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 Case No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. 2. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants.

GOVERNMENT'S RESPONSE TO DEFENDANT WILLIAM SABLAN'S MOTION TO STRIKE CONVICTION UNDER 18 U.S.C. § 924(h) FROM THE GOVERNMENT'S NOI [Wm DP-27]

The United States of America, by William J. Leone, United States Attorney for the District of Colorado, and through Brenda K. Taylor and Philip A. Brimmer, Assistant United States Attorneys, responds as follows to defendant William Sablan's Motion to Strike Conviction Under 18 U.S.C. § 924(h) from the Government's NOI as a Basis for the Alleged Statutory Aggravating Factor Set Out in 18 U.S.C. § 3592(c)(2) [Wm - DP27] as follows: INTRODUCTION On April 13, 1999, in the United States District Court for the District of the Northern Mariana Islands, Case No. 99-00018, defendant William Sablan pled guilty to, and was convicted of, three felonies: hostage taking, in violation of 18 U.S.C. §§ 1203

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and 2; being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and transferring a firearm knowing that it would be used to commit a crime of violence, i.e. assault with a dangerous weapon, in violation of 18 U.S.C. § 924(h). In this case, the government classified all three convictions as a previous conviction of a violent felony involving a firearm under 18 U.S.C. § 3592(c)(2) and listed them in its Amended Notice of Intent to Seek the Death Penalty ("NOI"). The defendant has moved to strike his conviction under 18 U.S.C. § 924(h) in order to prevent its use as a statutory aggravating factor. As grounds for his motion, the defendant contends that his § 924(h) conviction wrongly specified a non-federal offense as a predicate for the required "crime of violence." In support of this contention, the defendant relies on United States v. McLemore, 28 F.3d 1160, 1163-64 (11 th Cir. 1994), which held that, because it is unclear whether the phrase "crime of violence" in the statute included state crimes of violence, the rule of lenity requires that the crime of violence be limited to only federal offenses. McLemore, however, involved a direct appeal. In this case, the defendant did not challenge the validity of his § 924(h) conviction by appeal or by collateral attack, and the time to do so has long passed. Under principles of finality, therefore, the defendant's conviction is valid. Even if the defendant were successful in striking the § 924(h) conviction, however, the underlying facts of his conviction for the crime of hostage taking establish that it was a violent offense involving a firearm.

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A. The Defendant Cannot Attack the Validity of His § 924(h) Conviction. The Supreme Court has consistently held that, once a prior conviction is no longer open to direct or collateral attack, the conviction is presumptively valid. Daniels v. United States, 532 U.S. 374, 382 (2001), citing Custis v. United States, 511 U.S. 485, 497 (1994); Lackawanna County District Attorney v. Coss, 532 U.S. 394 , 403 (2001). One of the most compelling purposes for this rule is to insure the finality of judgments. Lackawanna, 532 U.S. at 402. See also United States v. Garcia, 42 F.3d 573, 583 (10 th Cir. 1994) ("[A]llowing a defendant to collaterally attack predicate convictions would delay proceedings and erode confidence in judicial institutions.") While this rule has typically been applied in the context of habeas corpus petitions, career offender provisions and illegal reentry cases, see, e.g., United States v. Delacruz-Soto, 414 F.3d 1158, 1164 (10 th Cir. 2005) (18 U.S.C. §1326); Aldan v. Gallegos, 2006 WL 560206 (D. Kan. 2006) (denial of habeas petitioner involving defendant's challenge to his 18 U.S.C. §924(h) conviction arising from 1999 prison uprising in District of Northern Mariana Islands)1 , several courts have also applied this rule to challenges against prior convictions used as statutory aggravating factors in federal death penalty cases. See, e.g., United States v. Chong, 98 F. Supp. 2d 1110, 1121 (D. Hawaii 1999) ("The Court will not permit either party to relitigate the merits underlying the [prior] convictions because of concerns of waste of time, cumulative evidence, and confusion of issues."); United States v. Rodriguez, F. Supp. 2d , 2006 WL 487117 at *3 (D.N.D. Feb. 28, 2006) (same).

