Free Motion to Exclude - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1687

Filed 02/13/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 00-CR-0531-D UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN RUDY CABRERA SABLAN, Defendants. __________________________________________________________________ William Sablan'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] __________________________________________________________________ Defendant William Sablan ("William"), through undersigned court-appointed counsel, respectfully requests this Court to preclude the government from using convictions (and/or information relating to them), which were obtained in the Commonwealth Trial Court of the Northern Mariana Islands and/or the Commonwealth Superior Court of the Northern Mariana Islands. As grounds, counsel state: 1. As noted in William's memorandum brief and other Phase III motions,
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when evaluating the relevancy and reliability of other criminal conduct relating to a nonstatutory factor, the federal courts have looked to the statutory aggravating factors listed in the Federal Death Penalty Act ("FDPA") as a frame of reference. 2. The FDPA's statutory aggravating factors that relate to prior criminal conduct are specifically limited to prior convictions for specified federal offenses, § 3592 (c)(1), (12) & (13), or to prior convictions for certain types of federal or state offenses, § 3592(c), (2), (3), (4) & (10). Presumably, Congress considered such convictions not only relevant because of the nature of the offense, but also reliable because the convictions were obtained in courts within our federal or state systems.

3. In this case, the government's Notice of Intent to Seek the Death Penalty ("NOI") includes prior convictions in support of its future dangerousness nonstatutory aggravating factor.1 None of these convictions were for federal or state offenses of any kind.2 Instead, they are convictions for violations of Title 6 of the Northern Mariana Islands Commonwealth Code and were obtained in local
Under the heading "Non-Institutional Setting", paragraphs (a), (b), (c), (e) and (f) discuss prior convictions. Under the heading "Institutional Setting", paragraph (b) alleges a prior conviction.
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This motion does not address the statutory aggravating factor alleged in Part B, paragraph 1 of the NOI, which relates to convictions obtained in the "District Court for the Northern Mariana Islands" established by the United States with jurisdiction over violations of federal law. See Covenant Sections 401 & 402.
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courts of the Northern Mariana Islands ("NMI"). 4. As this Court knows, the United States does have a political relationship with the Commonwealth of the Northern Mariana Islands ("CMNI") as established by a Covenant between the two entities. 48 U.S.C. § 1801. The Covenant, however, envisions the CNMI as "a self-governing commonwealth." Section 101. It provides that "[t]he people of the [NMI] will have the right of local selfgovernment and will govern themselves with respect to internal affairs in accordance with a Constitution of their own adoption." Section 103. "The judicial power of the [NMI] will be vested in such courts as the Constitution or laws of the [NMI] may provide. The Constitution or laws of the [NMI] may vest in such courts jurisdiction over all causes in the [NMI] over which any court established by the Constitution or laws of the United States does not have exclusive jurisdiction." Section 202(d). 5. According to Article IV of the subsequently adopted CNMI Constitution, "[t]he judicial power of the Commonwealth shall be vested in a judiciary of the [NMI] which shall include one supreme court and one superior court and such other inferior courts as may be established by law." Thereafter, the Northern Mariana Islands Commonwealth Code reestablished the Commonwealth Trial Court, renamed it the Superior Court of the CNMI, and granted the superior court original
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jurisdiction over all criminal actions. Title I, Division 3, Article 1 §§ 3201 & 3202. 6. Based upon the Covenant, the CNMI Constitution and Code, and the specific language of the FDPA, it is reasonable to infer that Congress did not intend jury consideration of prior convictions other than those obtained in federal and state courts. Cf. Small v. United States, 125 S.Ct. 1752 (2005) (interpreting the phrase "convicted in any court" in 18 U.S.C. § 922(g), as encompassing only domestic, not foreign, convictions); United States v. Concha, 233 F.3d 1249 (10th Cir. 2000) (vacating defendant's enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e), where three of the four prior felony convictions took place in the United Kingdom, on the basis that foreign convictions may not be used as predicate offenses). 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: February 13, 2006

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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 February 13, 2006, I electronically filed the foregoing 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] 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 Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

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