Free Order on Motion to Strike - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Criminal Case No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN and 2. RUDY CABRERA SABLAN Defendants. _____________________________________________________________________ ORDER _____________________________________________________________________ I. INTRODUCTION THIS MATTER comes before the Court on the Phase III motions filed by Defendants William Sablan and Rudy Sablan. These motions address evidentiary challenges to the Federal Death Penalty Act [hereinafter " FDPA" A hearing was held ]. on these motions on Wednesday, May 17, 2006. This Order addresses the Court' s rulings on the Phase III motions, and incorporates by reference rulings made at the hearing. II. ANALYSIS A. William Sablan' Motion To Strike The Nonstatutory Aggravating Factor s Of Future Dangerousness On The Grounds Congress Did Not Intend It To Be Considered In Aggravation [Wm-DP 21] (docket #1688)

This motion seeks to strike the Government' nonstatutory aggravating factor of s future dangerousness from the Notice of Intent to Seek the Death Penalty [hereinafter

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" NOI" on the basis that Congress did not intend it to be considered in aggravation. ] More specifically, Defendant William Sablan asserts that many state death-penalty sentencing schemes allow evidence that a defendant might be a danger in the future to be admitted in aggravation, and that Congress is presumed to know the state of the law when it enacts new legislation. The FDPA specified sixteen (16) aggravating factors for jury consideration in murder cases, which relate either to the circumstances of the murder or to the defendant' prior convictions for very serious or repetitive offenses. s Defendant contends that since Congress did not include future dangerousness as an aggravating factor, it can reasonably be inferred that Congress did not intend its use under the FDPA. This motion is denied. This is, to some extent, a rehash of arguments made in prior Phase II motions (addressing legal challenges to the death penalty) and rejected by me in a previous Order. See United States v. Sablan, No. 00-CR-00531-WYD (D. Colo. April 18, 2006) (order denying Phase II motions at 41-46). In that Order, I rejected the argument that future dangerousness was not permissible for the jury to consider under the FDPA. Id. I also rejected the argument that allowing the jury to consider future dangerousness is contrary to congressional intent, and the statutory construction argument made by Defendant in connection with same. Id. To the extent Defendant makes new arguments in support of this motion, I reject them. As stated previously, Defendant argues that because Congress knew of future dangerousness as a statutory aggravating factor pursuant to state schemes and did not include it as a statutory aggravating factor in the FDPA, it did not intend for this to be -2-

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an aggravating factor. While this argument may have been plausible if Congress listed only statutory aggravating factors and did not provide for consideration of nonstatutory aggravating factors, that is not the case. Congress specifically authorized the use of other aggravating factors in addition to the statutory aggravating factors, stating that the Government may use " other aggravating factor for which notice has been any given." 18 U.S.C. § 3592(c). Thus, the plain language of the statute shows that Congress did not mean the aggravating factors to be limited to the statutory factors. Further, I believe that if Congress had meant for future dangerousness to be excluded, it would have limited the language of § 3592(c) to so state. A number of courts have rejected the argument made by Defendant (or similar arguments), holding that the FDPA permits consideration of the future dangerousness aggravating factor. See United States v. Glover, 43 F. Supp. 2d 1217, 1227 (D. Kan. 1999) (rejecting argument that "because Congress chose not to include such a ` ` future dangerousness' provision within the enumerated statutory aggravating factors, Congress intended that this general factor not be considered as a separate nonstatutory aggravating factor' since " " Congress explicitly provided in the statute that, in addition to the statutorily-enumerated aggravating factors, ` jury...may consider the whether any other aggravating factor...exists') (emphasis in original) (quotation " omitted); United States v. Frank, 8 F. Supp. 2d 253, 279 (S.D.N.Y. 1998) (rejecting argument that Congress did not intend the aggravating factor that the defendant represents a continuing danger to be considered separately finding it " unpersuasive as a matter of statutory construction....[i]f Congress had meant the statutory aggravating -3-

