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 WILLIAM SABLAN'S MOTION FOR RECONSIDERATION OF THE COURT'S ORDER RE USE OF EVIDENCE OF UNDERLYING CONDUCT

The United States of America, by Troy A. Eid, 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 for Reconsideration of the Court's Ruling Allowing the Government to Present Evidence of Underlying Conduct Relating to Prior Convictions. A. INTRODUCTION William Sablan bases his motion for reconsideration on a strained re-interpretation of three Supreme Court cases from the 1970s. He does not cite any cases that have been issued since the Court's July 6, 2006 Order. In other words, the arguments that he makes in the Motion for Reconsideration were available to him on February 13, 2006 when he

Case 1:00-cr-00531-WYD

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filed his original motion, Wm. DP-13 [#1686], and when he argued that motion to the Court on May 16, 2006. The Court carefully analyzed the issue in its July 6, 2006 Order and rejected it. The Court should similarly reject his attempt to get a second bite at the apple. B. ANALYSIS In its July 6, 2006 Order (hereinafter, "Order"), the Court carefully analyzed William Sablan's claim that the Court should restrict the government's penalty phase evidence to the fact of conviction. First, the Court rejected William Sablan's argument that Taylor v. United States, 495 U.S. 575, 599 (1990), required the Court to apply a "categorical" approach to the government's use of prior convictions as statutory aggravators. See Order at 24. Second, the Court noted, given that the government may introduce unadjudicated criminal conduct at the penalty phase, it would be illogical to restrict the use of evidence regarding adjudicated conduct. Id. William Sablan has not presented any case or argument that calls the Court's Order into question. 1. The Concept of Individualized Sentencing Extends Beyond Mitigation Evidence

William Sablan cites Gregg v. Georgia, 428 U.S. 153, 206 (1976), Jurek v. Texas, 428 U.S. 262 (1976), and Lockett v. Ohio, (1978), for the proposition that "the concept of `particularized' sentencing relates to a defendant's constitutional right to present mitigation .... It does not support the argument that there are no restraints on the 2

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government's ability to present aggravation." Motion for Reconsideration at 5-6. There are several problems with this argument. First, the argument provides no basis on which the Court should limit the government's penalty phase evidence to the mere fact of conviction. William Sablan's citation of Gregg, Jurek, and Lockett stand for the principle that the "use of mitigation evidence is a product of the requirement of indivualized sentencing." Kansas v. Marsh, __ U.S. __, 126 S.Ct. 2516, 2525 (2006). But to claim that these cases somehow limit the government's aggravation evidence is groundless. The flaw in this reasoning was exposed in Payne v. Tennessee, 501 U.S. 808, 822 (1991), wherein the Supreme Court overruled Booth v. Maryland, 482 U.S. 496 (1987), and South Carolina v. Gathers, 490 U.S. 805 (1989), and affirmed the constitutionality of states' use of victim impact evidence during the penalty phase of a capital trial: [W]e have, as the Court observed in Booth, required that the capital defendant be treated as a " `uniquely individual human bein[g],' " 482 U.S., at 504 (quoting Woodson v. North Carolina, 428 U.S. 280, 304 (1976)). But it was never held or even suggested in any of our cases preceding Booth that the defendant, entitled as he was to individualized consideration, was to receive that consideration wholly apart from the crime which he had committed. The language quoted from Woodson in the Booth opinion was not intended to describe a class of evidence that could not be received, but a class of evidence which must be received. Any doubt on the matter is dispelled by comparing the language in Woodson with the language from Gregg v. Georgia, quoted above, which was handed down the same day as Woodson. This misreading of precedent in Booth has, we think, unfairly weighted the scales in a capital trial; while virtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances, the State is barred from either offering "a quick glimpse of the life" which a defendant "chose to extinguish," Mills 3

