Free Supplement - 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-01 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

GOVERNMENT'S SUPPLEMENTAL BRIEF REGARDING THE APPLICABILITY OF CRAWFORD TO PENALTY PHASE

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 files its supplemental brief regarding the applicability of Crawford v. Washington, 541 U.S. 36 (2004), to the sentencing phase of the above-referenced capital case. INTRODUCTION The Court indicated during hearings held on November 6 through 8, 2006 that it finds the reasoning of United States v. Mills, 446 F.Supp.2d 1115 (C.D. California, August 17, 2006), persuasive on the issue of whether, under the rationale of Crawford,

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the Confrontation Clause applies during the sentencing hearing in a capital case. The Mills court concluded that it does. The government disagrees. ARGUMENT A. Only the factual finding that the defendant is eligible for a sentence of death exposes the defendant to a greater punishment than does the jury's finding of guilt; therefore, once that determination has been made, the Confrontation Clause does not apply. The Court's ruling on this issue in the instant case will directly impact the ability of the government to present important, relevant evidence on the non-statutory aggravator of the future dangerousness of William Sablan. The government seeks to offer statements of Chinese hostages who were terrorized by the defendant in connection with the prison takeover case, CNMI Case No. 99CR00018. Because these witnesses are believed to be in China and beyond the reach of a subpoena, the only method of proof available to the government to show the details of the defendant's behavior is the testimony of law enforcement officers who interviewed the witnesses at the time of the incident. Without the statements of these witnesses, the jury would be denied information any judge would find important in determining what sentence to impose. The Mills decision would deny the jury this evidence and the government urges the Court to reconsider its reliance on the reasoning of Mills. The Mills analysis begins with a quote from Apprendi v. New Jersey, 530 U.S. 466, 494 (2000) that the relevant inquiry is "one not of form, but of effect­does the required 2

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finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" (emphasis in original). Answering the question posed, the government asserts that it is the jury's factual finding that the defendant is eligible for the death penalty which exposes him to a greater punishment. Once that finding has been made, the range of punishment has been determined and the additional findings regarding nonstatutory aggravators, mitigating factors and the weighing of those factors do not expose the defendant to any greater punishment. For example, in Harris v. United States, 536 U.S. 545 (2002)(plurality opinion), the Court concluded that judicial fact-finding was appropriate under Apprendi in firearmrelated cases in making a factual determination of whether the firearm was used in such a way that the defendant was subject to the mandatory minimum sentence. The Court reasoned that since the mandatory minimum sentences did not "expose a defendant to a punishment greater than that otherwise legally prescribed," they could be treated as sentencing factors, subject to judicial fact-finding. Id. at 565. The government has previously cited United States v. Jordan, 357 F. Supp.2d. 889 (E.D.Va. 2005), in support of its argument that the Confrontation Clause does not apply to the selection phase of the death penalty sentencing hearing. The Jordan court looked to Zant v. Stephens, 462 U.S. 862 (1983), to understand the constitutional significance of the finding of aggravating factors in a death penalty case:

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[S]tatutory aggravating factors serve as the eligibility criteria for imposition of a death sentence, while nonstatutory aggravating factors serve as part of the selection process for determining whether the sentence was appropriate for the defendant. [S]tatutory aggravating circumstances play a constitutionally necessary function at the stage of legislative definition: they circumscribe the class of persons eligible for the death penalty. But the Constitution does not require the jury to ignore other possible aggravating factors in the process of selecting, from among that class, those defendants who will actually be sentenced to death. What is important at the selection stage is an individualized determination on the basis of the character of the individual and the circumstances of the crime. Jordan, 357 F.Supp.2d at 897, citing Zant, 462 U.S. at 878 (emphasis added.) The Jordan opinion goes on to point out that: the evidentiary and deliberative process in the penalty phase of a capital case has two facets: eligibility and selection. As the name implies, the eligibility phase determines which class of defendants are statutorily eligible for the death penalty. In the selection phase, the jury determines what particular sentence should be imposed on the individual eligible defendant. From a constitutional perspective, the eligibility phase is the most critical because it is a necessary prerequisite to the jury's consideration of the death penalty. It encompasses the finding of fact that increases the defendant's authorized punishment from life in prison to death. Jordan, 357 F.Supp.2d at 902 (citations omitted; emphasis added). Based on this reasoning, the government respectfully urges the Court to allow the use of hearsay evidence, as contemplated under the FDPA, during the selection phase of any sentencing hearing in this case. B. The Confrontation Clause is not violated by the admission of prior testimony under oath of an unavailable witness when the defendant has had a prior opportunity for cross-examination.

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The U.S. Supreme Court, in Washington v. Crawford, 541 U.S. 36, 53-54 (2004), clearly held that the Confrontation Clause of the Sixth Amendment bars "admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had a prior opportunity for cross-examination." (emphasis added.) Federal Rule of Evidence 804 also 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 direct, cross, or redirect examination." Fed. R. Evid. 804 (b)(1). Regardless of whether the Court follows the rationale of Mills as to when the Confrontation Clause applies during the penalty phase, Federal Rule of Evidence 804 and the holding in the Crawford opinion govern the admissibility of the prior testimony of Mr. Kiyoshi Nemoto, one of the victims in the Lao Lao Golf Course robbery, CNMI Case No. 96-235. Mr. Nemoto testified at the trial of that case and was cross-examined by counsel representing William Sablan in the presence of Mr. Sablan. Both his direct examination, which was offered via transcript and tape recording during the November 6, 2006 hearing in this case, and his cross-examination, which was not offered but which also exists via transcript and tape recording, are available as evidence. The transcript of Mr. Nemoto's

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cross-examination is attached herein as Exhibit 3E-2. The testimony of Robert Steinborn, the prosecutor in case 96-235, is also available to identify the content of the recordings. Theodora SN. Descena, Deputy Clerk of the Office of the Clerk of Court of the Superior Court of the Commonwealth of the Northern Mariana Islands, is available to identify the tapes as true copies of the originals. Consistent with the holding in Crawford, Mr. Nemoto is unavailable for the trial of this matter because he is a citizen and resident of Japan and is therefore beyond the reach of a trial subpoena. See United States v. Drogoul, 1 F.3d 1546, 1552 (11 th Cir. 1993). In addition, the defendant has had a prior opportunity to cross-examine Mr. Nemoto on the very facts which are relevant to the issue of future dangerousness. Therefore, the Confrontation Clause is not violated and the evidence should be allowed during the penalty hearing. CONCLUSION WHEREFORE, for all the reasons stated above, the government respectfully urges the Court to find that the Confrontation Clause applies only to the eligibility portion of the penalty hearing. The government further requests that the Court find that the Confrontation Clause will not be violated by the introduction of the prior testimony of Mr. Nemoto.

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Respectfully submitted this 14th day of November, 2006. TROY A. EID United States Attorney BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17th 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 17th 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 14th day of November, 2006, I electronically filed the foregoing GOVERNMENT'S SUPPLEMENTAL BRIEF REGARDING THE APPLICABILITY OF CRAWFORD TO PENALTY PHASE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected] Attorneys for Rudy Sablan Forrest W. Lewis [email protected] Donald R. Knight [email protected]

s/ Dorothy Burwell DOROTHY BURWELL Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0400 E-mail address Dorothy.Burwell@

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