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. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM SABLAN, Defendant.
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William Sablan's Supplemental Brief on the Draft Instructions for the Guilt/Innocence Phase ________________________________________________________________________ William Sablan, through undersigned court-appointed counsel, respectfully submits this supplemental brief as requested by the Court on February 22, 2007. Background The proposed instructions of the parties, as well as the Court's draft instructions, reflect agreement that an essential element of first degree murder is that the offense occur within the special maritime and territorial jurisdiction of the United States. However, how that element may be established is disputed. The Court's draft instruction on first degree murder (and on lesser-included offenses) specifies that special maritime and territorial jurisdiction is an essential element of the offense, which must be proven by the government beyond a reasonable doubt.

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Nonetheless, it further states: You are instructed that the alleged murder of Mr. Estrella occurred within the special maritime and territorial jurisdiction of the United States if you find beyond a reasonable doubt that such offense occurred in the location described in the indictment. That location is the Special Housing Unit of the United States Penitentiary in Florence, Colorado. Draft Instruction 17. Thus the instruction splits the element into two components; it treats the determination of whether the offense occurred at USP Florence as a finding of fact for the jury, but it directs that USP Florence is within the special maritime and territorial jurisdiction of the United States as a matter of law. At the February 22, 2007 instruction conference, Mr. Sablan objected to this draft instruction, arguing that the jurisdictional element is a factual issue that must be submitted to the jury. He relied upon the Note on the first degree murder instruction in O'Malley, Grenig, & Lee, 2A Federal Jury Practice and Instructions § 45.06 (5th ed.) (2000). That Note states: There had been a split among jurisdictions as to whether the element of federal jurisdiction was a question of law or fact. However, after the recent opinion in United States v. Gaudin, 515 U.S. 506 (1994), it is more likely that courts will hold that federal jurisdiction is an element of § 1111 and will require that the issue be submitted to the jury. As a result, the Court requested supplemental briefing on the issue. Special Maritime and Territorial Jurisdiction Most of the caselaw addressing the treatment of special maritime and territorial
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jurisdiction ("SMTJ") analyzes it in terms of Fed. R. Evid. 201, the evidentiary rule on judicial notice. The relevant provisions of Rule 201 are as follows: (a) Scope of rule. This rule governs only judicial notice of adjudicative facts. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. ***** (g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. As subsection (a) states, the rule only applies to "adjudicative" facts. An "adjudicative" fact has been described as "simply the facts of the particular case." United States v. Bello, 194 F.3d 18, 22 (1st Cir. 1999) (quoting Advisory Committee's note to Rule 201). Such facts are distinguishable from "legislative" facts. The latter have been described as "those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body." United States v. Hernandez-Fundora, 58 F.3d 802, 811 (2d Cir.) (citing Professor Kenneth Davis, "An Approach to Problems of Evidence in the Administrative Process," 55 Harv.L.Rev. 364, 404-07 (1942)), cert. denied, 115 S. Ct. 2288 (1995). At least two Circuits have concluded that the existence of SMTJ is a legislative fact. See Hernandez-Fundora, 53 F.3d at 811 (legislative fact that FCI Rayborn within
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the SMTJ of the United States); United States v. Bowers, 660 F.2d 527-31 (5th Cir. 1981) (legislative fact that Fort Benning within the SMTJ of the United States). These decisions were driven, no doubt, by the fact that the lower courts had failed to instruct the jury pursuant to subsection (g) of Rule 201, that is, they failed to instruct their juries that they were permitted, but not required, to accept as conclusive the facts the courts had judicially noticed. Hernandez-Fundora, 53 F.3d at 810-11; Bowers, 660 F.2d at 530-31. By concluding that a legislative, rather than an adjudicative, fact had been judicially noticed, the Circuits rendered Rule 201 inapplicable. This approach has been criticized. See Bello, 194 F.3d at 23 n. 4 ("[o]ne court has resolved the problem by a dubious holding that the fact that Fort Benning is under the jurisdiction of the United States is a legislative fact," citing Bowers) (quoting Wright & Graham, Federal Practice & Procedure § 5103 n. 16 (1999 Supp.)). More commonly, the Circuits have treated the existence of SMTJ as an "adjudicative" fact, thus making subsection (g) of Rule 201 applicable to the finding. See e.g. Bello, 194 F.3d at 23 (where a prison sits is an adjudicative fact). They have reviewed cases in which the lower courts have made judicial notice of SMTJ contingent upon the jury's determination that the locus of the crime was as alleged in the indictment. See e.g.,United States v. Warren, 984 F.2d 325, 327 (9th Cir. 1993) ("[a] district court `may determine as a matter of law the existence of federal jurisdiction over the geographic area, but the locus of the offense within that area is an issue for the trier of fact'") (quoting United States v. Gipe, 672 F.2d 777, 779 (9th Cir. 1982). Cf. United
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States v. Stands, 105 F.3d 1565, 1575 (8th Cir. 1997) (whether the crime in fact occurred on a particular piece of land or within a particular area is a factual issue for the jury, but whether that land is within Indian Country probably should have been determined by the court, rather than the jury). This Court's draft instructions adopt such a bifurcated approach. Another issue addressed in the caselaw is the consequence of a trial court's failure to comply with Rule 201(g) if it has taken judicial notice of SMTJ. The Tenth Circuit has held that such a failure did not constitute plain error in United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980). However, in view of Mr. Sablan's stated objections, Piggie offers little guidance to this Court. By way of contrast, in Bello the First Circuit affirmed the lower court's judicial notice that the Metropolitan Detention Center in Guannabo, Puerto Rico was within the SMTJ of the United States for purposes of a federal assault charge. In doing so, it noted that the trial court "meticulously followed the command of Rule 201(g)." Bello, 194 F.3d at 25 (quoting United States v. Deckard, 816 F.2d 426, 428 (9th Cir. 1987). It did so by informing the jury not only that it was taking judicial notice of that fact, but also that: "As with any fact presented in the case, however, the final decision whether or not to accept it is for you to make and you are not required to agree with me." Id. This Court's draft instructions do not contain a similar instruction on judicial notice. Gaudin and the Fifth and Sixth Amendments
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In its decision, the Bello court noted that "[o]f course, compliance with Rule 210 does not establish that application of Rule 201in this case was constitutional. The Sixth Amendment of the Constitution guarantees to a criminal defendant the opportunity for a jury to decide guilt or innocence." Id. at 25. It noted that "[a] judge may not direct a verdict of guilty no matter how conclusive the evidence." Id. (quoting United Brotherhood of Carpenters and Joiners v. United States, 330 U.S. 395, 408 (1947). Further, "[a] plea of not guilty places all issues in dispute, even the most patent truths." Id. (quoting United States v. Mentz, 840 F.2d 315, 320 (6th Cir. 1988). It then discussed the Sixth Circuit cases of United States v. Mentz, 840 F.2d 315, 322 (6th Cir. 1988) and United States v. Jones, 580 F.2d 219 (6th Cir. 1978). In Mentz, the Sixth Circuit stated that "[a] trial court commits constitutional error when it takes judicial notice of facts constituting an essential element of the crime charged, but fails to instruct the jury according to Rule 201(g). The court's decision to accept the element as established conflicts with the bedrock principle that government must prove beyond the jury's reasonable doubt, every essential element of the crime." Mentz, 840 F,2d at 322 (emphasis in original). Similarly in Jones, the Circuit noted that subsection (g) of Rule 201 preserves the jury's "traditional prerogative to ignore even uncontroverted facts in reaching a verdict" and thereby prevents the trial court from transgressing "the spirit, if not the letter, of the constitutional right to a jury trial by effectively permitting a partial directed verdict as to

