Free Status Report - 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. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant.
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Status Report Regarding The Parties' Proposed Jury Instructions ________________________________________________________________________ The parties have met and conferred regarding proposed jury instructions. Pursuant to the Court's Order of January 19, 2007, undersigned counsel is filing this report on behalf of both parties, setting out their areas of agreement and disagreement. It should be noted, however, that counsel for the government have been unable to review this report prior to its filing. The parties' last discussion occurred as recently as Sunday February 11, 2007. Since then, government counsel have either been in court or interviewing witnesses. Presumably, they will notify the Court at the instruction conference scheduled for February 21, 2007 or file clarification with the Court prior to that date in the event they disagree with any of the representations made in this report. A) There is a basic disagreement about "presumptive" use of Tenth Circuit pattern instructions. For the most part, the prosecution's proposed instructions are derived from

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those pattern instructions, and it takes the position that the Court will and should use them. On the other hand, the defense position is that those instructions are not binding on the Court, can be improved upon, and are essentially untested. B) Assuming the Court will presumptively use the pattern instructions, the prosecution has agreed that the following changes to their proposed instructions should be made: 1) All references to "the second superseding indictment" should be changed to "the indictment" or "the charge". 2) The second sentence in the "Duty to Follow Instructions" (p. 4) states: "But in determining what actually happened ­ that is in reaching your decision as to the facts ­ it is your sworn duty to follow all of the rules of law as I explain them to you" is incorrect. It should be changed to read something like: "It is your duty as jurors to follow the law as stated in all of the instructions of the Court and to apply these rules of law to the facts as you find them to be from the evidence received during the trial." (See William Sablan's Proposed Jury Instructions for the Guilt/Innocence Phase at 1). 3) The specific listing of the witnesses within the instructions entitled "Impeachment By Prior Inconsistencies" (p. 11) and "Expert Witness" (p 14) should be disregarded. 4) The instruction entitled "Expert Witness" (p. 14) should be expanded to inform the jurors that expert opinions can be accepted in whole or in part or rejected in whole or in part.
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5) The concept ­ William Sablan "is not on trial for any act, conduct, or crime not charged" ­ that is included in the instruction entitled "Caution ­ Consider Only Crime Charged" (p. 15) should be included in the earlier instruction on presumption of innocence ­ burden of proof ­ reasonable doubt. 6) The concept ­ the indictment is not evidence ­ stated in the instruction entitled "The Second Superseding Indictment Is Not Evidence" (p. 18) should be included in the earlier instruction on presumption of innocence ­ burden of proof ­ reasonable doubt. 7) The language in the instruction entitled "Self-Defense or Defense of Another" (p.21), stating that "[t]he defendant William Sablan has offered evidence that he was acting in self-defense" should be changed to read "you have heard evidence that William Sablan was acting in self-defense." Further, the language "[t]o find the defendant guilty of the crime charged . . ." should be changed to read that "[t]o find Mr. Sablan guilty of the crime charged in the indictment or of any of its lesser-included offenses . . .." 8) The instruction entitled "First Degree Murder 18 U.S.C. § 1111" (p. 21) should include two additional elements, that is, the defendant did not act in self-defense and the defendant did not act upon sudden quarrel or in the heat of passion, as well as definitions of those terms. 9) The instruction entitled "Aid and Abet 18 U.S.C. § 2(a)" should be changed to inform the jurors that an aider and abettor must have the mental state required
