Free Motion to Exclude - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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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 Limit Evidence Of Prior Convictions To The Fact Of Conviction And To Exclude Evidence Of Underlying Conduct [Wm DP-19] Defendant William Sablan ("William"), through undersigned courtappointed counsel, respectfully requests the Court to limit the government's proof of prior criminal conduct to proof of the fact of conviction. As grounds, counsel state: Statutory Aggravating Factor 1. In this case, the government's Notice of Intent to Seek the Death Penalty ("NOI") alleges the statutory aggravating factor set out in 18 U.S.C. § 3592(c)(2). That provision reads as follows: " . . . the defendant has previously been convicted of a Federal or State offense punishable by a term of imprisonment of more than 1
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year, involving the use or attempted or threatened use of a firearm . . . against another person." (Emphasis added.) 2. In support thereof, the NOI specifies that William pled guilty to three felonies for which he was sentenced to 252 months imprisonment. The felony convictions were for violations of 18 U.S.C. §§ 922(g)(1) (felon in possession of a firearm); 924(h) (transfer of a firearm knowing it would be used to commit a crime of violence); and 1203 (hostage taking). 3. Depending on the statutory elements of the offenses, these convictions arguably fall within § 3592(c)(2). The NOI, however, goes beyond the fact of the convictions and further describes their "underlying facts." The Federal Death Penalty Act ("FDPA") does not contemplate jury consideration of such facts. 4. It is clear from the plain language of the alleged statutory aggravating factor, as well as the other statutory aggravating factors relating to prior adjudicated criminal conduct,1 that it is the fact of the conviction and not the underlying conduct that the jury is to consider. Cf. Taylor v. United States, 495 U.S. 575, 599 (1990) (the language of the Armed Career Criminal Act, 18 U.S.C. 924(e)(1), referring to "a person who . . . has three previous convictions", supports the inference that Congress intended the sentencing court to look only to the fact

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See subparagraphs (2)(3)(4)(10)(12) & (15) of § 3592(c).
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that the defendant had been convicted of crimes falling within certain categories, and not the facts underlying the prior convictions"); United States v. Riley, 183 F.3d 1155, 1158 (9th Cir. 1999) (in analyzing whether prior convictions count toward "career offender" under the federal sentencing guidelines, a categorical approach is used and actual underlying conduct is not examined), cert. denied, 528 U.S. 1174 (2000). 5. Moreover, when the conviction is the result of a plea bargain, the subsequent introduction of evidence of underlying conduct to enhance a sentence is unfair because it denies a defendant of the benefit of his bargain. Cf. Taylor, 495 at 601 ("if a guilty plea to a lesser . . . offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to [the greater offense]"). 6. Surely, if the government is limited to introducing only the fact of conviction for purposes of enhancing a sentence of imprisonment, it similarly should be limited for purposes of a death sentence. 7. The Eighth Amendment requires heightened standards of reliability in a capital sentencing process. (See Wm Memorandum Brief at 7-8). The most efficient, reliable and least inflammatory way for the jury to assess the adjudication of a defendant's prior criminal conduct is by having the government present a
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properly redacted charging document, the judgment and commitment order, and the statutory definition of the offense of conviction. By comparison, "the practical difficulties and potential unfairness of a factual approach are daunting." Taylor, 495 U.S. at 601. Thus where the defendant's prior criminal conduct has been adjudicated in a court of law, the government should be limited to introducing the documents noted above and otherwise be precluded from presenting evidence of underlying conduct. Nonstatutory Aggravating Factor 8. As noted in other pleadings, the federal courts have looked to the statutory aggravating factors as a frame of reference for purposes of evaluating nonstatutory aggravating factors and their supportive information. (See Wm Memorandum Brief at 6). Thus, to the extent the government intends to introduce prior adjudicated criminal conduct in support of its nonstatutory factor of future dangerousness, it similarly should be limited to proving the fact of the conviction. 9. In this case, the government has included prior adjudicated criminal conduct in support of its allegation of future dangerousness. The NOI first lists "Non-Institutional Setting" "criminal cases":

! Paragraph (a) alleges that William pled guilty to misdemeanor
assault for which he was sentenced to imprisonment for one year. The NOI,
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however, further alleges that William "burglarized the residence of Victor C. Pangelinan and assaulted him with a knife." The government should be limited to the fact of the misdemeanor assault conviction, provided of course the Court finds that evidence of this conviction is sufficiently relevant, reliable, and that its probative value is not outweighed by unfair prejudice.

! Paragraph (b) alleges that William pled guilty to burglary for which
he was sentenced to imprisonment for five years. The NOI, however, further alleges that William "robbed, tied up, and assaulted the storekeeper." Again, the government should be limited to the fact of the burglary conviction, provided the Court finds that evidence of this conviction is sufficiently relevant, reliable, and that its probative value is not outweighed by unfair prejudice.

! Paragraph (e) alleges that William pled guilty to misdemeanor
assault, yet the NOI further alleges that he was originally charged with aggravated assault, a felony. Again, provided the Court finds the evidence of this conviction sufficiently relevant, reliable and that its probative value is outweighed by unfair prejudice, the government should only be allowed to establish the fact of the misdemeanor conviction.

! Paragraph (f) alleges that William was convicted of robbery. The
NOI, however, goes on to allege that after William's arrest, he "escaped." Again,
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the government should be limited to the fact of conviction, provided the Court finds the evidence of that conviction to be sufficiently relevant, reliable, and that its probative value is not outweighed by unfair prejudice. 10. The government's NOI then lists "Institutional Setting" "incidents." Only paragraph (b) relates to prior adjudicated criminal conduct. It alleges that William pled guilty to misdemeanor assault. The government should be limited to establishing the fact of the conviction. 11. By attempting to introduce evidence of the underlying conduct of the prior convictions rather than restricting itself to the fact of the convictions as the FDPA and fundamental fairness dictate, the government is attempting to inflame the passion of the jury and skew the weighing process by placing a thumb on death's side of the scale. WHEREFORE, William respectfully requests this Court to limit the government's evidence of prior adjudicated criminal conduct to proof of the fact of conviction, that is, to limit their evidence to the introduction of an appropriately redacted charging document, the judgment and commitment order, and the statutory definition of the offense of conviction. Dated: February 13, 2006 Respectfully submitted,
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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 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan

Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Sreet, Suite 300 Denver, CO 80202 303-825-2222

CERTIFICATE OF SERVICE I hereby certify that on February 13, 2006, I electronically filed the foregoing Motion To Limit Evidence of Prior Convictions To The Fact Of Conviction And To Exclude Evidence Of Underlying Conduct [Wm DP-] 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

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