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factors to provide an exhaustive list of factors that could be submitted with respect to the defendant' past criminal behavior and future propensities, it would have said so, s and nowhere in the statutory language is such an exclusion even implied" see also ); United States v. Allen, 247 F.3d 741, 788-89 (8th Cir. 2001) (" given the broad language of the FDPA as to the allowance of nonstatutory aggravating factors, there is no reason under the FDPA why future dangerousness cannot be presented to the jury" vacated ), on other grounds, 536 U.S. 953 (2002). I find those cases persuasive and adopt their reasoning in the case at hand. William Sablan' Motion To Strike The Nonstatutory Aggravating Factor Of Future s Dangerousness On The Grounds Congress Did Not Intend It To Be Considered In Aggravation [Wm-DP 21] is thus denied.1 B. William Sablan' Motion to Strike Future Dangerousness on the Grounds s That Neither Experts Nor Lay Persons, Including Jurors, Are Capable of Reliably Predicting It [Wm DP-25] (docket # 1706) and Rudy Sablan' s Motion To Preclude Expert Testimony On The Issue Of Future Dangerousness (R-50) (docket # 1698)

These motions seek to strike future dangerousness as a nonstatutory aggravating factor on the grounds that jurors are incapable of reliably predicting it. The motions also seek to prohibit expert witnesses from offering opinions on future dangerousness because they also are incapable of predicting it. Defendants cite studies showing that this testimony is not reliable. Further, they argue that the seminal case on this issue, Barefoot v. Estelle, 463 U.S. 880 (1983), should be reconsidered.

I also find no support for Defendant' argument that the catch-all language in § 3592(c) can s reasonably be interpreted as limited to the unique circumstances of a given case, which would be known only to the prosecution. I find no support for such a limitation in the language of 3592(c).

1

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The Supreme Court in Barefoot signaled that the evolution of events might cause it to revisit the issue of the reliability of expert testimony on future dangerousness, and Defendants argue that this is the time to do so. Further, Defendants argue that Barefoot did not and could not have decided the admissibility of expert testimony on future dangerousness under federal evidentiary law, i.e., whether expert testimony would be admissible under the FDPA. This is because the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the seminal case on reliability of expert testimony, after Barefoot. Defendants contend that the Daubert analysis should result in exclusion of expert testimony on future dangerousness, since such testimony fails all five factors discussed in that case to assess reliability. Finally, Defendants argue that the evidence should be excluded as more unfairly prejudicial than probative under 18 U.S.C. § 3593(c). Turning to my analysis, I deny Defendants' motions to the extent they seek a per se rule that lay and expert testimony on future dangerousness is inadmissible. I find the Supreme Court' opinions in Jurek v. Texas, 428 U.S. 262, 274-75 (1976) and Barefoot s controlling on these issues. In Jurek, the petitioner argued that " is impossible to predict it future behavior and that the question is so vague as to be meaningless."Jurek, 428 U.S. at 274. The Supreme Court disagreed, stating that while future behavior is not easy to predict, this " does not meant that it cannot be made....[i]ndeed, prediction of future behavior is an essential element in many of the decisions rendered throughout our criminal justice system."Id. at 274-75. Jurek thus rejected a constitutional challenge to the Texas system which required the jury to determine whether there was "a probability that the ` -5-

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defendant would commit criminal acts of violence that would constitute a threat to society' if he were not sentenced to death." Id. at 272, 276 (quotation omitted). Barefoot relied on Jurek in finding that expert testimony on the issue of future dangerousness was not per se inadmissible. It stated that " it is not impossible for even if a lay person sensibly" determine the likelihood of a defendant committing further crimes to and future dangerousness, it makes little sense, if any, to submit that psychiatrists, out of the entire universe of persons who might have an opinion on the issue, would know so little about the subject that they should not be permitted to testify." Barefoot, 463 U.S. at 89697. In Barefoot, the State of Texas called two psychiatrists who testified that the defendant would probably commit further acts of violence and represented a continuing threat to society. There were three issues before the Court: (1) whether psychiatrists " are incompetent to predict with an acceptable degree of reliability that a particular criminal will commit other crimes in the future and so represent a danger to the community" (2) , whether psychiatrists should be barred from testifying about future dangerousness without having personally examined the defendant and in response to hypothetical questions, and (3) whether the psychiatric testimony was so unreliable under the particular circumstances of that case that it constituted reversible error. Id. at 896. The Supreme Court rejected each of these arguments. Id. As to the first issue, the Supreme Court stated, " [a]cceptance of petitioner's position that expert testimony about future dangerousness is far too unreliable to be admissible would immediately call into question those other contexts in which predictions of future -6-