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for a conviction of the crime under consideration, i.e., first degree murder or its lesserincluded offenses. C) Again assuming the Court will presumptively use the pattern instructions included in the prosecution's proposed instructions for the penalty phase, the prosecution has agreed that the following changes to their proposed instructions should be made: 1) The instruction entitled "Sentencing Choices and Responsibility" should specify: "In the federal system, a sentence of life imprisonment precludes release at any time, because there is no parole in the federal system." (See William Sablan's Proposed Preliminary Jury Instructions for the Penalty Phase at 1). 2) There are two statements in the instruction entitled "Summary of Deliberative Process" (pp. 40-42) that should be changed. The first states: "Second, if you find the defendant is eligible for a death sentence, you must determine whether such a sentence is justified and, thus, must be imposed" (p. 40). It should be amended by deleting the language "and, thus, must be imposed". The second states: "If you determine that the factors do justify a death sentence, that sentence must be imposed" (p. 42). This sentence should be deleted. Additionally, the heading "Justification and selection of sentence" should be changed to read simply "Selection of sentence". 3) The instruction on "Evidence" (p. 43) should include a discussion of the credibility of witnesses and language reflecting that a witness's testimony may be accepted in its entirety, partially, or not at all. 4) The last sentence of part "1. Previous Conviction of Violent Felony
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Involving Firearm" of the instruction entitled "Statutory Aggravating Factors" (p. 50) should be changed from "[t]hese convictions are regarded as `state' offenses'" to "[t]hese convictions are regarded as `federal offenses' . ..." 5) The instruction entitled "Heinous, Cruel, or Depraved Manner of Committing the Offense" (p. 54) should be changed by deleting the terms "cruel" and "torture" from the title (if titles are used) and from the first and second paragraphs, because they were not alleged. 6) The prosecution will not object to changing the instruction on "NonStatutory Aggravating Factors [sic] Future Dangerousness of the Defendant" (p. 56) to the extent the Court has ruled that the consideration of this factor is to be limited to the prison setting. D) The prosecution is considering, but is undecided, about the following changes urged by the defense: 1) Changing the witness credibility instructions for both phases to reflect a statement of factors to consider rather than questions for the jurors to ask themselves. 2) Its proposed use of the preponderance of the evidence standard for the jury's determination of the voluntariness of the defendant's statements (p. 20). 3) The elimination of the "Proof of Knowledge or Intent" instruction (p. 32) due to lack of clarity as to how it relates to the case. 4) The deletion of mental states ## 3 & 4 in penalty phase instruction entitled "Intent Requirement" (p. 46) because they are irrelevant to a charge of first
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degree murder. 5) Deleting the narrative about the prior conviction in part "1. Previous Conviction of Violent Felony Involving Firearm" of the instruction entitled "Statutory Aggravating Factors" (p.50). Both parties are awaiting the Court's Phase III rulings relating to this statutory aggravating factor. 6) Whether it is appropriate to list the statutory and nonstatutory mitigating factors together and not give separate instructions on each of the statutory mitigating factors. E) The parties are unable to agree on the following for purposes of the guilt/innocence phase: 1) The order in which the instructions should be given. 2) Instructions on Presumption of Innocence ­ Burden of Proof ­ Reasonable Doubt 3) The definitions of premeditation, malice aforethought, intoxication and mental disease or defect. Also, whether to set out as elements of first degree murder that William Sablan's capacity to premeditate, that is, plan and deliberate the killing, was not negated by intoxication and/or mental disease or defect. 4) Whether the credibility of the witnesses instruction should address law enforcement and correctional officers. F) The parties are unable to agree on the following for purposes of penalty phase instructions:
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The pattern instructions' approach of focusing the jurors' attention to the justification of a death sentence, rather than acknowledging their ability to affirmatively choose between a sentence of life imprisonment without possibility of release or a sentence of death. G) There may be additional instructions tendered by the parties that cover the areas listed above, as well as other areas. WHEREFORE, undersigned counsel submits this status report regarding the parties' proposed jury instructions. Dated: February 13, 2007 Respectfully submitted, By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan

CERTIFICATE OF SERVICE I hereby certify that on February 13, 2007, I electronically filed the forgoing Status Report Regarding The Parties' Proposed Jury Instructions with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e7

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mail addresses: [email protected] [email protected]

By: /s/ Susan L. Foreman

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