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the facts in a criminal case." Jones, 580 F.2d at 224. 1 The Bello court ultimately concluded that because judicial notice is non-conclusive in criminal cases under Rule 201(g), the defendant rights to due process and jury trial had been adequately safeguarded. Id. at 25. It discussion, however, inevitably leads us back to the Supreme Court holding in Gaudin. Gaudin was prosecuted under 18 U.S.C. § 1001 for making false statements to a federal agency to obtain loans. The trial court instructed the jury that the government was required to prove, inter alia, that the alleged false statements were material to the activities and decisions of the federal agency. Nonetheless, it further instructed the jury that: [t]he issue of materiality . . . is not submitted to you for your decision but rather is a matter for the decision of the court. You are instructed that the statements charged in the indictment are material statements. Gaudin, 515 U.S. at 508. One of the arguments advanced by the government in Gaudin that was rejected by the Court is particularly relevant to the issue at hand in that it parallels the historical treatment of SMTJ. The government argued that the jury's role was limited to "the factual components of the essential elements," while materiality was a legal decision for

Mentz and Jones did not deal specifically with SMTJ. In Mentz, the trial court directed the jury that the bank allegedly robbed was insured by the FDIC, an essential element of the robbery charge, and in Jones, the trial court directed that Southern Bell was a person engaged as a common carrier, an essential element of the charge of illegally intercepting telephone conversations. 7

