Free Supplement - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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Filed 11/14/2006

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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 CONCEPCION SABLAN, Defendant.
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William Sablan's Supplement Regarding Cases Cited By The Court During The November 6-9, 2006 Phase III Hearing _______________________________________________________________________ As invited by the Court, Defendant William Sablan ("William"), through undersigned court-appointed counsel, submits the following comments on the cases noted by the Court during the November 6-9, 2006 hearing relating to penalty-phase evidence. 1. United States v. Mills, 446 F. Supp.2d 1115 (C.D. Cal. 2006). (a) This case supports William's argument that Crawford v. Washington, 541 U.S. 36 (2004) ­ holding that the Confrontation Clause forbids the introduction of out-of-court testimonial statements unless the witnesses are unavailable for trial and the defendant had a prior opportunity to cross-examine them ­ applies throughout the sentencing hearing. (Documents ## 1882; 1903 at 5-12; 1974 at 9-11). (b) Relatedly, it also supports William's argument that Williams v. New

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York, 337 U.S. 241 (1949), is no longer viable in view of subsequent death-penalty jurisprudence recognizing that "death is different." Id. at 1122-24; 1128-29. (Document # 1903 at 11-12). (c) The Mills court specifically disagreed with United States v. Jordan, 357 F. Supp. 2d 889 (E.D. Va. 2005), and noted that it followed United States v. Higgs, 353 F.3d 281 (4th Cir. 2003), which was decided prior to Crawford. Mills, 446 F. Supp. 2d at 1129. Jordan is the government's leading case for its request to bifurcate the sentencing hearing and apply Crawford only to the eligibility portion. (Document # 1884 at 4).

2. United States v. Mayhew, 380 F. Supp.2d 936 (S.D. Ohio 2005).
(a) This case supports William's arguments that in establishing previous convictions, at least those used as a statutory aggravating factor to establish eligibility, the government should be limited to the fact of conviction. (Documents ## 1686; 1766; 1974 at 6-9; 1991 at 1-7). The Mayhew court stated that: To prove the statutory aggravator beyond a reasonable doubt, the prosecution must merely demonstrate that "the defendant has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted use of a firearm . . . against another person." 18 U.S.C. § 3592(c)(2). The evidence submitted thereunder will be extremely limited because the very fact of the conviction is all that is required to prove that statutory aggravator. Id. at 954. (b) The Mayhew court held that it was not duplicative to charge a prior conviction as a

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statutory aggravating factor and to include it as support of future dangerousness, because "the conviction's similarity and its temporal proximity of the instant alleged crime, not the fact of the conviction itself, will be used to prove `Future Dangerousness.'" Id. at 954 (emphasis in original). This holding does not undermine William's "double-counting" motion, however, because his motion is much narrower in focus. (Document # 1883). The prior-conviction statutory aggravating factor charged against William includes a conviction for felon with a gun. The predicate offenses for this federal offense include CNMI Case No. 96-235 (the golf-course robbery) and CNMI Case No. 96-258 (an escape, which was noted in the NOI, but is not included in the amended proffer). William argues that if the Court strikes the robbery and escape convictions on any one of the grounds advanced by William, the government should not be allowed to use the statutory aggravating factor as a vehicle to nevertheless get these convictions or the conduct underlying them before the jury. (c) The Mayhew court bifurcated the sentencing hearing into eligibility and selection phases not for Crawford purposes, but on the basis that the evidence supporting the nonstatutory aggravating factor of victim impact had no probative value with regard to the jury's determination of a requisite mens rea or the statutory aggravating factors, but carried with it a substantial risk of prejudicing those determinations. Id. at 957. In the instant case, the government has not alleged or proffered victim impact evidence. Thus, Mayhew offers no support for the government's request for bifurcation. Dated: November 14, 2006

Respectfully submitted,
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Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan

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

CERTIFICATE OF SERVICE I hereby certify that on November 14, 2006, I electronically filed the foregoing William Sablan's Supplement Regarding Cases Cited By The Court During The November 6-9, 2006 Phase III Hearing 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] [email protected] [email protected] By: /s/Susan L. Foreman

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