U.S. v. Concepcion Sablan

555 F.Supp.2d 1205

UNITED STATES of America, Plaintiff, v. 1. William CONCEPCION SABLAN, Defendants.

Criminal No. 00-cr-00531-WYD.

United States District Court, D. Colorado.

February 26, 2007.

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Donald R. Knight, Knight & Moses, Littleton, CO, Forrest W. Lewis, Forrest W. Lewis, P.C., Denver, CO, for Defendants.

ORDER

WILEY Y. DANIEL, District Judge.

THIS MATTER came before the Court on a hearing on November 6 and 7, 2006. The hearing addressed challenges to the prior convictions and incidents the Government intends to use in support of its nonstatutory aggravating factor of future dangerousness and the statutory aggravating factor under 18 U.S.C. § 3592(c). This Order addresses my rulings on the admissibility of the prior convictions and incidents used to support the pertinent aggravating factors, as well as legal issues related to those challenges.

I. BACKGROUND

By way of background, on April 13, 2006, I issued an Order requiring the Government to file a proffer of the evidence it intends to rely on in connection with the incidents it seeks to use in support of the nonstatutory aggravating factor of future dangerousness. On May 10, 2006,1 issued a Minute Order stating that "any issues about whether the particular incidents are relevant under the circumstances of this case, the reliability of those particular incidents, and whether the incidents are admissible under 18 U.S.C. § 3593(c)" were deferred to the hearing that this Order addresses (then set to commence August 28, 2006).

I issued a ruling on the legal challenges in the Phase III motions (challenges to the penalty phase) by Order dated July 6, 2006, 2006 WL 5737199. That Order deferred and/or denied without prejudice challenges made by the Defendants as to the particular incidents and/or convictions, stating that those issues would be addressed at the November hearing. Specifically, the Order:

1) denied without prejudice William Sablan's Motion To Strike NonInstitutional Incidents From Nonstatutory Aggravating Factor Of Future Dangerousness [Wm DP-17] to the extent it sought to strike the specific noninstitutional incidents. The Order stated that the Court would "need to evaluate each incident alleged in the Second Amended NOI to determine whether it-is relevant to the issue of future dangerousness in the context of life in prison, whether it is sufficiently reliable, and whether the requirements of 18 U.S.C. § 3593(c) are met, i.e., that the probative value of this evidence is not outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury." (Order of July 6, 2006 at 15-16.)

2) denied without prejudice William Sablan's Motion to Strike Threatening Violence, Low Rehabilitative Potential, and Lack of Remorse From The Government's Notice Of Intent To Seek The Death Penalty [Wm D22] to the extent it sought a ruling as to the admissibility of specific evidence. As to threats of violence, the Order stated, "I do not believe that threats should be excluded on a per se basis. Instead, I will decide the admissibility of the specific threats at issue at the August hearing when I hear them in context." (Order of July 6, 2006 at 16-17.)

3) denied without prejudice William Sablan's Motion To Limit Evidence Of Prior Convictions To The Fact Of Conviction And To Exclude Evidence Of Underlying Conduct [Wm DP-19] to the extent it requested that the Court determine whether the probative value of the convictions is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury pursuant to 18 U.S.C. § 3593(c). The Order also stated that Defendant's argument that admission of the underlying facts as to convictions entered as the result of a plea agreement is unfair because it denies him the benefit of his bargain would be "addressed in context in connection with the actual conviction being considered." (Order of July 6, 2006 at 25.)

4) denied without prejudice William Sablan's Motion To Prohibit The Government From Introducing Unadjudicated Criminal Conduct During the Penalty Phase [Wm DP-24] to the extent it argued that the specific unadjudicated criminal conduct at issue is not sufficiently relevant and reliable and that it should be excluded under 18 U.S.C. § 3593. (Order of July 6, 2006 at 30-31.)

5) denied without prejudice William Sablan's Motion to Strike Institutional Setting Incidents from Future Dangerousness on the Grounds that the Conduct Alleged Is Not Criminal Conduct [Wm DP-18] to the extent it sought to strike specific incidents, stating that the Court needs "to make an individualized determination as to the admissibility of each incident at the evidentiary hearing." (Order of July 6, 2006 at 31.)

