Free Reply to Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, 2. RUDY CABRERA SABLAN, Defendants.

GOVERNMENT'S RESPONSE TO DEFENDANT WILLIAM SABLAN'S MOTION TO STRIKE THREATENING VIOLENCE, LOW REHABILITATIVE POTENTIAL, AND LACK OF REMORSE FROM GOVERNMENT'S NOI [Wm DP-22]

The United States of America, by William J. Leone, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, responds as follows to William Sablan's Motion to Strike Threatenting Violence, Low Rehabilitative Potential, and Lack of Remorse from the Government's Notice of Intent to Seek the Death Penalty [Wm DP-22]. A. INTRODUCTION William Sablan seeks to "strike allegations of threats of violence, low rehabilitative potential and lack of remorse from the NOI." William Sablan's Motion to Strike [Wm DP-22] at 5-6. Specifically, William Sablan objects to the government

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`submitting' threats, lack of remorse, and low rehabilitative potential as "enumerated `facts' that support its nonstatutory aggravating factor of future dangerousness." Id. at 23. It is not clear what William Sablan means by the government "submitting" these character traits as "enumerated facts." B. ANALYSIS The government's Amended Notice of Intent to Seek the Death Penalty against William Sablan includes the following language in Section C.1. regarding "Future Dangerousness of the Defendant": [T]he defendant has engaged in a continuing pattern of violent conduct in and out of an institutional setting, has threatened others with violence, has demonstrated low rehabilitative potential, and/or has demonstrated lack of remorse.... The Notice goes on to list a number of specific incidents in both institutional and noninstitutional settings. The government intends to submit evidence of these incidents, which support the fact that William Sablan has threatened others with violence, has low rehabilitative potential, and has demonstrated lack of remorse. From this evidence, the government will argue that William Sablan constitutes a continuing and serious threat to the lives and safety of others, i.e. the nonstatutory aggravator of future dangerousness. 1. Threats ­ The defendant argues that "where there is no serious personal injury, information regarding threats of violence are insufficiently relevant and reliable to submit to the jury...." William Sablan's Motion to Strike [Wm DP-22] at 3. However,

this argument is contrary to the Tenth Circuit's opinion in Boltz v. Mullin, 415 F.3d 1215, 2

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1231 (10 th Cir. 2005), where the court observed that "neither Oklahoma nor the United States Supreme Court has ever prohibited a jury from considering the defendant's nonviolent offenses in conjunction with other factors when determining whether the defendant poses a future risk to society." If "nonviolent" offenses can be submitted to the jury, certainly threats of violence can be submitted. See also United States v. Chong, 98 F. Supp. 2d 1110, 1117 (D. Hawaii 1999) (rejecting approach of United States v. Davis 912 F. Supp. 938, 943 (E.D. La. 1996), and allowing evidence of threats to various people, including prison guards). 2. Low Rehabilitative Potential ­ William Sablan claims that low rehabilitative potential can never be a valid justification for a death sentence. William Sablan's Motion to Strike [Wm DP-22] at 3. He is unable to cite any case that has accepted the argument. To the contrary, courts have allowed the government to argue low rehabilitative potential as part of the nonstatutory aggravator of future dangerousness. See United States v. Mayhew, 380 F. Supp. 2d 936, 951 (S.D. Ohio 2005) (allowing low rehabilitative potential evidence in support of future dangerousness); United States v. Taylor, 316 F. Supp. 2d 730, 742-43 (N.D. Ind. 2004) (same); United States v. Davis, 2003 WL 1873088 at *9 (E.D. La. 2003); United States v. O'Driscoll, 203 F. Supp. 2d 334, 345 (M.D. Pa. 2002) (allowing low rehabilitative potential evidence in support of future dangerousness); United States v. Davis, 912 F. Supp. 938, 946 (E.D. La. 1996) (same).

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William Sablan also argues that low rehabilitative potential is unconstitutionally vague, relying upon United States v. Davis, 912 F. Supp. 938, 946 (E.D. La. 1996). Even the court in Davis, however, did not find low rehabilitative potential unconstitutionally vague. Rather, it simply held that it was a subset of future dangerousness and allowed its introduction on that basis. Other courts have specifically rejected William Sablan's argument. See United States v. Davis, 2003 WL 1873088 at *9 (E.D. La. 2003) ("The Court does not find that this factor is impermissibly vague because the concept of examining a defendant's rehabilitative potential is firmly rooted in criminal sentencing practices"); United States v. Spivey, 958 F. Supp. 1523, 1535 (D.N.M. 1997) (rejecting claim that "low rehabilitative potential" is too vague). 3. Lack of Remorse ­ The defendant argues that lack of remorse cannot be submitted as a separate aggravating factor. William Sablan's Motion to Strike [Wm DP22] at 5. As stated above, the government does not intend to do so. However, to the extent that William Sablan argues that the government should not be able to introduce evidence of his lack of remorse in support of future dangerousness, the government objects. In Zant v. Stephens, 462 U.S. 862, 885 n.22 (1983), the Supreme Court cited with approval Fair v. State, 245 Ga. 868, 873, 268 S.E.2d 316 (1980), for the proposition that "Any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes is

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admissible in aggravation, subject to the notice provisions of the statute." As a result, courts have held that lack of remorse may be presented to the jury as an aggravating factor. See United States v. Davis, 2003 WL 1873088 at *9 (E.D. La. 2003) ("There is no per se constitutional problem with a `lack of remorse'factor"); United States v. O'Driscoll, 203 F. Supp. 2d 334, 345 (M.D. Pa. 2002) (allowing lack of remorse evidence in support of the nonstatutory aggravator of future dangerousness); United States v. Cooper, 91 F. Supp. 2d 90, 112 (D.D.C. 2000) ("There does not appear to be a constitutional ban on the use of lack of remorse evidence as an aggravating factor"); United States v. Nguyen, 928 F. Supp. 1525, 1541 (D. Kan. 1996) ("There does not appear to be any constitutional problem with a `lack of remorse' factor per se"). Finally, William Sablan argues that the defendant's alleged lack of remorse after the homicide of Joey Estrella is duplicative of the statutory aggravating factor of committing the offense in an especially heinous or depraved manner. William Sablan's Motion to Strike [Wm DP-22] at 5. However, he concedes that "the government might be allowed to argue that this evidence is probative of future dangerousness...." Id. The government does not intend to submit William Sablan's lack of remorse after this incident as a separate aggravating factor, but does intend to submit it as evidence in support of future dangerousness. As the cases cited above demonstrate, this is appropriate.

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WHEREFORE the United Stated requests that William Sablan's Motion to Strike Threatenting Violence, Low Rehabilitative Potential, and Lack of Remorse from the Government's Notice of Intent to Seek the Death Penalty [Wm DP-22] be denied.

Respectfully submitted this 27 th day of March, 2006.

WILLIAM J. LEONE United States Attorney

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0403 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 27th day of March, 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT WILLIAM SABLAN'S MOTION TO STRIKE THREATENING VIOLENCE, LOW REHABILITATIVE POTENTIAL, AND LACK OF REMORSE FROM GOVERNMENT'S NOI [Wm DP-22] with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for William Sablan Patrick J. Burke [email protected]

Attorneys for Rudy Sablan Donald R. Knight [email protected] Forrest W. Lewis [email protected]

Nathan Dale Chambers [email protected] [email protected]

Susan Lynn Foreman [email protected]

Dean Steven Neuwirth [email protected]

s/ Donna Summers DONNA SUMMERS Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0406 E-mail address [email protected]

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