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the court. Id. at 511. The Supreme Court interpreted this argument as meaning that the determination of what statements were made and what decision the agency was trying to make were historical facts for the jury, whereas the ultimate determination of whether the statements were material was for the court, not the jury. Transposed to the issue at hand ­ the jury determines the factual component of the element, i.e., the locus of the offense, but the court determines the ultimate question of whether that location is within the SMTJ of the United States. The Supreme Court rejected this argument on the basis that it was contrary to a jury's historical role of determining mixed questions of facts and law, that it, of rendering verdicts by applying the law according to the court's instructions to the facts they find from the evidence. Id. at 512-13. Said another way, "the jury's constitutional responsibility is not merely to determine the facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence." Id. at 514. Moreover, the Court dismissed the government's reliance upon the historical treatment of materiality as a matter of law in perjury cases. In addition to concluding that the historical treatment had been inconsistent, the Court stated: "Since that proposition is contrary to the uniform general understanding (and we think the only understanding consistent with principle) that the Fifth and Sixth Amendments require conviction by a jury of all elements of the crime, we must reject those cases that have embraced it." Id. at 519 (emphasis in original). The Court concluded by stating:
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The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged. The trial judge's refusal to allow the jury to pass on the "materiality" of Gaudin's false statements infringed on that right. Id.. at 522-23. In recognition of the Note in O'Malley, et.al. and the Gaudin case, Mr. Sablan's proposed instructions treat the jurisdictional element as a factual question to be submitted to the jury in its entirety. That is, they list SMTJ as an element of the charge and provide the statutory definition of the term as it is defined in 18 U.S.C. § 7. Conclusion regarding SMTJ The approach that best protects William Sablan's Fifth and Sixth Amendment rights is to submit the element to the jury. After the jury determines the locus of the crime, which the government has alleged is the Special Housing Unit at USP Florence, it then applies the legal definition of SMTJ provided by the Court to that fact to determine whether the essential element has been proven beyond a reasonable doubt. If the Court rejects this approach and proceeds according to its draft instructions, it must also at least supplement them to also instruct the jury under Rule 201(g) that it may, but need not, accept the Court's finding of SMTJ. (Attached is a sample pattern instruction on judicial notice.) ***** Draft Instruction on Lesser-Included Offenses
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Another objection raised by Mr. Sablan at the instruction conference related to the language in draft instructions # 21 (second degree murder) and # 22 (voluntary manslaughter) that states: You are instructed that intoxication and having an abnormal mental condition are not relevant to your decision on [second degree/voluntary manslaughter], since they go to the capacity of the Defendant to premeditate. As you were previously instructed, premeditation is not an element of [second degree/ voluntary manslaughter]. (Emphasis added). 2 The Court and the parties agree that the law provides that intoxication and/or mental disease and/or defect may negate the premeditation element of first degree murder. Based upon that law, Mr. Sablan's proposed instructions discusses those terms only in the instruction on first degree murder, specifically linking them to the element of premeditation. The terms do not appear in any other instruction. Mr. Sablan submits that this is the most straightforward and least confusing way to proceed and objects to discussing them again in relation to lesser-included offenses. Moreover, he objects to any language in that renders intoxication and/or mental disease and/or defect irrelevant to lesser-included offenses, to do so is akin to striking evidence that has been presented to the jury. Assuming arguendo that the Court rejects Mr. Sablan's approach, he submits that

The language "abnormal mental condition" is inconsistent with instruction # 17, which uses "mental disease and/or defect. The terminology should be consistent so as not to confuse the jury. 10

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the following language would be a more accurate statement of the law: You are instructed that intoxication and/or mental disease and/or defect may only negate premeditation which is not an element of this offense. ***** Adverse Inference Instruction At the instruction conference, the Court rejected Mr. Sablan's tendered instruction of first degree murder, which included an adverse inference based upon the government's destruction of and/or failure preserve evidence. The Court, however, granted Mr. Sablan the opportunity to tender a less factually narrative adverse inference instruction. Mr. Sablan is attaching his revised proposed instruction to this brief. Dated: March 1, 2007 Respectfully submitted, Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Nathan Chambers Chambers, Dansky & Mulvahill 1601Blake Street, Suite 300 Denver, CO 80202 303-825-2222

By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050

Counsel of William Sablan

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CERTIFICATE OF SERVICE I hereby certify that on March 1, 2007 I electronically filed the foregoing William Sablan's Supplemental Brief on the Draft Instructions for the Guilt/Innocence Phase 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] By: /s/ Susan L. Foreman

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