Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1767

Filed 04/21/2006

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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, RUDY CABRERA SABLAN, Defendants. __________________________________________________________________ William Sablan's Reply To The Government's Response To Wm DP-20 Regarding Prohibiting Use Of Prior Convictions Obtained In the Commonwealth Of The Northern Mariana Islands __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, submits the following in reply to the government's response to William's Motion To Prohibit The Use Of Prior Convictions Obtained In The Local Courts Of The Commonwealth Of The Northern Mariana Islands On The Grounds That The Federal Death Penalty Act Neither Provides For, Nor Contemplates, Their Use And That They Are Insufficiently Reliable [Wm DP-20]. The government's response is document # 1735. 1. William's motion requests that the Court preclude the government from using convictions (and/or information relating to them), which were obtained in the
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courts of the Commonwealth of the Northern Mariana Islands ("CNMI") for violating the criminal code of the CNMI. The motion mainly addresses the prior convictions alleged in support of the government's nonstatutory aggravating factor of future dangerousness. 2. The motion cites cases in which the federal court's have looked to the statutory aggravating factors listed in the Federal Death Penalty Act ("FDPA") as a frame of reference when evaluating the relevancy and reliability of other criminal conduct as it relates to nonstatutory aggravating factors.1 The FDPA's statutory aggravating factors relating to prior criminal conduct are specifically limited to prior convictions for specified federal offenses, § 3592(c)(12) &(13), or to prior convictions for certain types of federal or state offenses, § 3592(c)(2), (3), (4) & (10). Here, however, the government's Notice of Intent to Seek the Death Penalty ("NOI") includes prior convictions that are for neither federal nor state offenses. 3. The government's response begins with a discussion of the statutory aggravating factor set out in § 3592(c)(4). Rudy Sablan was charged with that statutory aggravating factor, not William. 2
See also William's Memorandum Brief In Support Of His Motions To Strike Incidents Listed By The Government In Support Of Its Nonstatutory Aggravating Factor Of Future Dangerousness at 5-8.
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The prior conviction statutory aggravating factor charged against William is § 3592(c)(2). He has challenged that factor in Wm DP-27 and Wm DP-29.
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4. It cites 18 U.S.C. § 5, which defines the term "United States" for purposes of Title 18. That definition, however, serves to describe where title 18 is generally enforceable. It does not describe what constitutes a "federal" or "state" offense/conviction for purposes of the FDPA or any other specific statute. 5. It then points out that Small v. United States, 125 S. Ct. 1752 (2005) and United States v. Concha, 233 F.3d 1249 (10th Cir. 2000) "aris[e] from completely different statutory schemes" (Response at 2).3 Nevertheless, these cases constitute persuasive authority for the concept that domestic, i.e., federal and state convictions are what Congress had intended, not foreign convictions. 6. Additionally, the principle that statutes are to be interpreted according to their plain meaning, see e.g., Amoco Prod. Co. v. Village of Gambell, 490 U.S. 531, 548 (1987), supports William's contention that a CNMI conviction is neither a federal, nor a state conviction. Cf. Northern Mariana Islands v. United States, 279 F.3d 1070, 1072 (9th Cir. 2002) (`[u]nder the plain meaning of "State" as it appears in the Quiet Title Act, the CNMI clearly would not qualify", yet for purposes of that statute it would be treated as if it were) (citing Fleming v. Department of Public Safety, 837 F.2d 401, 406 & n.6 (9th Cir. 1988) (noting that, although the CNMI possesses certain attributes of statehood, it is not a State)).

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This is true and is the reason a "Cf." signal was used in the motion.
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Filed 04/21/2006

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Thus, although the CNMI may not be a "foreign" country (response at 3) in the way Japan and the United Kingdom are (the locales of the convictions at issue in Small and Concha), it is not a state. WHEREFORE, William respectfully requests this Court to prohibit the government from introducing prior CNMI convictions as support of its nonstatutory aggravating factor of future dangerousness. Dated: April 21, 2006 Respectfully submitted, Patrick J. Burke Dean Neuwirth Burke & Neuwirth 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 CERTIFICATE OF SERVICE I hereby certify that on April 21, 2006, I electronically filed the foregoing William Sablan's Reply To The Government's Response To Wm DP-20 Regarding Prohibiting Use Of Prior Convictions Obtained In the Commonwealth Of The Northern Mariana Islands with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the
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Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

Case 1:00-cr-00531-WYD

Document 1767

Filed 04/21/2006

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following e-mail addresses: [email protected] [email protected] [email protected] [email protected] By: s/Susan L. Foreman

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