Free Response to Motion - 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 DEFENDANTS' MOTIONS TO LIMIT EVIDENCE OF PRIOR CONVICTIONS TO THE FACT OF CONVICTION [Wm DP-19 and R-55]

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 Limit Evidence of Prior Convictions to the Fact of Conviction and to Exclude Evidence of Underlying Conduct [Wm DP-19] and Rudy Sablan's Motion to Limit Evidence of Prior Convictions to Statutory Requirements [R-55]. A. INTRODUCTION William Sablan asks that the Court limit the government's proof of prior criminal conduct to simply the fact of conviction. In particular, he requests that the Court limit the government's evidence to just the fact of conviction for the statutory aggravator identified

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on page 3 of the government's Amended Notice of Intent to Seek the Death Penalty ("NOI") involving the 1999 Hostage Taking conviction, as well as the convictions referred to in the Future Dangerousness section of the NOI. Rudy Sablan asks the Court to limit the government's proof of criminal convictions to (1) the offense of conviction and its elements; (2) the possible penalty; and (3) the date of the offense and date of conviction. See Rudy Sablan's Motion to Limit Evidence of Prior Convictions [R-55] at 1. Rudy Sablan requests that the Court limit the government's evidence as to the two convictions identified as statutory aggravating factors on page 3 of the NOI. Id. B. ANALYSIS Neither defendant cites any case law under the Federal Death Penalty Act ("FDPA") in support of their requests. The government does not believe that any court has adopted the argument. However, several courts have rejected it. In United States v. Higgs, 353 F.3d 281 (4 th Cir. 2003), the defendant complained that the government admitted the underlying details of a statutory aggravator (a violent felony involving a firearm under § 3592(c)(2)), when, instead, the government should have been limited to the fact of the conviction and the statutory definition of the crime. Id. at 316. In support, the defendant cited the same case that both William and Rudy Sablan rely upon, Taylor v. United States, 495 U.S. 575 (1990), a case requiring the use of a categorical approach to

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predicate convictions under the Armed Career Criminal Act. In rejecting this argument, the Fourth Circuit noted that: [The Taylor categorical] approach is not required under § 3592(c)(2) of the federal death penalty scheme.... Because the language [of § 3592(c)(2)] quite plainly requires only that the previous conviction "involv[e] the use or attempted or threatened use of a firearm," it authorizes and likely requires the court to look past the elements of the offense to the offense conduct. Id. Whereas courts under the Armed Career Criminal Act are to avoid "the practical difficulties and potential unfairness of a factual approach," Taylor, 495 U.S. at 601, "an individualized determination is required in the death penalty context." Higgs, 353 F.3d at 317, citing Zant v. Stephens, 462 U.S. 862, 877-79 (1983) (emphasis is original). In United States v. Rodriguez, 2006 WL 487117 (D.N.D. 2006), the defendant moved to limit the government's evidence regarding convictions involving the infliction of serious bodily injury to the categorical approach of Taylor and Shepard v. United States, 544 U.S. 13 (2005). Id. at *1. The court denied the request, noting that, under the FDPA, the court "is not looking at whether the elements of a crime have the `potential' for serious bodily injury, instead the court must look at what actually happened." Id. at *2. Furthermore, the court noted that limiting the government's proof to the fact of conviction would contravene the FDPA's authorization for the government to present any information relevant to an aggravating factor for which notice has been given and its goal of particularizing the capital sentencing proceedings. Id. See also United States v. Chong, 98 F. Supp. 2d 1110, 1119-21 (D. Hawaii 1999) ( same).

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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. 463 U.S. 939, 967 (1983) (Stevens, J, joined by Powell, J., concurring in the judgment) (citations omitted). Limiting the government's proof to the fact of conviction is also at odds with the government's ability to introduce evidence of unadjudicated criminal conduct during the penalty phase. "[T]he admission of evidence of unadjudicated offenses at a sentencing

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proceeding does not violate due process." Hatch v. Oklahoma, 58 F.3d 1447, 1465 (10 th Cir. 1995). It would be ironic and illogical if the government could present the jury with details of unadjudicated conduct, but could not present the details of conduct for which a defendant was actually convicted. Reliability concerns alone cannot limit the government's presentation of the facts and circumstances underlying the defendant's criminal convictions. "[T]he Supreme Court itself has never indicated ... that only those unadjudicated offenses which are supported by sufficiently reliable evidence may be introduced in the sentencing phase of a capital case." Boltz v. Mullin, 415 F.3d 1215, 1231 (10 th Cir. 2005). Although Boltz dealt with unadjudicated conduct, its reasoning applies even more strongly to adjudicated conduct. Finally, as to Rudy Sablan's claim that evidence of the underlying facts will cause the penalty phase to devolve into a series of mini-trials, the court in United States v. Beckford, 964 F. Supp. 993, 997-998 (E.D. Vir. 1997), addressed the issue in the context of unadjudicated conduct as follows: [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.

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There is no reason why the Court will not be able to balance the important interest in presenting evidence of the defendants' character with efficiency and fairness concerns. WHEREFORE the United Stated requests that William Sablan's Motion to Limit Evidence of Prior Convictions to the Fact of Conviction and to Exclude Evidence of Underlying Conduct [Wm DP-19] and Rudy Sablan's Motion to Limit Evidence or Prior Convictions to Statutory Requirements [R-55] be denied.

Respectfully submitted this 27th 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 DEFENDANTS' MOTIONS TO LIMIT EVIDENCE OF PRIOR CONVICTIONS TO THE FACT OF CONVICTION [Wm DP-19 and R-55] 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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