Free Reply to Response - 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 RUDY CABRERA SABLAN, Defendants. __________________________________________________________________ William Sablan's Reply To The Government's Response To Wm DP-15 Regarding Government Production Of Documentary Evidence And Proffers Of Testimony __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, submits the following in reply to the government's response to William's Motion For Government Production Of Documentary Evidence And Proffers Of Testimony It Intends To Introduce In Support Of Future Dangerousness So The Court Can Evaluate Its Relevancy, Reliability And Its Probative Value Versus Its Unfair Prejudicial Impact [Wm DP-15]. 1. Pursuant to the Court's February 16, 2006 Order, the government filed an initial response to Wm DP-15 on February 28, 2006. (Documents ## 1697; 1711). 2. In that initial response, the government asserted that it would be
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premature for the Court to order the production sought, and it requested permission to further address the motion in its subsequent Phase III pleadings. To the extent the initial response addressed the merits of Wm DP-15, it claimed that the NOI provides Court and counsel with sufficient information to address the relevancy of the incidents listed as support of its future dangerousness now. It then urged that the reliability of the evidence relating to those incidents should/could be assessed after the guilt/innocence phase. (Document # 1711). 3. The government supplemented its response on March 27, 2006. (Documents ## 1727 &1736, Parts D). That response states that the government has no objection to providing Court and defense counsel with the information requested in Wm DP-15. It contends, however, that it should not be required to do so before the May, 2006 hearing and that it would prefer not to do so until after the guilt/innocence phase has concluded. Additionally, it contends that "[t]he defendant incorrectly asserts . . . that the proffer and evidence should be produced prior to trial." (Id. at 25). 4. Contrary to the government's latter statement, the timing of production and review of government's evidence relating to nonstatutory aggravating factors is not a matter of law to be stated correctly or incorrectly; rather, it is a matter of discretion as to how courts choose to manage their capital cases. As the parties'
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citations reflect, some courts have opted to analyze the evidence after the guilt/innocence phase, while other courts have decided to do so in advance of trial.1 It is without question, however, that Congress has "entrusted trial judges both with substantial responsibility and with broad discretion to act as guardians of the sentencing process [to] ensure that the evidence presented to the jury in capital sentencing hearings is truly worthy of consideration in a decision as grave as this." United States v. Gilbert, 120 F. Supp. 2d 147, 149 (D. Mass. 2000). 2 5. It was defense counsel's understanding that this Court set aside three weeks in May for a hearing on Phase III motions in order to allow it and counsel to analyze the relevancy and reliability of the government's evidence relating to its nonstatutory aggravating factor of future dangerousness and to allow the Court to
William offers the following comments on two of the cases cited by the government. The government lists United States v. Friend, 92 F.Supp.2d 534, 535 (E.D. Va. 2000) as an example of a case in which the court ruled that the information need not be produced until after the guilt phase. There is nothing in the Friend case, however, that suggests that the court's request for a government proffer and/or its ruling striking the nonstatutory aggravating factor was done post-trial rather than pre-trial. To the contrary, in the course of its opinion, the court discusses what will occur "[i]f [the defendants] are convicted." Id. at 536. The government also cites United States v. Llera Plaza, 179 F. Supp.2d 464 (E.D. Penn. 2001). That case is distinguishable from the case at hand. There, the court believed that much of the sentencing phase evidence would have already been introduced in the guilt/innocence phase. In contrast, the incidents listed here in support of the nonstatutory aggravating factor of future dangerousness are unrelated to the offense charged, the statutory aggravating factors charged, and to each other.
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See William's Memorandum Brief in Support of His Motion To Strike Incidents at 2-3 regarding the importance of judicial scrutiny and screening of nonstatutory aggravating factors at pages 2-3.
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conduct balancing tests of that evidence pursuant to 18 U.S.C. § 3593(c). 6. There are other reasons, besides defense counsel's understanding and the Court's schedule, why it is preferable to resolve these evidentiary matters prior to trial. The first reason is that it will take an extended period of time to try the guilt/innocence phase of this case. As a result, Court and counsel will no doubt be exhausted by its conclusion. It would be preferable, therefore, to resolve penaltyphase evidentiary matters at a time when all concerned are more rested and better able to focus on the issues at hand. Second, the Phase III motions already have resulted in the government's withdrawing three incidents listed in the NOI as support of future dangerousness. Such narrowing of focus will be beneficial to the jury, the Court, and counsel. Third, delaying resolution of these matters will necessitate releasing the jury for an extended period of time between the conclusion of the guilt/innocence phase and the commencement of the penalty

phase. 3 WHEREFORE, William respectfully requests that the Court order
This is another distinction between the instant case and Llera Plaza. The Llera Plaza court concluded that because much of the sentencing evidence would have been presented in the guilt/innocence phase, "the period of time between the guilt phase and the sentencing phase [for reviewing the evidence] may be brief." Llera Plaza, 179 F.Supp.2d at 470. For the reasons stated in footnote 2, that will not prove to be true in this case.
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government production of documentary evidence and proffers of witness testimony relating to its future dangerousness nonstatutory aggravating factor, if not prior to the May hearing, at least well before trial so the Court and counsel can analyze its relevancy, reliability and its probative value versus its unfair prejudicial impact. Dated: April 4, 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 4, 2006, I electronically filed the foregoing William Sablan's Reply To The Government's Response To Wm DP-15 Regarding Government Production Of Documentary Evidence And Proffers of Testimony 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]
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Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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

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