Free Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-CR-0531-D UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants.
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William Sablan's Memorandum Brief in Support of His Motions To Strike Incidents Listed By The Government In Support Of Its Nonstatutory Aggravating Factor of Future Dangerousness __________________________________________________________________ Patrick J. Burke Dean Neuwirth Burke & Neuwirth P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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District Courts Must Carefully Screen Nonstatutory Aggravating Factors Nonstatutory aggravating factors have great significance under the Federal Death Penalty Act ("FDPA"). When a jury is making its final sentencing determination it is to "consider whether all the aggravating . . . factors found to exist sufficiently outweigh all the mitigating . . . factors found to exist to justify a sentence of death." § 3593(e) (emphasis added). Thus ultimately a nonstatutory aggravating factor is weighed just like a statutory aggravating factor. As the court noted in United States v. Friend, 92 F.Supp.2d 534, 541 (E.D. Va. 2000): Under the sentencing scheme established by the FDPA, nonstatutory aggravating factors assume great significance in the selection decision because, along with the statutory aggravating factors, they are weighed against the mitigating factors in order to make the decision whether to impose the death penalty. As a result of their great significance, nonstatutory aggravating factors may be submitted to the jury only "after appropriate judicial scrutiny." Id. See also United States v. Gilbert, 120 F. Supp.2d 147, 149 (D. Mass. 2000) (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. Davis, 912 F. Supp. 938, 944 (E.D. La. 1996) (the FDPA, Eighth Amendment and Due Process
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"mandate[] that judicial discretion be exercised and the nonstatutory factors be carefully screened").1 Evaluating NonStatutory Aggravating Factors Both constitutional and statutory considerations are implicated in a court's assessment of alleged nonstatutory aggravating factors and the information in support thereof. Constitutional considerations include the defendant's Fifth Amendment Due Process rights. As the Supreme Court held in Gardner v. Florida, 430 U.S. 349, 358 (1977), "it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause." There are also Eighth Amendment requirements to be considered. An aggravating factor, be it statutory or nonstatutory must not be too broad, that is, it cannot apply to every defendant convicted of murder. Tuilaepa v. California, 512 U.S. 967, 972 (1993). Moreover, they may not be unconstitutionally vague; they must provide adequate guidance to the sentencer. Id. The Eighth Amendment also requires that there be heightened reliability in the determination that death is the appropriate punishment in a specific case because it is so qualitatively different from any other sentence. Woodson v. North

"[E]ven though virtually no limitation can be placed on proffered mitigation evidence, limitations can and should be placed on proffered aggravation evidence to assure the death sentence is not arbitrarily imposed." Id. n.9 (emphasis in original)
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Carolina, 428 U.S. 280, 305 (2000). Thus, the factors the jury considers must be particularly relevant to the sentencing decision. In Gregg v. Georgia, 428 U.S. 153, 192 (1976), the Supreme Court observed that: Since the members of a jury will have had little, if any, previous experience in sentencing, they are unlikely to be skilled in dealing with the information they are given. . . . To the extent that this problem is inherent in jury sentencing, it may not be totally correctable. It seems clear, however, that the problem will be alleviated if the jury is given guidance regarding the factors about the crime and the defendant that the State, representing organized society, deems particularly relevant to the sentencing decision. The FDPA's statutory provisions are also to be considered. The statute requires that the factors and their supportive information be "relevant" to the decision between life or death. § 3593(c). It also provides that they may be excluded if their probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Id. Upon consideration of these constitutional and statutory provisions, federal courts that have addressed the use of nonstatutory aggravating factors have evaluated them in terms of relevancy, heightened reliability, and balancing unfair prejudice against probative value. These concepts will be discussed in turn. Relevancy Relevancy is analyzed differently for purposes of the penalty phase in a
