Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1766

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-19 Regarding Limitation Of The Evidence Of Prior Convictions To The Fact Of Conviction __________________________________________________________________ Defendant William Sablan ("William"), through undersigned courtappointed counsel, submits the following in reply to the government's response to William's Motion To Limit Evidence Of Prior Convictions To The Fact Of Conviction And To Exclude Evidence Of Underlying Conduct [Wm DP-19]. The government's response is contained in Document # 1729. 1. William's motion asserts that for purposes of admitting prior convictions, whether in relation to statutory or nonstatutory aggravating factors, the government should be limited to proof of the convictions and not be allowed to engage in protracted presentations of what the government describes as the "underlying
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facts" of those convictions. William's position is based upon the plain language of the statutory aggravating factor alleged, i.e., "previously been convicted of a Federal or State offense . . ." and the Supreme Court's adoption of a similar "categorical" approach to prior convictions for purposes of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e) in Taylor v. United States, 495 U.S. (1990). See also United States v. Garcia, 42 F.3d 573, 576 (10th Cir 1994) (adopting such an approach in relation to the career offender provisions of the federal sentencing guidelines); United States v. Riley, 183 F.3d 1155 (9th Cir. 1999) (same). 2. In response, the government cites United States v. Higgs, 353 F.3d 281 (4th Cir. 2003) in which the Fourth Circuit rejected a Taylor approach for purposes of the statutory aggravating factor set out in section 3592(c)(2) of the Federal Death Penalty Act, the same statutory aggravating factor alleged against William. Because the Fourth Circuit's ruling is based upon a distinction without a difference, it is not persuasive authority. The Circuit stated that because the language of § 3592(c)(2) "quite plainly requires only that the previous conviction `involv[e] the use or attempted or threatened use of a firearm', it authorizes and likely requires the court to look past the elements of the offense to the offense conduct." Id. at 316 (quoting § 3592(c)(2)). The statutory language at issue in
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Taylor, however, reads similarly. In fact, the ACCA uses the words "involving" or `involves" four times within its definitions of qualifying predicate offenses.1 3. The government additionally argues that limiting the government's proof to the fact of a prior conviction is at odds with various court rulings allowing the admission of evidence of unadjudicated criminal conduct. (Response at 4-5). William discusses the use of unadjudicated conduct in Wm DP-24, but for purposes of this reply he submits that underlying facts have been adjudicated and many were irrelevant to the ultimate resolution of the case, be it by jury verdict or guilty plea. Using the conviction without those irrelevant facts is the most reliable way of assessing William's criminal history because it incorporates the assessments of prosecutor and the judge in cases where plea bargains were entered and of the jury where convictions came after trial. Particularly if the prior conviction was obtained by way of a plea bargain, presentation of additional facts that support other or more serious crimes would deny William the benefit of his bargain. 4. The government's concern that, if it is so limited, the goal of individualized sentencing will be jeopardized is unwarranted. Knowledge of

The categorical approach adopted in Taylor is not limited to the statutory language "is burglary", but applies to all predicate crimes. Shepard v. United States, 125 S. Ct. 1254, 1257 n.2 (2005)
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William's prior convictions, even if limited to the judgment and commitment orders and the elements of the offenses, will give the jury sufficient detail to make a sentencing decision that addresses William as an individual defendant. 5. As has been problematic in relation to Phase III motions, the government's NOI and responses to William's motions shed little light on what the government will present to establish the "underlying facts" of the prior convictions.2 Does it intend to call witnesses to directly testify to the events at issue or does it anticipate using hearsay police and/or presentence reports? There are relevancy and reliability issues in relation to all these alternatives. 3 WHEREFORE, William respectfully requests the Court to limit the government's evidence of prior adjudicated criminal conduct to proof of the fact of conviction. FURTHER, if the Court allows the government to introduce evidence of underlying facts, William reserves the right to challenge the relevancy, reliability,
On April 11, 2006, the Court ordered the government to file a detailed proffer of its evidence in support of future dangerousness by July 24, 2006. The Court indicated that several motions closely linked to this proffer would be heard the week of August 28, 2006. Although this motion was not initially mentioned as one that would be set for the week of August 28th, it makes sense to defer it with the others until the government makes its proffer.
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Specifically in regards to police reports, the Supreme Court, in Shepard v. United States, 125 S. Ct. 1254 (2005), held that police reports cannot be used to determine whether a prior conviction qualifies as a predicate offense under the ACCA.
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and the probative value versus the prejudicial effect of such evidence once it is produced. 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-19 Regarding Limitation Of The Evidence Of Prior Convictions To The Fact Of Conviction 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]
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Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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By: s/Susan L. Foreman

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