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v. Maryland, 486 U.S., 367, 39 (1988) (Rehnquist, C.J., dissenting), or demonstrating the loss to the victim's family and to society which has resulted from the defendant's homicide. Similarly, in this case, the fact that a defendant has the right to introduce mitigating evidence does not act as a corresponding limitation on the government's ability to introduce aggravation evidence. 1 It is not clear whether William Sablan continues to rely on Taylor v. United States as a source of the claimed limitation on the government's use of the underlying facts of his previous convictions, but as the Court explained in its July 6, 2006 Order, Taylor v. United States, a case decided under the Armed Career Criminal Act, does not limit the government's evidence in the FDPA context. The Court's Order aptly noted that "Defendants have not shown through citation of legislative history that Congress intended the same result [use of the "categorical" approach] in connection with the FDPA." Order at 24. In support of his Motion for Reconsideration, William Sablan again fails to cite any FDPA legislative history. The second problem with William Sablan's argument that individualized sentencing relates only to mitigation evidence is that the argument is contradicted by Supreme Court cases in addition to Payne v. Tennessee. For example, in its response to Wm. DP-19, the government cited Justice Stevens in his concurrence in Barclay v.

As the Court in Payne noted, quoting Justice Cardozo in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934), "[J]ustice, though due to the accused, is due to the accuser also." 501 U.S. at 827. 4

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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). In Jones v. United States, 527 U.S. 373, 401 (1999), the Court rejected the argument that nonstatutory aggravating factors relating to victim vulnerability and victim impact were overbroad, stating that "such evidence is surely relevant to the selection phase decision, given that the sentencer should consider all of the circumstances of the crime in deciding whether to impose the death penalty." The concept of individualized sentencing applies generally to the penalty phase and not just to mitigation evidence. William Sablan provides no basis to undermine the Court's reliance on United States v. Higgs, 353 F.3d 281 (4 th Cir. 2003), United States v. Rodriguez, 2006 WL 487117 (D.N.D. 2006), and United States v. Chong, 98 F. Supp. 2d 1110, 1119-21 (D. Hawaii 1999). 2. Unadjudicated Criminal Conduct William Sablan also argues that the fact the government can introduce unadjudicated criminal conduct does not mean that the government can admit the underlying facts of adjudicated criminal conduct. Motion for Reconsideration at 7. As

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the Court noted in its July 6, 2006 Order, this argument is "illogical." Order at 24. The twist in William Sablan's logic is suggesting that the jury's job in the penalty phase is to assess the defendant's "criminal history." Motion for Reconsideration at 8. During the penalty phase, the jury is not preparing a presentence report. It is deciding whether a person should be sentenced to death. In order to do this, the jury is entitled to know about the facts underlying the crimes that properly constitute aggravating factors. For the same reason that courts have held that a jury can consider unadjudicated conduct as being relevant to this process, so too are the facts underlying adjudicated conduct relevant to the process. William Sablan claims that the categorical approach preserves the "benefit of a plea bargain" and the "contemporaneous assessments of the prosecutor and the judge." Motion for Reconsideration at 8. He states that this is the "most reliable way of assessing the defendant's criminal history." Id. It may be the most reliable way of determining what plea bargains he was offered, but the purpose of the penalty phase is to determine the truth about the defendant's character and conduct. Both sides have the opportunity to put on witnesses and other evidence about the defendant's actual conduct, as opposed to merely offering uninformative and potentially misleading records of conviction. Actual conduct is the most reliable way of assessing the defendant's eligibility for the death penalty.

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C. CONCLUSION William Sablan has offered no basis for the Court to reconsider what it decided in July 2006 ­ that there is no blanket prohibition for the government to present the facts underlying his convictions. William Sablan is attempting to keep from the jury the facts underlying his conviction for leading a prison riot on Saipan. Common sense, however, indicates that a sentencing jury would find the defendant's conduct during that incident highly relevant to its decision whether he should be sentenced to death. WHEREFORE the United States requests that William Sablan's Motion for Reconsideration of the Court's Ruling Allowing the Government to Present Evidence of Underlying Conduct Relating to Prior Convictions be summarily denied.

Respectfully submitted this 12th day of September, 2006.

TROY A. EID 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 12th day of September, 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO WILLIAM SABLAN'S MOTION FOR RECONSIDERATION OF THE COURT'S ORDER RE USE OF EVIDENCE OF UNDERLYING CONDUCT [Wm DP-19] 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/ Veronica Contreras VERONICA CONTRERAS Legal Assistant U.S. Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Phone: 303-454-0100 Fax: 303-454-0403 E-mail: [email protected]

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