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capital case than it is in other sentencing situations. See United States v.Peoples, 74 F.Supp.2d 930, 932 (W.D. Mo. 1999) ("[w]hat may have been widely accepted as a matter of past practice in federal criminal sentencing is plainly unlike what a death penalty jury may appropriately consider"); Davis, 912 F.Supp. at 943 ("[w]hat might be relevant in an administrative disciplinary proceeding, or even in a sentencing hearing where the choices are between varying terms of imprisonment, is not necessarily sufficiently relevant to deciding who should be sentenced to death"). In the penalty phase of a capital case nonstatutory aggravating factors and their supportive information must be "sufficiently relevant to the consideration of who should live and who should die." Id. See also Friend, 92 F. Supp. 2d at 543 (same); Peoples, 74 F. Supp. 2d at 932 (same); Gilbert, 120 F. Supp.2d at 150 ("[a]s the Supreme Court has held, aggravating factors in death penalty cases must be `particularly relevant to the sentencing decision,' not merely relevant, in some generalized sense, to whether defendant might be considered a bad person") (quoting Gregg, 428 U.S. at 192). The courts have varied in their consideration of the role of the statutory aggravating factors in the analysis of the relevancy of nonstatutory aggravating factors. For example, in Peoples, 74 F.Supp.2d at 931, the court held that Congress
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intended the jury to consider a limited range of "deathworthy" criminal convictions and other criminal convictions "must therefore be excluded, except insofar as they may support some other theory of aggravation." Whereas other courts have considered the statutory aggravating factors, not as exclusive of other criminal history, but as informative to their relevancy determinations. See Friend, 92 F.Supp.2d at 544 ("it is appropriate to inform the analysis here by reference to the aggravating factors set out in the text of the FDPA"); Gilbert, 120 F.Supp.2d at 152 ("the court is guided by the statutory aggravating factors Congress has listed in 18 U.S.C. § 3592 . . ."); Davis, 912 F.Supp. at 944 (the statutory aggravating factors are a "ready framework for determining Congressional intent and for evaluating the relevance and admissibility of the proposed nonstatutory aggravating factors"). In this regard, the courts note that roughly half of the statutory aggravating factors deal with circumstances of the offense and the other half deal with prior criminal convictions of either very serious or repetitive felony offenses. As to past criminal conduct, they all conclude that the proposed aggravating factor must be sufficiently serious to be considered relevant. See Gilbert, 120 F.Supp.2d at 153 ("to be relevant . . . prior misconduct must at least be a crime, and a grave one and that . . . [c]onsideration of relatively minor misbehavior, however disturbing, would undermine the seriousness of the death penalty decision"); Friend, 92
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F.Supp.2d at 544 (" an aggravating factor must have a substantial degree of gravity to be the sort of factor which is appropriate for consideration"); Peoples, 74 F.Supp.2d at 932 ("[t]ampering and dealing in stolen goods may well alter judicial views as to the number of months a defendant should serve in federal prisons[;] [t]hey are pernicious distractions, however, in considering whether a defendant shall live or die"). Heightened Reliability In relation to nonstatutory aggravating factors and their supporting information, "the information must meet the `heightened standard of reliability' the Supreme Court has required in death penalty cases." Gilbert 120 F.Supp.2d at 150 (quoting Ford v. Wainwright, 477 U.S. 399, 410-11 (1986). See also United States v. Beckford, 964 F.Supp. 993, 1002 (E.D.Va. 1997) ("evidence at sentencing is subject to a due process standard of reliability"). "Reliable is synonymous with accurate." Davis, 912 F.Supp. at 948. As a result of this requirement, "some information that might be admitted in a normal sentencing hearing will be insufficiently reliable for the jury to use in considering whether a defendant should be put to death." Gilbert, 120 F.Supp.2d at 151. Probative Value Outweighed by Unfair Prejudice, Confusion of the Issues or Misleading the Jury
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The FDPA provides that information relevant to an aggravating factor may be excluded from the penalty phase "if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." It should be noted that this provision differs from Fed.R.Evid. 403, which allows for exclusion of otherwise relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . .." (Emphasis added) Thus in capital sentencing proceedings the threshold at which prejudice outweighs probative value is lower than it is under Rule 403. Gilbert, 120 F.Supp. 2d at 154. Reliability of the information is a factor of this balancing. Davis, 912 F.Supp. at 943. See also Beckford, 964 F.Supp. at 1002 (if information offered by the government is unconstitutionally unreliable, it is to be excluded as unfairly prejudicial). The Nonstatutory Aggravating Factor of Future Dangerousness Citing Simmons v. South Carolina, 512 U.S. 154 (1994), the government's Notice of Intent to Seek the Death Penalty ("NOI") alleges that "[t]he defendant 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." (Docket entry #1633 at 5).
