Free Motion to Strike - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Action Nol. 00-CR-531-D UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants. __________________________________________________________________ Motion To Strike Incidents Listed In Support Of The Government's Nonstautory Aggravating Factor "Future Dangerousness" On The Grounds They Are Insufficiently Relevant And Reliable To Submit To The Jury [Wm DP-16] __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, respectfully requests the Court to strike the incidents alleged in the government's Notice of Intent to Seek the Death Penalty ("NOI") in support of its nonstatutory aggravating factor of "future dangerousness of the defendant" because they are insufficiently relevant and reliable to submit to the jury for purposes of its sentencing determination. As grounds, counsel state: 1. The government filed an amended Notice of Intent to Seek the Death
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Penalty ("NOI") on December 21, 2005. It alleges one nonstatutory aggravating factor, that is, the "future dangerousness of the defendant." (Docket entry # 1633 at 5). 2. Assuming arguendo that future dangerousness can be assessed accurately on the basis of past conduct, William contends that the incidents listed in the NOI in support of future dangerousness are insufficiently relevant and/or reliable to be submitted to the jury. 3. The Supreme Court has held that aggravating factors must be "particularly relevant to the sentencing decision" of whether to impose a sentence of life or death. Gregg v. Georgia, 428 U.S. 153, 192 (1976). That is, they must serve the purpose of "enabl[ing] the sentencer to distinguish those who deserve capital punishment from those who do not." Arave v. Creech, 507 U.S. 463, 474 (1993). 4. When evaluating the relevancy and reliability of other criminal conduct, be it adjudicated or not, the federal courts have looked to the statutory aggravating factors as a frame of reference, noting that those dealing with criminal history "rely[] almost exclusively on criminal convictions of either very serious or repetitive felony offenses." United States v. Davis, 912 F.Supp. 938, 944 (E.D. Louisiana 1996) (emphasis added). They conclude that:
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it should be presumed that Congress would not craft a statute which would defeat the fundamental objectives reflected in the Supreme Court's death penalty jurisprudence by relaxing the standards of reliability and relevance of nonstautory aggravating factors when it so carefully defined the statutory aggravating factors and, in so doing, confined them to a strikingly high level of relevance and reliability. Indeed, to relax the standards for nonstatutory aggravating factors "would defeat the goal of guided and measurable jury discretion, and return us to an unconstitutional system where the death penalty is `wantonly' and `freakishly' imposed." United States v. Friend, 92 F.Supp.2d 534, 544 (E.D. Va. 2000) (quoting Davis, 912 F.Supp. at 943). 5. As a result, the courts have evaluated allegations of other criminal conduct with an eye toward whether it is of sufficient severity to be relevant to the jury's decision between life and death. See United States v. Gilbert, 120 F.Supp.2d 147, 153 (D. Mass. 2000) ("[c]onsideration of relatively minor misbehavior, however disturbing, would undermine the seriousness of the death penalty decision"); Friend, 92 F.Supp.2d at 544; 545 ("an aggravating factor must have a substantial degree of gravity to be the sort of factor which is appropriate for consideration . . ." [;] ". . . not . . . any fact which makes a capital defendant more morally blameworthy, or even deserving of more punishment, thereby qualifies . . ."); United States v. Peoples, 74 F.Supp.2d 930, 932 ("tampering and dealing in stolen goods . . . are pernicious distractions . . . in considering whether a defendant
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shall live or die"). 6. In this case, the government's best evidence of future dangerousness in a prison setting (see Wm DP-17) is the charged offense and the charged statutory aggravating factor, "previous conviction of violent felony involving firearm." § 3592(c)(2). (The latter related to conduct inside a Saipan detention facility on March 9, 1999.) Based upon these incidents, the government could arguably submit the nonstatutory aggravating factor of future dangerousness. The Court should require such a limited submission, because the additional incidents listed in the NOI are insufficiently relevant and/or reliable, are more unfairly prejudicial than probative, and their cumulative presentation will confuse and mislead the jury as to the true focus of its inquiry. The additional incidents should therefore be stricken. 7. The government divides the incidents listed in support of future dangerousness between those occurring in a "Non-Institutional Setting" and those occurring in an "Institutional Setting." 8. Under "Non-Institutional Setting", the government has listed six incidents of prior criminal conduct, five of which resulted in convictions in the local courts of the Commonwealth of the Northern Mariana Islands (see Wm DP19 & Wm DP-20):
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! Paragraphs (a) and (e) allege that William pled guilty to
misdemeanor assaults in 1984 and 1990. Because these were misdemeanor convictions, they fall far below the gravity and severity of conduct listed in the statutory aggravating factors and/or the criminal conduct federal courts have considered relevant to the decision of who should live and who should die. Paragraph (a) of the NOI notes a sentence of one year, which further suggests lack of severity. Paragraph (e) of the NOI does not note a sentence. The discovery provided, however, indicates a sentence of "one (1) year, 320 days suspended (45 days to serve)". Again, this is indicative of a judicial assessment of lack of severity. Cf. USSG § 4A1.1 (fewer points are added to a defendant's criminal history if the prior sentence of imprisonment did not exceed "one year and one month"). Thus, neither conviction should be submitted to the jury.

