Free Brief - 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 Case No. 00-cr-00531-WYD-02 UNITED STATES OF AMERICA, Plaintiff, v. 2. RUDY CABRERA SABLAN, Defendant.

GOVERNMENT'S BRIEF REGARDING ADMISSIBILITY OF PRIOR TRIAL TESTIMONY OF PENALTY PHASE WITNESS KYUNG MUN

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, and through Brenda K. Taylor and Philip A. Brimmer, Assistant U.S. Attorneys, herein submits its brief on the issue of the unavailability of and admissibility of the prior sworn testimony of penalty phase witness Kyung Mun. INTRODUCTION The Court has directed the government to undertake an investigation of the whereabouts of penalty phase witness Kyung Mun in order to determine his "unavailability" under Fed. R. Evid. 804. Mr. Mun was the victim of a violent assault by the Rudy Sablan at USP-Atlanta in 1996. The defendant went to trial in that case in 1997 on charges of attempted murder, assault with intent to murder, and assault with a dangerous weapon. He was convicted of assault with a dangerous weapon. The

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government has alleged this conviction, and the facts surrounding it, as evidence of the non-statutory aggravating factor of future dangerousness in support of the imposition of the death penalty. The government believes that Mr. Mun, who is a citizen of Korea, is currently residing in Korea, beyond the reach of a subpoena. Based on his likely unavailability, the government will seek to admit, at the penalty phase of the trial, the transcript of Mr. Mun's testimony in U.S. District Court for the Northern District of Georgia. It would not violate the defendant's right to confrontation to do so, as explained below. LEGAL ANALYSIS Use of prior testimony would not violate Defendant's right to confrontation. The Sixth Amendment Confrontation Clause guarantees an accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. Under this clause, testimonial hearsay can be introduced only if the witness is unavailable and the defendant had an earlier opportunity for cross-examination. See Crawford v. Washington, 541 U.S. 36, 51-52 (2004). As the following memorandum of law establishes, those conditions exist here. Rule 804 of the Federal Rules of Evidence provides for the admission, where the declarant is unavailable as a witness, of: Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by 2

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direct, cross, or redirect examination. Fed.R.Evid. 804(b)(1). In resolving the issue of admissibility under Rule 804(b)(1), the Second Circuit has observed that the opportunity for cross-examination "`is generally satisfied when the defense is given a full and fair opportunity to probe and expose [the] infirmities [of testimony] through cross-examination, thereby calling to the attention of the fact finder the reasons for giving scant weight to the witness's testimony." United States v. Garcia, 117 Fed.Appx. 162, at *2 (2d Cir. 2004) (quoting United States v. Salim, 855 F.2d 944, 953-54 (2d Cir. 1988)). The criminal penalties faced in both cases are severe. Defendant's motive to cross-examine the witness in the first trial - to avoid conviction of a serious felony - is "substantially similar" to that in the instant case. In addition, the adequacy of cross-examination is particularly strong when "both proceedings are trials and the same matter is seriously disputed at both trials, . . . [such] that the side opposing the version of a witness at the first trial had a motive to develop the witness' testimony similar to the motive at the second trial." Id. For a similar motive to obtain, "the questioner must not only be on the same side of the same issue at both proceedings but must also have a substantially similar degree of interest in prevailing on that issue." United States v. DiNapoli, 8 F.3d 909, 912 (2d Cir.1993). That is the situation in the instant case. Here, the defendant and Kyung Mun were brought face-to-face in defendant's 1997 trial. The witness testified under oath, and the defendant's opportunity to cross-

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examine the witness was full and adequate. In addition, the "same matter" was effectively disputed at the first trial. At the defendant's previous trial, the witness testified for the government that he was a victim of the defendant's assault. He described the circumstances of the offense, his injuries, and identified the defendant as the assailant. In the present prosecution, the testimony would be used to prove the exact same things. Any claim that since the defendant is now facing the death penalty, his motive for cross-examining the witness is much greater than it was in his previous prosecution is unavailing here. The witness's testimony concerns only the defendant's actions in assaulting Mr. Mun with a dangerous weapon, not the murder with which he is charged in the present prosecution. Cf. United States v. Taveras, 436 F. Supp.2d 493, 510 (E.D.N.Y. 2006). "Where, as here, both cases involved serious felonies with substantial potential punishments, and the conduct to be proven by the prior testimony in the first trial is identical to that to be proven by the testimony in the second trial, a defendant's motive will have been sufficiently similar to justify admission." Id. at 510-11. Additionally, the issue was "seriously disputed" in the previous trial. Id. The transcript of Mr. Mun's testimony at the prior proceeding, Attachment 1, reveals that the cross-examination was vigorous and detailed. Kyung Mun is unavailable to testify. A witness is unavailable if he "is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance ... by process or other