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In the Simmons case, the prosecution argued that the defendant's future dangerousness was a factor for the jury to consider when fixing the appropriate punishment. Id. at 157. 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. Id. at 158-60. The defendant was sentenced to death. The Supreme Court reversed the sentence and held that when the prosecution puts a defendant's future dangerousness in issue, the Due Process Clause requires that the jury be informed that the defendant would remain in prison for the remainder of his life if the defendant is indeed ineligible for parole when sentenced to life imprisonment. Id. at 171 (plurality opinion); id. at 177 (O'Connor, J., joined by Rhenquist, J. and Kennedy, J.). In the instant case, the FDPA only provides the jury with two options ­ sentencing the defendant "to death or to life imprisonment without possibility of release. §3593(e). Therefore, the Due Process principle underlying Simmons and the Eighth Amendment's heightened need for reliability restrict the government's nonstatutory aggravating factor of future dangerousness to proof that the defendant is a continuing danger to others while in prison (see Wm DP-17). In United States v. Copper, 91 F.Supp.2d 90 (D.D.C. 2000), the court held
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that the government's evidence should be limited to Copper's future dangerousness within the context of serving a life sentence in the custody of the Bureau of Prisons, stating that "whatever violent or criminal capabilities Cooper has outside the prison walls has no probative value when, if not sentenced to death, Cooper will spend the rest of his life in prison if convicted of a capital offense." Id. at 11112. See also Gilbert, 120 F.Supp.2d at 154 (prosecution conceded that jury must evaluate defendant's future dangerousness in the context of life in prison setting); Peoples, 74 F.Supp.2d at 932 (future "dangerousness should not be measured in the same manner as if a defendant were to be `uncaged'; life in prison without parole, a firmly fixed federal requirement, must mean that the focus of dangerousness analysis is on prison conditions"); United States v. Nguyen, 928 F.Supp. 1525, 1542 n. 14 (jury can consider life-serving inmate's dangerousness to prison staff and other inmates under "continuing danger" nonstatutory aggravating factor); United States v. Glover, 43 F.Supp.2d 1217, 1227 n.6 (same). Use of Unadjudicated Conduct Many death-penalty cases have addressed the question of whether the government can use unadjudicated criminal conduct as either stand-alone nonstatutory aggravating factors or as information in support of nonstatutory aggravating factors such as future dangerousness. This issue has not been
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specifically addressed by the Supreme Court. See Williams v. Lynaugh, 484 U.S. 935, 935-36 (1987) (denial of certiorari) (Marshall J., dissenting) ("whether the State may, consistent with the Eighth and Fourteenth Amendments introduce evidence of unadjudicated criminal conduct at the punishment phase of a capital trial . . . presents a serious constitutional issue that has provoked a number of conflicting court decisions nationwide").2 The Tenth Circuit has looked at this issue, not for purposes of the Eighth Amendment, but for purposes of due process. In Hatch v. Oklahoma, 58 F.3d 1447, 1467 (10th Cir. 1995), it held that "the admission of evidence of unadjudicated offenses at a sentencing proceeding does not violate due process." On this issue, what is important to note for purposes of the instant case is that unadjudicated "conduct" or "offenses," mean unadjudicated criminal conduct, not reports of misbehavior (see Wm DP-18). Moreover, if criminal charges were filed, but subsequently were dismissed, those charges have been adjudicated. Thus any underlying conduct of a dismissed charge cannot be considered as "unadjudicated criminal conduct" (see Wm DP-19).

