Free Response to Motion - 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. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, 2. RUDY CABRERA SABLAN, Defendants.

GOVERNMENT'S RESPONSE TO DEFENDANT WILLIAM SABLAN'S MOTION TO STRIKE CONVICTION UNDER 18 U.S.C. § 924(g)(1) [sic] FROM THE GOVERNMENT'S NOI [Wm DP-29]

The United States of America, by William J. Leone, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, responds as follows to William Sablan's Motion to Strike Conviction Under 18 U.S.C. § 924(g)(1) [sic] from the Government's NOI for the Alleged Statutory Aggravating Factor Set Out in 18 U.S.C. § 3592(c)(2) [Wm DP-29]. A. INTRODUCTION William Sablan asks the Court to strike his § 922(g)(1) conviction from the government's Amended Notice of Intent to Seek the Death Penalty on two grounds: First, he collaterally attacks the § 922(g)(1) conviction because it was based on underlying convictions from the local courts of the Commonwealth of the Northern Mariana Islands

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("CNMI"). See William Sablan's Motion to Strike § 922(g)(1) Conviction [Wm DP-29] at 2-4. He asserts that these local CNMI convictions are "foreign" convictions that Congress did not intend to include within the scope of § 922(g)(1). Second, William Sablan claims that his § 922(g)(1) conviction is not a "Federal or State offense" within the meaning of 18 U.S.C. § 3592(c)(2). Id. at 4-5. B. ANALYSIS 1. CNMI Convictions Are Predicate Convictions For Purposes of 18 U.S.C. § 922(g)(1)

William Sablan relies upon Small v. United States, 544 U.S. 385, 125 S.Ct. 1752 (2005), to support the argument that "convictions obtained in the local courts of the CNMI cannot serve as predicate convictions for purposes of 922(g)." See William Sablan's Motion to Strike § 922(g)(1) Conviction [Wm DP-29] at 4. Small, however, does not support the defendant's argument. The predicate felony conviction at issue in Small was a conviction in a Japanese court, which was clearly a "foreign" conviction as opposed to a "domestic" conviction. The Supreme Court, presuming that Congress intended that the phrase "convicted in any court" to apply "domestically, not extraterritorially," id. at 1755, held that foreign convictions could not be predicate convictions under § 922(g)(1). As explained in the government's response to Wm DP-20, which the government incorporates herein by reference, the CNMI is not a foreign country, but rather under the sovereignty of the United States. As such, it is considered a U.S. possession. Title 18 of 2

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the United States Code defines the term "United States" in a "territorial sense" that "includes all places and waters, continental or insular, subject to the jurisdiction of the United States, except the Canal Zone." 18 U.S.C. § 5. The CNMI is included within this definition. Similarly, the definition section of the chapter in which § 922(g)(1) is located indicates that the term "State" includes "the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone)." 18 U.S.C. § 921(a)(2). Thus, the narrow definition of "state" and the broad definition of "foreign" that William Sablan urges upon the Court has no support within the context of Title 18 or, more specifically, in the language of §§ 921 and 922. 2. CNMI Convictions are "Federal or State" Convictions Under 18 U.S.C. § 3592(c)

William Sablan also argues that his § 922(g)(1) conviction should be stricken from the NOI because the predicate local CNMI convictions on which it was based are not "Federal or State" convictions within the meaning of the 18 U.S.C. § 3592(c)(2) of Federal Death Penalty Act. See William Sablan's Motion to Strike § 922(g)(1) Conviction [Wm DP-29] at 4. That provision of the FDPA reads as follows: (c) Aggravating factors for homicide.­ In determining whether a sentence of death is justified ... the jury ... shall consider each of the following aggravating factors for which notice has been given and determine which, if any, exist: ... (4) Previous conviction of violent felony involving firearm.­ For any offense, other than an offense for which a sentence of death is sought on the basis of section 924(c), 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 of or attempted 3

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or threatened use of a firearm (as defined in section 921) against another person. There are three problems with William Sablan's argument. First, the defendant's 1999 conviction for violating § 922(g)(1) did not occur in a local CNMI court. It occurred in Case No. CR99-00018 in the United States District Court for the District of the Northern Mariana Islands. Therefore, it is a "Federal" conviction within the meaning of 18 U.S.C. § 3592(c)(2) of Federal Death Penalty Act. Second, under the plain language of § 3592(c)(2), the qualifying offense need only be one punishable by more than one year imprisonment and involving the use, attempted use, or threatened use of a firearm. The statute does not require, as William Sablan argues, that such a conviction not be based in part upon a predicate conviction from a possession of the United States such as the CNMI. Moreover, as explained in the government's response to Wm DP-27, the defendant has no ability to attack collaterally one of his federal convictions for leading the 1999 Saipan prison riot. Third, even if William Sablan's convoluted reading of § 3592(c)(2) were true, he does not explain why a conviction from the CNMI is not a "state"conviction within the meaning of the FDPA. In fact, there is no reason to assume that Congress, in passing the FDPA, did not intend for local convictions from the CNMI to be included within the term "State conviction" in § 3592(c)(2) given that, as explained in the government's response to Wm DP-20, the CNMI has attributes of a state, see Commonwealth of the Northern Mariana Islands v. United States, 279 F.3d 1070, 1073 (9 th Cir. 2002) (regarding CNMI 4

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as a "state" for purpose of Quiet Title Act); Fleming v. Dept. of Public Safety, CNMI, 837 F.2d 401, 406 (9 th Cir. 1988) (CNMI has attributes of a state), overruled on other grounds, DeNieva v. Reyes, 966 F.2d 480, 483 (9 th Cir. 1992), and is a possession of the United States. In short, the defendant's argument that his 18 U.S.C. § 922(g)(1) conviction is not a "Federal" conviction within the meaning of § 3592(c)(2) should be rejected. WHEREFORE the United Stated requests that William Sablan's Motion to Strike Conviction Under 18 U.S.C. § 924(g)(1) [sic] from the Government's NOI for the Alleged Statutory Aggravating Factor Set Out in 18 U.S.C. § 3592(c)(2) [Wm DP-29] be denied. Respectfully submitted this 10 th day of April, 2006.

WILLIAM J. LEONE United States Attorney

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17 th 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 17 th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0403 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 10th day of April, 2006, I electronically filed the foregoing GOVERNMENT'S RESPONSE TO DEFENDANT WILLIAM SABLAN'S MOTION TO STRIKE CONVICTION UNDER 18 U.S.C. § 924(g)(1) [sic] FROM THE GOVERNMENT'S NOI [Wm DP-29] 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 Donald R. Knight [email protected] Forrest W. Lewis [email protected]

Dean Steven Neuwirth [email protected]

s/ Donna Summers DONNA SUMMERS Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0406 E-mail address: [email protected]

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