! Paragraph (b) alleges that William pled guilty to burglary.
Regarding burglary convictions, the Gilbert case is instructive. There the government included an attempted "breaking and entering" in support of its future dangerousness nonstatutory aggravating factor. The court struck it from consideration, stating that it was "of insufficient relevance to the jury's decision on the death penalty." Gilbert, 120 F.Supp.2d at 155. It also noted that: [t]he Government has failed to explain why this incident has any bearing on defendant's dangerousness in prison,
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where she would be under lock and key. Nor is it a prior criminal act of sufficient gravity that it would be relevant as a freestanding nonstatutory aggravating factor. Id. See also Peoples, 74 F.Supp.2d at 932 (finding past convictions for stealing, tampering, burglary, receiving stolen property and unlawful possession of a weapon irrelevant to death penalty consideration; also finding six uncharged burglaries inadequately related to claim of future dangerousness in prison setting).

! Paragraphs (c) and (f) allege that William was convicted of robbery
while armed with a dangerous weapon. In both instances, however, the jury acquitted William of assault with a dangerous weapon. Thus, although robbery has the potential to result in physical harm to the victims, that did not occur in these cases. In this regard, the Gilbert case is once again instructive. There, the government argued to the court that "even in prison defendant will continue to be dangerous, because she is `a poisoner' and will use guile and cunning to obtain medications to poison staff or other inmates." Gilbert, 120 F.Supp.2d at 154. The court disagreed, stating: The proposed information lacks any substantial relevance to defendant's dangerousness in a prison setting. It is simply inconceivable that, if defendant is convicted of first degree murder in this case, she will ever have the remotest opportunity to obtain poison or medication again. Any maximum security prison to which she is likely to be sentenced for the remainder of her life will be fully aware of the circumstances of her crime and alert to
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prevent any access by defendant to poisons. Id. Similarly, if William is given a life sentence, the only people with whom he will have any contact are staff and inmates who will not be carrying valuables. Furthermore, the prior convictions listed in (a) (b) (c) and (e) are too remote in time to be adequately relevant and reliable. See United States v. Davis, 2003 WL 1873088 (E.D. La. April 10, 2003) (striking two prior juvenile adjudications, in part, because they were both over ten years old and thus remote in time). The dates of the incidents described in these paragraphs are as follows: paragraph (a) August 17, 1984; paragraph (b) August 19, 1984; (c) May 20, 1985; and paragraph (e) April 22, 1990. And as noted above, paragraphs (a) and (e) relate to misdemeanor convictions. Cf. USSG § 4A1.1, comment. (shorter prior sentences become too remote to count toward criminal history more quickly than longer sentences). Thus, paragraphs (a) (b) (c) and (e) should be stricken for the additional reason that they are too remote in time.

! Paragraph (d) presents two related "criminal cases" of assault and
disturbance of the peace occurring on Saipan in 1990. The NOI states that William assaulted the victim "with his fists, causing the victim to lose sight in one eye" and

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subsequently threatened him and his wife.1 Both cases were dismissed, however, "on motion of the government at the request of the victim." By virtue of the dismissal of these charges, they were adjudicated and cannot be raised under the concept of "unadjudicated criminal conduct" (see Wm's Memorandum Brief at 1114). Even if it considered unadjudicated criminal conduct, evidence of these incidents is insufficiently reliable to present it to the jury; if the alleged victim were to testify at the penalty phase, which will be held some 17 years after the alleged assault, it is doubtful that his testimony would be sufficiently reliable for jury consideration. See Gilbert, 120 F.Supp.2d at 153 (striking two unadjudicated incidents of assault ­ scalding a young boy in hot bath water and assaulting husband with a large kitchen knife ­ where supporting evidence would consist of testimony provided ten to thirteen years after the fact). 9. Thus for the reasons set out in Wm DP-17, as well as those stated above, all six of the "non-institutional setting" incidents alleged in paragraphs (a) - (f) should not be submitted to the jury for its life or death decision. 9. Under "Institutional Setting", the government has alleged mostly unadjudicated conduct, some of which does not constitute criminal conduct (see

