Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1883

Filed 08/25/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-000531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants.
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William Sablan's Second Supplemental Response To The Government's July 24, 2006 Proffer Regarding Future Dangerousness ________________________________________________________________________ Defendant William Sablan ("William"), through undersigned court-appointed counsel, supplements his response to the Government's Proffer of Penalty Phase Evidence in Support of Nonstatutory Aggravating Factor of Future Dangerousness. (Document 1843). 1. William's Phase II motions included a "Motion To Strike The Nonstatutory Aggravating Factor From The Government Notice of Intent To Seek the Death Penalty On The Basis That The Federal Death Penalty Act . . . Does Not Provide For Its Use. [Wm DP-9]." (Docket # 1510). Relying on United States v. Allen, 247 F.3d 741 (8th Cir. 2001), the Court denied the motion. (Document 1760 at 41-47). 2. Part of the Court's discussion of the Allen case, however, is relevant to the

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resolution of William's responses and objections to the government's proffer. The Court wrote: I do note, however, that Allen stated a duplication concern, i.e., that allowing the Government to introduce prior criminal acts under both the statutory aggravating factors and the future dangerousness nonstatutory aggravating factor may result in duplication or double counting. Id. at 789-90. Allen held that duplication or double counting of aggravating factors "can impermissibly skew a jury in favor of imposing a death sentence," although it found no duplication under the circumstances of that case. Id. In this case it is premature and improper to speculate what evidence may be presented as to future dangerousness, and whether the Government's evidence may result in duplication. I simply raise this issue as a possible concern to be addressed at a later stage of the litigation, if any party believes that the evidence as presented actually is duplicative. (Document 1760 at 46-47). 3. As its first statutory aggravating factor, the government has alleged 18 U.S.C. § 3592(2), "Previous Conviction of Violent Felony Involving Firearm." (NOI at 3; Proffer at 21). As support, the NOI and proffer refer to guilty pleas to three charges brought in "Criminal Case No. CR99-00018" in the United States District Court for the Northern Mariana Islands. (Id.). Count Two of the Information filed in that case alleged violation of 18 U.S.C. § 922(g)(1), felon in possession of a firearm, specifying as predicates two prior CNMI convictions ­ a robbery conviction in CNMI Case No. 96-235 and an escape conviction in CNMI Case No. 96-258. 4. CNMI Case No. 96-235 is the same robbery conviction listed in the NOI and proffer in support of future dangerousness. (Proffer #3 (NOI ¶: C 1 (c)).
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5. Allowing the government to introduce evidence relating to the robbery conviction both for purposes of the statutory aggravating factor, 18 U.S.C. § 3593(c)(2), ­ "Previous Conviction of Violent Felony Involving Firearm" ­ and for purposes of the future dangerousness nonstatutory aggravating factor constitutes impermissible double counting. 6. In United States v. McCullah, 76 F.3d 1087, 1111 (10th Cir. 1996), a death penalty case, the Tenth Circuit remanded the case for resentencing because the statutory and nonstatutory aggravating factors overlapped, stating that "double counting of aggravating factors, especially under a weighing scheme, has a tendency to skew the weighing process and creates the risk that the death sentence will be imposed arbitrarily and thus, unconstitutionally." Cf. United States v. McVeigh, 944 F. Supp. 1478 (D. Colo. 1996) ("with respect to those offenses [listed in support of a statutory aggravating factor] that entirely repeat a charge in the indictment there is a problem of duplication" id. at 1489; "[t]o allow the jury to weigh as an aggravating factor a crime already proved in the guilty verdict would unfairly skew the weighing process in favor of death"). 7. The Court's resolution of this double-counting issue is dependant upon its other rulings regarding the government's July 24, 2006 proffer, and William's request for relief would vary accordingly. For example: (a) If the Court strikes the Case No. 96-235 robbery conviction from the government's allegations in support of future dangerousness, because: (i) it is irrelevant to future dangerousness in a prison setting; or (ii) the conduct was not sufficiently severe
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to relate to the jury's decision between life and death in view of the defendant's acquittal of assault and 10-year sentence with five years of it suspended; or (iii) the date of offense (9/29/96) is too remote in time to be relevant to future dangerousness; or (iv) the use of audiotapes and/or transcripts of the trial testimony (or the hearsay testimony of interviewing detectives) would fail to comport with the due process and heightened reliability standards required in capital proceedings and would violate William's right to confrontation, then William would request the Court to ensure that the government does evade the intent of its ruling by using its first statutory aggravating factor as a vehicle through which it nonetheless presents evidence of the robbery to the jury. (b) If the Court limits the government to presenting only the fact of prior convictions, rather than allowing protracted presentations of the underlying conduct ­ both for purposes of the statutory aggravating factor and the nonstatutory factor ­ then William would request that the Information filed in Criminal Case No. CR99-00018, which makes specific reference to the robbery conviction in 96-235 plus an escape conviction in 96-258, be redacted to merely reflect the charge of felon in possession of a firearm. (c) If the Court does neither of the above, William would then ask that the robbery conviction in 96-235 be stricken from an allegation in support of future dangerousness as impermissible double counting. WHEREFORE, William raises the issue of double counting at this time to alert the Court to its presence in the case, and reserves the right to readdress it, or to specify the
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relief he seeks, once the Court has ruled on other aspects of the government's proffer. Dated: August 25, 2006 Respectfully submitted, Patrick J. Burke Patrick J. Purke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 Denver, CO 80202 303-825-3050 By: s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

CERTIFICATE OF SERVICE I hereby certify that on August 25, 2006 I electronically filed the foregoing William Sablan's Second Supplemental Response To The Government's July 24, 2006
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Proffer Regarding Future Dangerousness with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] By: /s/ Susan L. Foreman

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