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 Action No. 1:00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant.
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William Sablan's Second Memorandum Brief Regarding The Phase III Hearing Scheduled For November 6-9, 2006 _______________________________________________________________________ Defendant William Sablan ("William"), through undersigned court-appointed counsel, filed an initial Memorandum Brief relating to the November hearing on November 1, 2006. Since then several pleadings have been filed. On Thursday, November 2, 2006 the Court issued an Order denying William's August 10, 2006 Motion for Reconsideration. (Documents 1986; 1863). At 3:13 p.m. on Friday, November 3, 2006, the government provided the defense with a copy of its witness list.1 Given these new events, William submits this additional pleading, and respectfully requests that the

The late production of this list and its expert's fingerprint analysis (also provided to the defense on November 3, 2006), as well as the October 24th delivery of the audiotapes of CNMI case 85-49, is contrary to the Court's September 25, 2006 Order which stated that "[t]he evidence that the parties believe will be of assistance to the Court shall be submitted by Friday, October 6, 2006." (Document 1925). 1

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Court take it into consideration for purposes of the November 6-9, 2006 hearing relating to penalty-phase evidence. As grounds, counsel state: 1. On November 2, 2006, this Court denied William's Motion for Reconsideration. The motion addressed a portion of the Court's July 6, 2006 Order on Phase III motions. (Documents 1986; 1863). One of the bases for denial was that "all of [William's] arguments could and should have been raised in connection with the underlying motion." (Document 1986 at 3). In support, the Order cited the following two cases, both of which are inapposite. a) Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000), involved an action for a declaratory judgment and breach of contract against defendant insurer. The district court granted a declaratory judgment. The defendant then filed a Fed. R. Civ. P. 60(b) motion for relief from judgment. The motion was denied. The defendant then filed a motion to reconsideration and a second Rule 60(b) motion. 2 b) National Business Brokers, Ltd. v. Jim Williamson Productions, Inc., 115 F. Supp.2d 1250 (D. Colo. 2000), involved an action for breach of a listing agreement regarding the sale of a video business. The district court dismissed the action for lack of personal jurisdiction over the defendant. After the dismissal, plaintiff filed a motion for

The actual language of the portion quoted by the Court was not limited to a motion for reconsideration. What the Circuit said was" "we note that a motion for reconsideration and a successive Rule 60(b) motion, as brought by [the defendant] in this case, are inappropriate vehicles", etc. Id. at 1012 (emphasis added). 2

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reconsideration. 3 2. The instant case is not about money; it is about life or death. Unlike the cases cited above, William's Motion for Reconsideration did not seek relief from a final judgment. Instead, it was a pretrial ­ indeed a pre-Phase III hearing ­ motion relating to the government's proffered penalty-phase evidence. In such circumstances, it is inappropriate to adopt a "procedural-default" type of analysis, particularly because, as the Supreme Court has repeatedly said, "death is different". See e.g., Woodson v. North Carolina, 428 U.S. 280, 305 (1976); Gardner v. Florida, 430 U.S. 349, 357-58 (1977); Ford v. Wainwright, 477 U.S. 399, 411 (1986). 4 "[T]he qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determination." Caldwell v. Mississippi, 472 U.S. 320, 329 (1985). The implication is clear; on occasion, it may be necessary to reconsider issues in this case to ensure heightened reliability. 3. William's initial "Motion To Limit Evidence Of Prior Convictions To The Fact Of Conviction And To Exclude Evidence Of Underlying Conduct [Wm DP-19]" was filed on February 13, 2006. (Document 1686). His April 21, 2006 reply noted: "As has been problematic in relation to Phase III motions, the government's NOI and responses to

The following language from National Business Brokers was omitted from the Court's Order: "Prior to entry of final judgment, district courts have the inherent power to alter or amend interlocutory orders . . .." National Business Brokers, 115 F. Supp. 2d at 1255.
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This Court has acknowledged that death is different. (Document 1836 at 43). 3