The discovery provided, however, includes a doctor's report stating that it was "difficult to say how much of [the victim's] present problem was caused by his recent injury or his old surgery" on the same eye.
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Wm DP-18):

! Paragraph (a) alleges that over 20 years ago a "hacksaw blade was
confiscated" from William while an inmate in a Saipan facility. The mere three hand-written lines of discovery provided on this incident describe neither injuries nor further proceedings, and suggests that the blade was abandoned rather than found in William's possession. This incident is not sufficiently relevant to the jury's life or death decision, is insufficiently reliable and is too remote in time.

! Paragraph (b) alleges a conviction for misdemeanor assault
involving an officer at a detention facility in Saipan. For the same reasons noted for the "non-institutional setting" misdemeanor assaults, this lacks sufficient relevancy and reliability to allow the jury to consider it.

! Paragraphs (c) through (j) relate to alleged incidents that occurred
after the charged offense. Incidents (c) (d) and (e) occurred before counsel was appointed. Incidents (f) (g) (h) (i) and (j) occurred within five months of the indictment and appointment of counsel.

! Paragraph (c) alleges that William "pounded on the window of his
cell door with a cup, breaking the glass . . . [and] . . . refused to cooperate with officers . . .. " The discovery provided, however, does not state anything about glass being broken. In any event, even if property damage resulted, the incident
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did not result in reported personal injury. Similarly, paragraph (f) alleges that William "detached a metal desk from his cell wall and beat the desk against the cell door . . ." Again, no injuries to staff or another inmate were reported.

! Paragraphs (d) (e), (f), (g) and (j) allege threats of violence.
Paragraph (d) alleges that while brandishing a razor blade, William "threatened to kill the officer and to cut anyone who opened his cell door or the food slot in his door" at FCI Florence.2 Paragraph (e) alleges that William "spit on and threatened to kill prison staff" at ADX Florence. Paragraph (f) alleges that while beating a metal desk against his cell door at FCI Englewood, William "threatened to beat and kill another inmate ". Paragraph (g) alleges that while in SHU at FCI Englewood, William "became angry at prison staff . . . and threatened the staff member, saying: "You had better respect me, because I am not like the rest of these guys in here and I will fuck you up, you motherfucker." Paragraph (j) alleges that while being transported to a community hospital, William removed his seatbelt, tried to remove his restraints,

As this Court knows from previous evidentiary hearings, BOP provides inmates with razors for shaving, so William was not in possession of a prohibited item.
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and "threatened to assault staff." All of this incidents must be stricken, for as the court held in Davis: Threatening words and warped bravado, without affirmative acts, are simply too slippery to weigh as indicators of character; too attenuated to be relevant in deciding life or death; and whatever probative value they might have is far outweighed by the danger of unfair prejudice and confusion of the issues. Id. at 945.3 Although in some of these incidents, William engaged in some type of affirmative action, it was action directed at physical objects, i.e., pounding on a window, detaching a desk, removing his seatbelt. The conduct did not result in harm to any human being. The NOI's allegation of future dangerousness charges that William will be "a continuing and serious threat to the lives and safety of others." (NOI at 5) (emphasis added). Causing property damage does not fit

Additionally United States v. Walker, 910 F.Supp. 837 (N.D. N.Y. 1995), is instructive in relation to paragraph (g)'s allegation which includes vulgar language that is attributed to William. In Walker, the court threw out the nonstatutory aggravating factor of lack of remorse, which was based upon Walker's statement to a fellow inmate that he and his codefendant "killed the motherfucker." The court stated: "In light of the obvious prejudice entailed by singling out and presenting this epithet to the jury as a non-statutory aggravating factor, and in light of the numerous competing inferences which can be drawn from the use of such vulgarisms, and overall, in light of the sheer triviality of this allegation as compared to the portentous purposes for which it is alleged, the Court can conceive of no purposes for which presentation of this information as a discreet nonstatutory aggravating factor could be viewed as more probative that unfairly prejudicial." Id. at 855.
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within that description, nor does it have any validity as justification for a death sentence. See Gilbert, 120 F.Supp.2d at 155 (striking incident in which defendant allegedly threatened to stab her husband and tore a telephone off the wall of his house, on basis that "[e]ven if the incident happened in the way described, it essentially amounts to a confused and angry outburst during a heated domestic dispute, conduct of insufficient weight to count towards the death penalty. . . . Although tearing the telephone off the wall is admittedly an `affirmative act' accompanying the alleged verbal threat, the incident as a whole simply lacks sufficient gravity to be included among the factors that could lead to the defendant's execution").