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Vicente Aldan was one of William Sablan's co-defendants in the 1999 Saipan prison 3

riot.

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Protecting the finality of judgments is equally important in the context of death penalty proceedings. An established exception to the general rule prohibiting collateral attacks of prior convictions is the complete denial of counsel. Lyons v. Lee, 203 F. Supp. 2d 512, 525 (D. N.C. 2002), citing Lackawanna, 532 U.S. at 404-05. A further, though rare, exception may arise if a defendant can show that his ability to obtain direct or collateral review of his underlying conviction was impeded or if he can show compelling evidence of actual innocence. Id. Defendant has failed to show, or even allege, that he is entitled to any of these exceptions. His claim that his § 924(h) conviction should be stricken from the NOI should be denied. B. Defendant's Hostage Taking Conviction Constitutes a Violent Offense Involving a Firearm. Section 18 U.S.C. § 3592(c)(2) provides, as a statutory aggravating factor, that the defendant was "previously convicted of a Federal or State offense punishable by a term of imprisonment of more than 1 year, involving the use or attempted or threatened use of a firearm (as defined in section 921) against another person." In United States v. Higgs, 353 F.3d 281, 316 (4 th Cir. 2003), the Fourth Circuit held that § 3592(c)(2) plainly authorizes the court to look past the elements of the offense to the offense conduct. Id. at 316. In so holding, the Fourth Circuit rejected the defendant's argument that under Taylor v. United States, 495 U.S. 575, 588-89 (1990), the court may only look to the fact of conviction and the statutory definition of the crime of conviction to determine whether a firearm was involved. Id. The Fourth Circuit noted that the Supreme Court has 4

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repeatedly emphasized that an individualized determination is required in the death penalty context. Id. at 317, citing Zant v. Stephens, 462 U.S. 862, 877-79 (1983). Because the Federal Death Penalty Act is a weighing statute, "the jury must be aware of the circumstances underlying the prior convictions in order for it to properly weigh the information in aggravation and mitigation." Chong, 98 F. Supp.2d at 1120. Here, the underlying facts of the defendant's hostage taking conviction establish that the conviction constituted a violent offense involving a firearm. On March 9, 1999, the defendant and other inmates took over the Central Male Detention Facility of the Department of Public Safety, in Saipan. During that time, the defendant took some Chinese inmates hostage and threatened them with injury and death. He obtained a 9 millimeter handgun belonging to one of the prison guards, and pointed the gun at the Chinese hostages, and shot the gun near them, and threatened to shoot them. At various times, he gave this handgun to Vicente Aldan, who used the gun to threaten the hostages. Defendant also told prison negotiators that he would shoot and kill the Chinese hostages if his demands were not met. Although the use of a firearm is not a specific element of a hostage taking offense, defendant's hostage taking conviction in this case clearly involved the use or threatened use of a firearm against another person as required by 18 U.S.C. § 3592(c)(2). In Higgs, the defendant's prior convictions for assault and reckless endangerment also did not have as specific elements of proof the use of a firearm. Higgs, 353 F.3d at 316. In addition, the defendant did not specifically admit the use of a firearm during the incidents. The

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court nevertheless found that the prior convictions involved the use of a firearm based on evidence admitted during the defendant's sentencing hearing that the defendant had fired a handgun during the incidents. Id. The same result is applicable in this case. CONCLUSION Based on the foregoing facts and law, the government requests that defendant William Sablan's Motion to Strike Conviction Under 18 U.S.C. § 924(h) from the Government's NOI as a Basis for the Alleged Statutory Aggravating Factor Set Out in 18 U.S.C. § 3592(c)(2) [Wm - DP27] 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(h) FROM THE GOVERNMENT'S NOI [Wm DP-27] 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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