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William's motions shed little light on what the government will present to establish the `underlying facts' of prior convictions." (Document 1766 at 4). On July 6, 2006, the Court issued an order rejecting a categorical approach to the use of prior convictions, but denied defendant's motion "without prejudice as to the evidentiary issues . . ." (Document 1836 at 25). 4. The government's initial proffer was filed on July 24, 2006; its amended proffer was filed on August 26, 2006. (Documents 1843; 1884). Thus, William's motion and the Court's order preceded the government's proffers, and were filed without knowledge of the evidence the government would try to introduce. 5. After seeing the extent of the government's proffered evidence, counsel believed it was important to further discuss the extent to which the government can present evidence relating to prior convictions. For example, in relation to CNMI Case No. 96-123 the government has proffered partial transcripts of the trial testimony of three selected witnesses, two of whom are Saipan police officers, an additional 13 exhibits, and the testimony of three more Saipan police officers, who did not testify at the trial. And this case does not even relate to a statutory aggravating factor, as did the prior convictions at issue in United States v. Higgs, 353 F.3d 281 (4th Cir. 2004) and United States v. Rodriguez, 2006 WL 487117 (D.N.D. Feb. 28, 2006). Moreover, in Higgs, the government did not bring in witnesses to revisit the underlying conduct of the prior conviction; it merely presented a transcript of the plea colloquy, which included the defendant's statement he had possessed a gun, a requirement of the statutory aggravator
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alleged. (This aspect of Higgs was not addressed in either of the Court's orders.) 6. Here, the government has not only failed to limit itself to the plea colloquy related to its statutory aggravator ­ despite its availability ­ but it seeks to present witness testimony relating to all prior criminal episodes, even if it goes beyond the offense of conviction, for purposes of its nonstatutory aggravating factor, future dangerousness. 7. William's motion requested the Court to reconsider its adoption of the government's position that the Supreme Court's mandate for "particularized sentencing" empowered and/or required the government to make an open-ended presentation of evidence underlying prior convictions. William presented a historical review of Supreme Court law relating to the concept of particularized sentencing that demonstrates it is rooted in the defendant's constitutional right to present mitigation. Such Supreme Court caselaw certainly qualifies as "law of a strongly convincing nature" for purposes of a motion for reconsideration. National Business Brokers, 115 F. Supp. 2d at 1256. 8. In apparent recognition of the validity of the Motion to Reconsider, the government's response abandoned its previous argument. Whereas it once claimed that particularized sentencing authorized or required its presentation of underlying conduct, its response instead merely stated that "the fact that a defendant has the right to introduce mitigating evidence does not act as a corresponding limitation on the government's ability to introduce aggravation evidence." (Document 1908 at 4). The Court's Order denying reconsideration similarly stated that particularized sentencing "does not any [sic] way limit the Government's ability to present aggravating evidence." (Document 1996 at 3).
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William has no quarrel with those statements. The goal of the Motion for Reconsideration, however, was to point out that the requirement of particularized sentencing does not constitute authority for granting the government carte blanche to present aggravating evidence. 5 9. As noted in the federal death penalty case of United States v. Davis, 912 F. Supp. 938, 944 n. 9 (E.D. La. 1996), "even though virtually no limitation can be placed on proffered mitigation evidence, limitations can and should be placed on proffered aggravation evidence to assure the death sentence is not arbitrarily imposed." 10. The Court's November 2, 2006 Order also stated that "[d]efendant has not shown that the Court erred in holding that the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990) is inapplicable in the context of the FDPA. In other words, Defendant has not shown through the citation of any legislative history that Congress intended that approach to apply in connection with the FDPA." (Document 1986 at 4). As a matter of statutory construction, however, courts are to first look to the plain language of the statute. If it is clear, the analysis ends. United States v. Jackson, 248 F.3d 1028, 1038 (10th Cir. 2001). It is only when the plain language does not

The government's citations of Payne v. Tennessee, 501 U.S. 808 (1991), Barclay v. Florida, 463 U.S. 939 (1983), and Jones v. United States, 527 U.S. 373 (1999) do not undermine this concept. These cases relate to government's ability to present victim impact evidence relating to the underlying murder charge. Thus, they would allow the government to present evidence of the harm suffered by Joey Estrella's loved ones as a result of his death. What the government is hoping to do here, however, has nothing to do with the harm resulting from the underlying murder charge; it has to do with conduct underlying prior unrelated convictions. There is no victim impact caselaw that supports that approach. 6

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unambiguously reveal its meaning, that courts move on to consider legislative history. Blum v. Stenson, 465 U.S. 886, 896 (1984). 6 Where Congress has used terms that have an acquired meaning, courts must infer, unless the statute otherwise dictates, that Congress meant to incorporate the established meaning of those terms. United States v. Bonnet, 877 F. 2d 1450, 1456 (10th Cir. 1989). Taylor was decided in 1990, and holds that the language of the Armed Career Criminal Act ­ "a person who . . . has three previous convictions" ­ "supports the inference that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not the facts underlying the prior convictions." Id. at 599. The FDPA was enacted in 1994. Like the ACCA, it uses the term "previous conviction[]". Thus, it is to be inferred that Congress adopted the analysis of Taylor, and examining legislative history is unnecessary. 11. The government's witness list includes the names of six federal investigators, and a Saipan Assistant Attorney General. The usefulness of the agents' testimony is doubtful. In its July 6, 2006 Order, the Court denied most of William's Phase III motions, but only to the extent they sought per se rulings on a variety of issues. The Court repeatedly stated that it would not rule on the admissibility of the specific incidents listed in the NOI until the Phase III hearing, when it could determine whether each is

If such history is unhelpful and/or unavailable, courts are to apply the rule of lenity and interpret the statute to the benefit of the defendant. Ladner v. United States, 358 U.S. 169, 177 (1958). 7

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sufficiently relevant and reliable, and should not be excluded under 18 U.S.C. § 3593(c). (Document 1836 at 10; 15; 17; 25; 30-31; 36; 47-51). Five of the agents listed conducted interviews in Saipan of witnesses and/or victims of prior CNMI convictions. One of the agents listed interviewed BOP employees regarding institutional incidents.7 The agents' testimony relating these hearsay statements will add little, if anything, beyond the written proffers for purposes of determining the relevancy of the incidents. Moreover, the agents' testimony can offer nothing to assist the Court in its reliability determinations. WHEREFORE, William respectfully requests that when ruling on the admissibility of the specific incidents listed in the NOI in support of future dangerousness, some of which are prior convictions, the Court consider the discussion presented by this response.

Dated: November 5, 2006

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

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Some of his 302's were not provided to the defense until November 3, 2006. 8

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Denver, CO 80202 303-825-3050 Counsel for William Sablan

CERTIFICATE OF SERVICE I hereby certify that on November 5, 2006, I electronically filed the foregoing William Sablan's Second Memorandum Brief Regarding The Phase III Hearing Scheduled For November 6-9, 2006 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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