Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1764

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-17 Regarding Striking Non-Institutional Incidents
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Defendant William Sablan ("William"), through undersigned courtappointed counsel, submits the following in reply to the government's response to William's Motion To Strike Non-Institutional Incidents From Nonstatutory Aggravating Factor of Future Dangerousness [Wm DP-17]. The government's response to Wm DP-17 is contained in Document # 1736 at 3-7. 1. The government's amended Notice of Intent to Seek the Death Penalty ("NOI") alleges the nonstatutory aggravating factor of future dangerousness, that is, that William is "likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others."
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Case 1:00-cr-00531-WYD

Document 1764

Filed 04/21/2006

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(Document # 1633 at 5). As legal authority, it cites Simmons v. South Carolina, 512 U.S. 154 (1994). (Id.). As a factual basis, it lists six criminal cases in paragraphs (a)-(f) under the heading "Non-Institutional Setting." 1 (Id. at 5-8). The government contends that this "non-institutional violent conduct of William . . . in combination with his violent conduct inside prison, reveals a continuous pattern of violent behavior . . . which makes him a tremendous risk for continued violence against inmates and prison staff." (Id. at 4-5). 2. Simmons does not lend legal support to the government's claim that noninstitutional and institutional conduct are equally relevant to future dangerousness. In Simmons, the prosecution argued that the defendant's future dangerousness was a factor for the jury to consider when fixing the appropriate punishment. The trial court rejected the defendant's request to rebut the allegation of future dangerousness by informing the jury that he was ineligible for parole and would serve the rest of his life in prison if the jury returned a life sentence. The defendant was sentenced to death. The Supreme Court reversed the sentence and held that when the prosecution puts a defendant's future dangerousness at issue, the Due Process Clause requires that the jury be informed that the defendant would remain

In its response, the government has withdrawn the incident described in paragraph (d), which relates to criminal cases 90-27 (assault) and 90-30 (disturbing the peace), so paragraph (d) no longer needs consideration.
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Case 1:00-cr-00531-WYD

Document 1764

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in prison for the remainder of his life if the defendant is indeed ineligible for parole when sentenced to life imprisonment. Because the Federal Death Penalty Act only provides two sentencing options ­ death or life imprisonment without possibility of release ­ the due process principle underlying Simmons, together with the Eighth Amendment's requirement of heightened reliability, require that evidence of future dangerousness be restricted to proof that the defendant will be a continuing serious threat to the lives and safety of others while in prison. 3. The caselaw cited in Wm DP-17 also provides that future dangerousness must be evaluated in the context of life imprisonment. (See also William's Memorandum Brief In Support of His Motions To Strike Incidents . . . at pages 810). The government has failed to address that caselaw. Moreover, the government does not refute the fact that a life sentence without possibility of release will eliminate the possibility of William committing burglaries and robberies in the future. 4. In addition to the cases cited in his motion, William cites United States v. Rodriquez, 2006 WL 487117 *5 (D.N.D. Feb. 28, 2006) ("government will be limited to presenting evidence relating to Defendant's future dangerousness in the context of life imprisonment"; "[t]he threat that he may escape, be pardoned, or have his sentence commuted is simply illusory") and United States v. Llera Plaza,
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Case 1:00-cr-00531-WYD

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179 F. Supp.2d 464, 487-88 (E.D. Pa. 2001) ("the jury will be instructed that it is to evaluate the defendant's `future dangerousness' in the context of life imprisonment, and the government will be requested to limit its sentencing phase evidence to that which is relevant to a context of life imprisonment"). 5. The government's reliance on United States v. Davis, 912 F.Supp. 938, 948 (E.D. Louisiana 1996) is misplaced. The Davis court's comment about other acts of violence being relevant and probative were not made in relation to future dangerousness, instead they were made in relation to a different nonstatutory aggravating factor. WHEREFORE, William requests the Court to strike paragraphs (a) - (c), (e) & (f) under the heading "Non-Institutional Setting" incidents from the nonstatutory aggravating factor of future dangerousness. 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
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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 1764

Filed 04/21/2006

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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-17 Regarding Striking Non-Institutional Incidents with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following email addresses: [email protected] [email protected] [email protected] [email protected] By: s/Susan L. Foreman

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