Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1731

Filed 03/27/2006

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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 FUTURE DANGEROUSNESS ON THE GROUNDS THAT CONGRESS DID NOT INCLUDE IT IN FDPA [Wm DP-21]

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 the Nonstatutory Aggravating Factor of Future Dangerousness on the Grounds Congress Did Not Intend It to be Considered in Aggravation [Wm DP-21]. A. OVERVIEW William Sablan claims that Congress, in enacting the Federal Death Penalty Act ("FDPA"), did not intend to include future dangerousness as a nonstatutory aggravating

Case 1:00-cr-00531-WYD

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factor because it is not mentioned in the statute. He cites no case law to support this argument. B. ANALYSIS While it is true that the FDPA does not list future dangerousness as an aggravating factor in 18 U.S.C. § 3592(c), there is no reason to believe that Congress meant to preclude the use of future dangerousness as a nonstatutory aggravating factor. The last sentence of § 3592(c) states: "The jury ... may consider whether any other aggravating factor for which notice has been given exists." Obviously, future dangerousness is a traditional "aggravating factor" that Congress was well aware of in 1994 when the FDPA was passed. And yet Congress chose not to exclude it from the jury's consideration. As a result, courts have uniformly upheld future dangerousness as a nonstatutory aggravating factor under the FDPA. See United States v. Rodriguez, 389 F. Supp. 2d 1135, 1144 (D.N.D. 2005); United States v. Bin Laden, 126 F. Supp. 2d 290, 303 (S.D.N.Y. 2001); United States v. Kaczynski, 1997 WL 716487 at *28 (E.D. Cal. 1997) ("There is no basis ... for concluding that Congress' silence on the application of dangerousness should be interpreted as foreclosing its consideration as an aggravating factor. To the contrary, the statute allows the government to introduce any aggravating factor that is consistent with the nature and purpose of the sentencing statute"); United States v. Cooper, 91 F. Supp. 2d 90, 111-13 (D.D.C. 2000); United States v. Glover, 43 F. Supp. 2d 1217, 1127 (D. Kan. 1999); United States v. Nguyen, 928 F. Supp. 1525, 1542

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(D. Kan. 1996); United States v. Davis, 912 F. Supp. 938, 945-947 (E.D. La. 1996); United States v. Kee, 2000 WL 863119 at *8 (S.D.N.Y. 2000); United States v. Frank, 8 F. Supp. 2d 253, 279 (S.D.N.Y. 1998) ("If Congress had meant the statutory aggravating factors to provide an exhaustive list of factors that could be submitted with respect to the defendant's past criminal behavior and future propensities, it would have said so, and nowhere in the statutory language is such an exclusion even implied"). WHEREFORE the United Stated requests that William Sablan's Motion to Strike the Nonstatutory Aggravating Factor of Future Dangerousness on the Grounds Congress Did Not Intend It to be Considered in Aggravation [Wm DP-21] 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 FUTURE DANGEROUSNESS ON THE GROUNDS THAT CONGRESS DID NOT INCLUDE IT IN FDPA [Wm DP-21] with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email 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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