Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1768

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-21 Regarding Lack Of Congressional Intent For Consideration Of Future Dangerousness __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, submits the following in reply to the government's response to William's Motion To Strike The Nonstatutory Aggravating Factor Of Future Dangerousness On The Grounds Congress Did Not Intend It To Be Considered In Aggravation [Wm DP-21]. The government's response is Document # 1731. 1. In Wm DP-21, William argues that because Congress is assumed to know that other death-penalty sentencing schemes specifically provide for consideration of future dangerousness in aggravation, but did not include it within the Federal Death Penalty Act ("FDPA"), it can reasonably be inferred that Congress did not
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Case 1:00-cr-00531-WYD

Document 1768

Filed 04/21/2006

Page 2 of 4

intend its use under the federal statute. 2. In its response, the government concedes that Congress was "well aware" of the traditional use of future dangerousness as an aggravating factor under state laws. (Id. at 2). Yet from this premise, it argues that because Congress did not specifically exclude future dangerousness from the FDPA, it authorized its use as an aggravating factor. Such an argument is contrary to the principle of statutory construction that the expression of one thing is the exclusion of another. National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453, 458 (1974). Pursuant to that principle, Congress' list of statutory aggravating factors, which does not include future dangerousness, is to be construed as exclusive. 3. Moreover, the "catch-all" language in the concluding paragraph of § 3592(c), which has been found to be the basis for nonstatutory aggravating factors, can reasonably be interpreted as limited to the unique circumstances of a given case, which would be known only to the prosecution. Future dangerousness does not fall within that description. 4. Finally, more than half of the cases cited in the government's response did not address the statutory argument raised in Wm DP-21. Instead, they relied upon Jurek v. Texas, 428 U.S. 262 (1976) to conclude that consideration of future dangerousness in capital proceedings is not unconstitutional. However, it must not
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Case 1:00-cr-00531-WYD

Document 1768

Filed 04/21/2006

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be forgotten that the Texas statute at issue in Jurek specifically provided for jury consideration of future dangerousness. The FDPA does not. WHEREFORE, William respectfully requests that the Court strike the nonstatutory aggravating factor of future dangerousness from the NOI on the grounds that Congress did not intend its use. 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-21 Regarding Lack Of Congressional Intent For Consideration Of 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]
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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

Document 1768

Filed 04/21/2006

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

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