Free Response to Motion - District Court of Colorado - Colorado

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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 PROHIBIT INTRODUCTION OF UNADJUDICATED CRIMINAL CONDUCT IN PENALTY PHASE [Wm DP-24]

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 Prohibit the Government from Introducing Evidence of Unadjudicated Criminal Conduct During the Penalty Phase [Wm DP-24]. A. INTRODUCTION William Sablan asks the Court to exclude categorically the government's introduction in any penalty phase "criminal conduct that has not been adjudicated in a court of law." William Sablan's Motion to Prohibit Unadjudicated Criminal Conduct

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[Wm DP-24] at 1.1 He makes this claim under the Fifth, Sixth, and Eighth Amendments. Id. at 3. No appellate court has categorically excluded such evidence under any theory. B. ANALYSIS In order for the jury to make an informed decision during the penalty phase as to whether a defendant deserves the death penalty, it is necessary that the jury have a full understanding of the defendant's character and background. The Supreme Court has recognized this important principle of capital litigation. "[W]hat is essential is that a jury have before it all possible relevant information about the individual defendant whose fate it must determine." Jurek v. Texas, 428 U.S. 262, 276 (1976). Similarly in Gregg v. Georgia, 428 U.S. 153, 204 (1976), the Court stated "[w]e think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision." As a result, courts have not drawn an artificial and extraconstitutional distinction between "adjudicated" conduct and "unadjudicated" conduct. As explained by Justice Stevens in his concurrence in Barclay v. Florida, [T]he Constitution does not prohibit consideration at the sentencing phase of information not directly related to either statutory aggravating circumstances or statutory mitigating factors, as long as that information is relevant to the character of the defendant or the circumstances of the crime... What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime.

Rudy Sablan made the same basic arguments as part of the Phase II motions. See Rudy Sablan's Motion to Preclude Consideration of the Death Penalty for Unconstitutional Provisions and Procedures Established by 18 U.S.C. § 3591, et seq. (Phase II) (R-44) at 13-14. 2

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463 U.S. 939, 967 (1983)(Stevens, J, joined by Powell, J., concurring in the judgment) (citations omitted). In applying these principles to the government's use of unadjudicated criminal conduct, the following courts have determined that unadjudicated criminal acts are not per se inadmissible: See Boltz v. Mullin, 415 F.3d 1215, 1231 (10 th Cir. 2005); Hawkins v. Mullin, 291 F.3d 658, 678 (10 th Cir. 2002); United States v. Lee, 274 F.3d 485, 494 (8 th Cir. 2001); Eaton v. Angelone, 139 F.3d 381, 404 (4 th Cir.), cert. denied, 524 U.S. 934 (1998); Hatch v. Oklahoma, 58 F.3d 1447, 1465 (10 th Cir. 1995), cert. denied, 517 U.S. 1235 (1996); Devier v. Zant, 3 F.3d 1445, 1464-65 (11 th Cir.1993), cert. denied. 513 U.S. 1161 (1995); Richardson v. Johnson, 864 F.2d 1536, 1541 (11 th Cir.), cert. denied, 490 U.S. 1114 (1989); Milton v. Procunier, 744 F.2d 1091, 1097 (5 th Cir. 1984), cert. denied, 471 U.S. 1030 (1985); Williams v Lynaugh, 814 F.2d 205, 207-08 (5 th Cir.), cert. denied, 484 U.S. 935 (1987); United States v. Beckford, 964 F. Supp. 993, 998 (E.D. Vir. 1997); United States v. Walker, 910 F. Supp. 837, 854 (N.D.N.Y. 1995); United States v. Bradley, 880 F. Supp. 271, 287 (M.D. Pa. 1994). In Boltz, the defendant contended that there must be sufficient indicia of reliability that the defendant committed a particular unadjudicated offense before it can be used at sentencing. The court rejected that argument and noted that the Supreme Court has never indicated that introduction of unadjudicated offenses at sentencing was limited to those supported by sufficiently reliable evidence. 415 F.3d at 1231, citing Williams v. New

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York, 337 U.S. 241, 250-52 (1949) (sentencing judge imposed death based in part on evidence of unadjudicated offenses not introduced at trial and not subject to crossexamination); see also Nichols v. United States, 511 U.S. 738, 747-48 (1994). The Federal Death Penalty Act provides structure and guidance in how evidence is to be introduced in the penalty phase. "Information is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. § 3593(c). The balancing required by this provision allows the government to present evidence of the defendant's character, whether such evidence involves unadjudicated criminal conduct or adjudicated criminal conduct, while at the same time allowing the Court to adopt procedures to insure the evidence's reliability. The FDPA therefore satisfies any Eighth Amendment claim as to constitutionally reliable standards. Moreover, the Tenth Circuit has already rejected claims under the Eighth Amendment that the use of unadjudicated criminal conduct violates the Constitution as not being reliable. See Hawkins v. Mullin, 291 F.3d 658, 678 (10 th Cir. 2002) (rejecting habeas petitioner's claims under the Eighth and Fourteenth Amendments regarding the introduction of unadjudicated criminal conduct). Thus, the defendant's Eighth Amendment claim must be rejected. William Sablan acknowledges that the Tenth Circuit has already decided that the