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reasonable means." Fed.R.Evid. 804(a)(5). A witness is not "unavailable" for purposes of the Rule "unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial." Barber v. Page, 390 U.S. 719, 725 (1968) (Sixth Amendment violated by admission of prior testimony where state prosecutors made no effort to secure appearance of witness in federal custody). No precise formulation determines whether the proponent of testimony has made a good faith effort to procure the witness's live testimony. "The lengths to which the prosecution must go to produce a witness is a question of reasonableness." Ohio v. Roberts, 448 U.S. 56, 74 (1980), abrogated on other grounds by Crawford, supra. Courts may accept the assertions of counsel on the facts relating to unavailability. United States v. Sindona, 636 F.2d 792, 803-04 (2d Cir.1980); United States v. Ozsusamlar, 428 F. Supp. 2d 161, 176-77 (S.D.N.Y.2006). See also 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 804.03(6)(e) (Joseph M. McLaughlin ed., Mathew Bender 2d ed. 2005) ("Unavailability on the ground of inability to procure attendance may be determined without a formal hearing and unencumbered by the rules of evidence except those concerning privileges."). The government's efforts in this instance compare favorably with those found sufficient in Sindona, 636 F.2d at 804 (witnesses were "unavailable" within meaning of Rule 804 when their location in a foreign nation was known but consular employee indicated that the witnesses were unwilling to return to the United States). See also

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Mancusi v. Stubbs, 408 U.S. 204, 213 (1972) (testimony of key witness from prior trial admissible where witness unavailable because of residence in France); Ozsusamlar, 428 F. Supp. 2d at 177 (government provided "FBI" with identifying information for Turkish witnesses, which the FBI then passed on to an FBI contact in Turkey, who in turn contacted Turkish law enforcement authorities; despite this effort, witnesses could not be found). Here, as explained in the attached affidavit of FBI Special Agent Martin Daniell, Attachment 2, an investigation has been conducted into the whereabouts of the witness, who is believed to reside in Korea. SA Daniell has verified, through agents of the Immigration and Naturalization Service, that Mr. Mun was deported from the United States to Korea, and that he departed on March 30, 1999, by sea from Seattle. Agent Daniell also has requested Korean authorities to attempt to locate Mr. Mun inside Korea. As of this date, they have narrowed the search to one person and are currently trying to locate him. It is unknown at this time whether their search will be successful. Moreover, even if Korean authorities do locate Mr. Mun, he may not be willing to return to the United States to testify. Because the witness is not a national or resident of the United States, he is not subject to service of process, since the federal district court's power of subpoena does not extend to non-citizens beyond the nation's borders. See Fed.R.Crim.P. 17(e)(2) (subpoena of witness in foreign nation governed by 28 U.S.C. § 1783); 28 U.S.C. § 1783(a) ("A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body

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designated by it, of a national or resident of the United States who is in a foreign country" (emphasis supplied)); United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir.1984) (foreign citizens not amenable to service of United States process absent treaty or statute so providing); United States v. Mejia, 376 F.Supp.2d 460, 465 (S.D.N.Y.2005) ("Because witness is a Dominican citizen residing in the Dominican Republic, his presence cannot be obtained through the process of serving him with a subpoena."). Furthermore, treaties do not generally serve as a mechanism under which either nation must compel a witness' attendance in the other country. Ozsusamlar, 428 F. Supp. 2d at 177. Both the Supreme Court and the Tenth Circuit have stated that the right to live confrontation "must occasionally give way to considerations of public policy and the necessities of the case." Mattox v. United States, 156 U.S. 237 (1895) (approving the use of transcripts of testimony taken at a former trial, given by a witness who had died before the retrial); United States v. Allen, 409 F.2d 613 (transcripts of witnesses' testimony properly received at trial where the defendant confronted the witnesses at the preliminary hearing, the witnesses were under oath at the time and the defendant was afforded a complete and adequate opportunity for cross-examination). WHEREFORE, the government, pending the completion of the search for Mr. Mun, respectfully urges the Court to hold that Mr. Mun is unavailable to testify and that

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his former testimony is admissible in the penalty phase of this trial.

Respectfully submitted this 25 th day of January, 2008. TROY A. EID United States Attorney BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 25th day of January, 2008, I electronically filed the foregoing GOVERNMENT'S BRIEF REGARDING ADMISSIBILITY OF PRIOR TRIAL TESTIMONY OF PENALTY PHASE WITNESS KYUNG MUN with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Forrest W. Lewis FORREST W. LEWIS, P.C. 1600 Broadway, Suite 1525 Denver, Colorado 80202 Telephone: (303) 830-2190 Facsimile: (303) 830-1466 E-mail: [email protected] Attorney for Defendant Rudy Sablan Donald R. Knight KNIGHT & MOSES, LLC 7852 S. Elati Street, Suite 201 Littleton, Colorado 80120 Telephone: (303) 797-1645 Facsimile: (303) 730-0858 Email: [email protected] Attorney for Defendant Rudy Sablan

s/ Veronica Ortiz VERONICA ORTIZ Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: (303) 454-0335 Fax: (303) 454-0406 E-mail address: [email protected]

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