubt, and preponderance of the evidence like the federal guidelines). Again, these cases, make it clear that "each particular piece of information" must be sufficiently relevant and reliable and pass the balancing test before it warrants consideration by the jury. Therefore, the language of § 3593(c) has important qualitative restrictions. WHEREFORE, William respectfully requests the Court to strike the incidents listed in support of the government's future dangerousness nonstatutory aggravating factor on the grounds that they are insufficiently relevant and reliable to submit to the jury for consideration. Dated: April 21, 2006

Respectfully submitted,
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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

Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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-16 Regarding Striking Incidents In Support Of Future Dangerousness 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] [email protected] [email protected] [email protected] By: s/Susan L. Foreman

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