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government's use of unadjudicated criminal conduct in the penalty phase does not violate the Fifth Amendment. William Sablan's Motion to Prohibit Unadjudicated Criminal Conduct [Wm DP-24] at 2-3. In Hatch v. Oklahoma, 58 F.3d 1447, 1465 (10 th Cir. 1995), the Tenth Circuit held that "[w]e therefore follow Williams [v. New York, 337 U.S. 241 (1949)] and join three other Circuit Courts in holding that the admission of evidence of unadjudicated offenses at a sentencing proceeding does not violate due process." 2 The defendant's Fifth Amendment claim must also be rejected. William Sablan's Sixth Amendment claim is not entirely clear. He states that the jury must be fair and impartial during the penalty phase. See William Sablan's Motion to Prohibit Unadjudicated Criminal Conduct [Wm DP-24] at 3. Later he cites a 1984 state court opinion for the proposition that a jury that has just convicted a defendant of a capital crime cannot be trusted to consider fairly and impartially penalty phase evidence. Id. at 5.3 Immediately thereafter William Sablan says "For the reasons just stated, the Eighth

The defendant attempts to diminish the precedential value of Hatch by suggesting that Hatch improperly relied on Williams v. New York, 337 U.S. 241 (1949), given that some of the assumptions in Williams were later repudiated by the Supreme Court. See William Sablan's Motion to Prohibit Unadjudicated Criminal Conduct [Wm DP-24] at 3 n.1. What William Sablan fails to point out is that Hatch recognized those portions of Williams that had been repudiated, but then noted that the "Court has not, however, called into question the essence of Williams' holding ­ that a judge's consideration of evidence of unadjudicated crimes in imposing the death sentence does not violate a petitioner's due process rights." 58 F.3d at 1465. Immediately after citing the 1984 state opinion questioning the impartiality of penalty phase juries, William Sablan quotes a portion of Williams v. Lynaugh, 484 U.S. 935, 938 (1987), to the same effect. However, he fails to note that the quoted language is from Justice Marshall's dissent, as opposed to a majority opinion. 5
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Amendment's heightened reliability standard cannot be met." See William Sablan's Motion to Prohibit Unadjudicated Criminal Conduct [Wm DP-24] at 6. As previously noted, the Tenth Circuit has rejected an Eighth Amendment reliability challenge to the government's use of unadjudicated criminal conduct. See Hawkins v. Mullin, 291 F.3d 658, 678 (10 th Cir. 2002). But, regardless of whether William Sablan makes his argument about jury untrustworthiness under the Sixth or Eighth Amendment, the argument is illogical. As explained by United States v. Matthews, 246 F. Supp. 2d 137, 150 (N.D.N.Y. 2002), [T]he suggestion that a jury that has found a defendant guilty in the guilt phase of a trial cannot be impartial with respect to the evaluation of the unadjudicated criminal conduct during the penalty phase makes little sense. By this same reasoning, a jury that convicted a defendant on count one of an indictment would be too biased to consider whether that same defendant also is guilty of the remaining count or counts in the indictment. Yet, we know from experience that jurors are capable of deciding each count on its own merits. There is no reason to presume that the jury during the penalty phase will be biased. The defendant's Sixth Amendment claim must be denied. Finally, the defendant asserts that the government's use of unadjudicated criminal conduct "may well result in time-consuming and misleading mini-trials on completely collateral issues." See William Sablan's Motion to Prohibit Unadjudicated Criminal Conduct [Wm DP-24] at 6. The court in United States v. Beckford, 964 F. Supp. 993, 997-998 (E.D. Vir. 1997), addressed this issue as follows:

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[T]he apprehension of numerous mini-trials respecting the existence of unadjudicated conduct supplies an insufficient basis to wholly exclude such conduct in capital sentencing proceedings. Courts regularly resolve difficult and close questions about the admissibility of evidence and the offering of proofs. The procedures and trial management techniques by which this is usually accomplished will apply even though the proceeding involves capital punishment. In short, the argument does not support the proposition that the Court should wholly exclude the use of unadjudicated criminal conduct, and neither does the argument suggest anything new in terms of how courts routinely decide on the admissibility of evidence. WHEREFORE the United Stated requests that William Sablan's Motion to Prohibit the Government from Introducing Evidence of Unadjudicated Criminal Conduct During the Penalty Phase [Wm DP-24] be denied.

Respectfully submitted this

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 7

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 PROHIBIT INTRODUCTION OF UNADJUDICATED CRIMINAL CONDUCT IN PENALTY PHASE [Wm DP-24] 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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