Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1770

Filed 04/21/2006

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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, RUDY CABRERA SABLAN, Defendants. __________________________________________________________________ William Sablan's Reply To The Government's Response To Wm DP-24 Regarding The Introduction Of Evidence Of Unadjudicated Criminal Conduct __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, submits the following in reply to the government's response to William's Motion To Prohibit The Government From Introducing Evidence Of Unadjudicated Criminal Conduct During The Penalty Phase [Wm DP-24]. The government's response is Document # 1733. 1. Most of the cases that have addressed the propriety of government use of unadjudicated criminal conduct in capital sentencing proceedings involved crimes that were committed while the defendant was still at large, but that did not result in criminal charges being filed. See, e.g., United States v. O'Driscoll, 250 F.Supp.2d
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Case 1:00-cr-00531-WYD

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432 (M.D. Pa. 2002) (assaults, robberies, murder); United States v. Bradley, 880 F. Supp. 271, 286-87 (M.D. Pa. 1994) (two unindicted murders). 2. The Notice of Intent to Seek the Death Penalty ("NOI") here does not give notice of crimes committed by William while at large that did not result in criminal charges. It does, however, contain analogous allegations. a) Under the "Non-Institutional Setting" heading in the NOI paragraph (d) alleges conduct that prompted criminal charges against William, but the charges were ultimately dismissed. That raised the question of whether that allegation fell within the concept of unadjudicated criminal conduct despite the filing and dismissal. The government has withdrawn that allegation, however, so that specific question need not be resolved. (Document # 1736 at 3). b) The government contends that the "underlying facts" of prior convictions are admissible, but it does not state its theory of admissibility. If such facts reflect criminal conduct beyond what was required for the offense of conviction, has that conduct been adjudicated? William submits that they have, and that they were considered irrelevant to the resolution of the case. To present them to the jury in an attempt to justify a death sentence unfairly denies the defendant the benefit of his bargain in cases where he entered guilty pleas, and rejects the jury's findings where there was a trial. Cf. Taylor v. United States, 495
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Case 1:00-cr-00531-WYD

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Filed 04/21/2006

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U.S. 575, 601 (1990) (adopting a categorical approach to prior convictions under the Armed Career Criminal Act ("ACCA"), 28 U.S.C. § 924(e) in part because "if a guilty plea to a lesser . . . offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to [the greater offense]"). c) The institutional setting incidents alleged, with the exception of paragraph (b), are unadjudicated conduct, some of which could be considered criminal, some of which clearly are not. (See Wm DP-18 regarding noncriminal institutional setting conduct). 3. The government contends that all unadjudicated criminal conduct is admissible and suggests that it need not be based upon reliable information, citing Boltz v. Mullins, 415 F.3d 1215 (10th Cir. 2005). (Response at 3). In Boltz, the Circuit did say that although "[t]he Supreme Court has emphasized the need for reliability in the determination that death is the appropriate punishment in a specific case . . . [it] 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." Id. at 1231 (internal quotation marks and citations omitted). It must be remembered, however, that Boltz was a habeas appeal and the quoted statement was made in the context of the high burden that is
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Case 1:00-cr-00531-WYD

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put on a petitioner to obtain a writ. He must establish that the state court's resolution of his claim was either contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000). Here, we are dealing with pre-trial motions, not post-conviction review of a final judgment. William is asking this Court, in its role as gatekeeper and guardian, to impose limitations on the government's use of unadjudicated conduct to ensure that the sentencing proceedings are fundamentally fair and comport with due process. Actions taken by this Court to do so will be reviewed, if at all, under a much more deferential standard than that employed in Botlz. 4. The government cites Hawkins v. Mullins, 291 F.3d 658 (10th Cir. 2002) as precluding William's Eighth Amendment objection to the use of unadjudicated conduct. Although the Hawkins opinion notes that the habeas petitioner raised his argument under the Eighth and Fourteenth Amendments, petitioner's argument and the Circuit's analysis of it focused on whether Apprendi v. New Jersey, 530 U.S. 466 (2000), a Sixth Amendment case, called into doubt the Circuit's earlier cases upholding state use of unadjudicated criminal conduct in capital sentencing. The Circuit concluded that it did not. The earlier cases noted ­ to the extent they were specific ­ addressed the constitutional right to due process. Thus Hawkins is not
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Case 1:00-cr-00531-WYD

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the definitive case for purposes of the Eighth Amendment that Hatch v. Oklahoma, 58 F.3d 1447 (10th Cir. 1995) is for purposes of due process, in relation to the use of unadjudicated criminal conduct in capital proceedings. WHEREFORE, William respectfully requests that the Court prohibit the government from introducing evidence of unadjudicated criminal conduct during the penalty phase. DATED: April 21, 2006 Respectfully submitted, Patrick J. Burke Dean Neuwirth Burke & Neuwirth P.C. 1660 Wynkoop Street, Suite 810 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 CERTIFICATE OF SERVICE I hereby certify that on April 21, 2006, I electronically filed the foregoing William Sablan's Reply To The Government's Response To Wm DP-24 Regarding The Introduction Of Evidence Of Unadjudicated Criminal Conduct with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses:
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Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

Case 1:00-cr-00531-WYD

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Filed 04/21/2006

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[email protected] [email protected] [email protected] [email protected] By: s/Susan L. Foreman

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