In Williams, the Fifth Circuit found no Eighth and Fourteenth Amendment violations when the State presented eyewitness testimony that petitioner had participated in a restaurant robbery 10 days before the charged murder. He had neither been charged nor convicted of the offense. William v. Lynaugh, 814 F.2d 205 (5th Cir. 1987).
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At this point in the proceedings, it is not clear whether the government intends to present unadjudicated criminal conduct. Its NOI, however, clearly suggests that it does not believe it is confined to the fact of a prior conviction, but rather that it can argue all relating underlying conduct whether or not that conduct resulted in a conviction (see Wm DP-19). Moreover, the NOI clearly suggests that the government believes that violations of BOP regulations can be transformed into "criminal conduct", be it administratively "adjudicated" or not. Depending on the government's documentary evidence and written proffers of witness testimony (see Wm DP-15) this Court may be called upon to address three questions: (1) is the government limited to proving the fact of a conviction, and thus precluded from introducing evidence of the "underlying facts" which may have supported additional charges (see Wm DP-19); (2) what standard of proof must the government meet before the jury is allowed to consider prior unadjudicated criminal conduct (discussed below); and (3) is violation of a Bureau of Prisons ("BOP") regulation included within the concept of prior unadjudicated criminal conduct (see Wm DP-18). As to burden of proof, it is without question that the government must prove its aggravating factors ­ be they statutory or nonstatutory ­ beyond a reasonable
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doubt.3 18 U.S.C. §3593(c). Therefore, in this case, the government must prove future dangerousness beyond a reasonable doubt. The question remaining is what standard of proof must the government meet before its separately listed incidents or prior criminal conduct, which have been alleged in support of future dangerousness, can be considered by the jury. This question will be rendered moot, however, if the Court confines the government's argument of future dangerousness to evidence of the pending charges and to its statutory aggravators, and it strikes the additional incidents alleged in support of future dangerousness for insufficient relevance and reliability (see Wm DP- 16). If, however, the Court reaches this issue, the standard should be beyond a reasonable doubt on the grounds that due process and heightened reliability are required in capital sentencing proceedings. See United States v. O'Driscoll, 250 F.Supp.2d 432 (M.D. Penn. 2002) (unadjudicated criminal acts offered as evidence of future dangerousness must be proved in accordance with the Federal Rules of Evidence and beyond a reasonable doubt). Conclusion

Thus in cases in which the government has alleged unadjudicated prior criminal conduct as a free-standing aggravating factor, it has been required to prove it beyond a reasonable doubt. See e.g. United States v. McVeigh, 944 F.Supp. 1478, 1490 (D. Colo. 1996).
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Because death is different in terms of severity and finality than other forms of punishment, capital cases require a greater degree of court scrutiny. "[W]hen assessing a nonstatutory aggravating factor ­ which, by definition, lacks the stamp of approval that Congress has bestowed upon the statutory aggravating factors ­ the concept of heightened reliability plays an independently significant role." Friend, 92 F. Supp.2d at 542. This Court should require the government to produce the documentary evidence and written proffers of witness testimony upon which it intends to rely, before the May hearing, so the Court can scrutinize the nonstatutory aggravating factor of future dangerousness and its supporting evidence for relevancy, reliability, and whether its probative value is outweighed by unfair prejudice (see Wm DP-15).

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
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Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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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 February 13, 2006, I electronically filed the foregoing William Sablan's Memorandum Brief in Support of His Motions To Strike Incidents Listed By The Government In Support Of Its Nonstatutory Aggravating Factor 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 address: [email protected] [email protected] [email protected] [email protected] By: s/ Susan L. Foreman

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