! Paragraph (h) alleges that William "threw hot coffee on prison staff,
resisted removal from his cell, and broke his right arm free from soft restraints. When officers came in to secure him with hard restraints, he again physically resisted and attempted to bite the officers." The discovery provided on this incident reflects that the officer who was splashed with coffee only had a cool compress applied to a spot on his neck, and that there was no injury to the removal team.

! Paragraph (i) alleges that William "became aggressive with officers
while being escorted to a cell during cell rotation". Additionally, after being
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delivered to his cell, he "grabbed an officer by the shirt, pulling him into the bars." The discovery provided on this incident, however, states that William twice "made an aggressive turn to his left" when being moved from cell 11-204 to cell 11-202, but the move was completed with one officer holding his handcuffs and the other pressing his baton against William's left side. Moreover, the discovery does not state that the officer was pulled into the bars. Instead, it reflects that William grabbed the officer's shirt, but released it when the officer struck William's arm with his baton. No injury to either officer was reported. These institutional-setting incidents are irrelevant and/or unreliable for purposes of deciding whether William will be a continuing and serious threat to the lives and safety of prison staff and other inmates. As such, they are more prejudicial than probative. They stand in dramatic contrast to the incidents set out in the NOI relating to Rudy Sablan. See Part B.1.(b) (while incarcerated at USP Atlanta, Rudy was convicted of assault with a deadly weapon after repeatedly stabbing a fellow inmate in the head and neck with an ice-pick type weapon, twice puncturing the victim's carotid artery); Part C.1. "Institutional Setting" paragraph (a) (while incarcerated at USP Lompoc, Rudy allegedly stabbed a fellow inmate with a nine-inch shank and attempted to slash his throat); paragraph (b) (while incarcerated at USP Florence, Rudy allegedly stabbed a fellow inmate in the ear
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with a knife, and stomped and kicked him); paragraph (d) (while incarcerated at USP Florence, Rudy allegedly assaulted an inmate with his hands and feet causing serious head and body wounds to the victim). Not only are William's institutional incidents trivial when compared to Rudy's, they are also the result of the Bureau of Prisons' ("BOP") refusal to treat William despite mental health expert recommendation to do so. As the Court will recall, after their appointment counsel quickly became concerned with William's mental health and attempted to work with the BOP to get it to provide William with appropriate medication. BOP obstinately refused to acknowledge the fact that William needed treatment. Counsel eventually filed a motion seeking the Court's assistance, but the Court denied the motion and deferred to BOP as William's custodian. In the wake of William's transfer to Butner, however, we now know that when properly medicated, William is cooperative and can more easily manage his anger and paranoia. This statement is supported by the fact that the last incident noted in the government's amended NOI is May 28, 2001, almost four years ago. Under these circumstances, it would be fundamentally unfair and a violation of due process to use incidents of past conduct as grounds for a sentence of death when the conduct was a direct result of BOP's failure to treat William.
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Furthermore, the incidents listed in the NOI relating to William ­ especially the "institutional setting" incidents ­ trivialize the entire process. If William is convicted of first-degree murder, the jurors will be called upon to make a profound moral decision, that is, whether William should be executed or whether he should be allowed to live, albeit without possibility of release from prison. To allege such incidents as throwing coffee, refusing to stand for count or hand over a cup, makes a mockery of this capital punishment proceeding and the jury's moral decision. WHEREFORE, William respectfully requests the Court to strike the incidents listed in support of the government's future dangerousness nonstatutory aggravating factor on the grounds that they are insufficiently relevant and reliable to submit to the jury for consideration. Dated: February 13, 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
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Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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303-825-3050 Counsel for William Sablan CERTIFICATE OF SERVICE I hereby certify that on February 13, 2006, I electronically filed the foregoing Motion To Strike Incidents Listed In Support Of The Government's Nonstatutory Aggravating Factor "Future Dangerousness" On The Grounds They Are Insufficiently Relevant And Reliable To Submit To The Jury [Wm DP-16] with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail address: [email protected] [email protected] [email protected] [email protected] By: s/ Susan L. Foreman

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