6) deferred a ruling on the entirety of William Sablan's 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 [Wm DP-16]. (Order of July 6, 2006, at 32.)

7) denied without prejudice William Sablan's Motion To Prohibit The Use of Prior Convictions Obtained In The Local Courts Of The Commonwealth Of The Northern Mariana Islands On The Grounds That The Federal Death Penalty Act Neither Provides For, Nor Contemplates, Their Use And That They Are Insufficiently Reliable [Wm DP-20] to the extent it argued that the specific prior convictions at issue were unreliable and inadmissible (Order of July 6, 2006, at 36.)

The Government filed its Proffer of Penalty Phase Evidence in Support of Non-Statutory Aggravating Factor of Future Dangerousness of William Concepcion Sablan on July 24, 2006. Defendant filed a response on August 7, 2006, and also filed objections to the proffer based on its incompleteness. By Order dated August 11, 2006, the Government was ordered to file an amended proffer indicating what evidence had been produced in support of the proffer and what evidence had not been produced. On August 25, 2006, Defendant filed supplemental responses to the proffer.

On August 28, 2006, the Government filed its Amended Proffer of Penalty Phase Evidence in Support of Non-Statutory Aggravating Factor of Future Dangerousness of William Conception Sablan. Defendant filed a response on September 11, 2006. The response argues that the amended proffer submitted new evidence that was not in the original proffer, and that such evidence should be stricken as untimely. I deny Defendant's request to strike that evidence, finding that the evidence was tendered sufficiently in advance of the hearing to allow Defendant an adequate opportunity to respond. Thus, I find no prejudice to Defendant as a result of the disclosure of this evidence. However, as discussed later in this Order, any evidence disclosed by the Government to Defendant after the filing of the amended proffer is untimely and cannot be used in the penalty phase of this case.

Also on September 11, 2006, William Sablan filed a Motion for Order Directing the Government to Provide the Court with the Documents, Tapes, and Trial Transcripts Noted in its Amended Proffer in Advance of the November 6, 2006 Hearing. That motion was granted by Order dated September 25, 2006. The Government submitted this evidence to the Court prior to the hearing.

At the hearing, the Government called witnesses who testified about the particular convictions and incidents the Government seeks to use in support of future dangerousness and its statutory aggravating factor under 18 U.S.C. § 3592(c)(2). The Government also tendered a notebook of its exhibits for the Phase III hearing. The evidence was reviewed, and argument was taken by counsel as to the admissibility of the prior convictions and incidents. I now turn to my analysis of these issues.

II. ANALYSIS

A. Legal Framework

1. The Federal Death Penalty Act Generally

Under the Federal Death Penalty Act ["FDPA"], if the attorney for the government has filed a notice of intent to seek the death penalty and if the defendant is found guilty of or pleads guilty to a federal offense that carries the potential of a death sentence, the defendant is entitled to "a separate sentencing hearing to determine the punishment to be imposed." 18 U.S.C. § 3593(b). During this separate hearing, referred to as the sentencing or penalty phase, the same jury that determined the defendant's guilt considers whether the government has sustained its burden of proving the existence of one or more statutorily defined aggravating factors beyond a reasonable doubt. Id., § 3593(c), (d). A finding that an aggravating factor exists must be unanimous. Id., § 3593(d). If the jury finds that the government has not sustained its burden of demonstrating the existence of at least one statutory aggravating factor, the death penalty may not be imposed. Id.

If the jury finds that the government has sustained its burden in this regard, the jury must next "consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death." 18 U.S.C. § 3593(e).¹ "Based upon this consideration, the jury by unanimous vote ... shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence." Id.

2. The Evidentiary Standard Applicable to Penalty Phase.

18 U.S.C. § 3593(c) sets out the evidentiary standard that applies during the penalty phase of a capital trial. It provides in pertinent part that "information may be presented as to any matter relevant to the sentence." Id. "Information is admissible regardless of its admissibility under the rules governing admission of evidence at...