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behavior are constantly made."Id. at 898. It further noted " rules of evidence generally the extant at the federal and state levels anticipate that relevant, unprivileged information should be admitted and its weight left to the fact finder, who would have the benefit of cross examination and contrary evidence by the opposing party." Id. " Psychiatric

testimony predicting dangerousness may be countered not only as erroneous in a particular case but as generally so unreliable that it should be ignored." Id. " the jury If may make up its own mind about future dangerousness unaided by psychiatric testimony, jurors should not be barred from hearing the views of the State' psychiatrists along with s opposing views of the defendant' doctors." Id at 898-99. s The Supreme Court in Barefoot also considered the same type of evidence presented by the Defendants in this case as to the unreliability of psychiatric testimony about future dangerousness. More specifically, it considered an amicus brief of the American Psychiatric Association indicating that psychiatrists are wrong most of the time and testimony that psychiatric predictions of future dangerousness were wrong two of three times. Id. at 901 and n. 7. The Supreme Court found that this did not render the evidence unreliable. Id. at 901. It stated on that issue, " [w]e are unconvinced, however, at least as of now, that the adversary process cannot be trusted to sort out the reliable from the unreliable evidence and opinion about future dangerousness, particularly when the convicted felon has the opportunity to present his own side of the case." Id. Defendants have not cited any evidence that is materially different than that considered in Barefoot.

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Based on Jurek and Barefoot, the Supreme Court has indicated that both lay testimony and expert testimony are not per se inadmissible in a capital case. Further, Defendants have cited no authority to support their position that such testimony is inadmissible. The two cases cited by Defendants in connection with expert testimony are not controlling or even persuasive on this issue. First, Defendants rely on United States v. Sampson, 335 F. Supp. 2d 166 (D. Mass. 2004). There, the court noted that it may now be time for the Supreme Court to revisit Jurek and Barefoot in light of " [d]evelopments in the law and more recent scientific research." Id. at 218. According to Sampson, the law and research suggest " that expert testimony on future dangerousness would be inadmissible under the Federal Rules of Evidence and is also too unreliable to be admitted in the penalty phase of a capital case under the balancing test established by 18 U.S.C. § 3593(a)."Id. The court further stated that it " would probably have excluded any expert evidence offered on future dangerousness because its probative value would have been outweighed by the danger of creating unfair prejudice." Id. at 220. Sampson provides no basis to grant Defendants' motions. First, it specifically noted that this was an issue for the Supreme Court to revisit, since lower courts are bound by Supreme Court precedent "unless and until [the] Court reinterpret[s] the binding ` precedent.' "Id. at 218 (quoting Agostini v. Felton, 521 U.S. 203, 238 (1997)). I agree with Sampson. It is not the function of a district court to revisit an issue directly decided by the Supreme Court. That Court must decide if it wants to reconsider the issue. Second, the statement in Sampson that the court would probably exclude any expert testimony was -8-

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dicta, as the court specifically noted that it was not actually required to decide whether expert testimony on future dangerousness was admissible in the case. Id. at 220. Defendants also cite Flores v. Johnson, 210 F.3d 456, 462-70 (5th Cir. 2000) (Garza, J. concurring). That case also does not provide a basis for granting Defendants' motions. Flores was a habeas case. It did not directly address the issue of whether expert testimony on future dangerousness is admissible at the penalty phase of a capital case. Instead, the majority opinion addressed and rejected petitioner' arguments that: (1) he s did not receive effective assistance of counsel during the guilt and penalty phase of the trial, and (2) his conviction should be reversed for failure of the state to advise him of his right to inform Mexican consular officials of his arrest and detention and to be informed of his rights under the Vienna Convention on Consular Relations. Id. at 456-58. Judge Garza wrote an opinion specially concurring. Id. at 458-70. In that opinion, Judge Garza stated that while he did not disagree with the majority opinion, he wrote " separately to raise questions about the authority on which the opinion is based, which appears inconsistent with itself and, possibly, with the dictates of the Constitution."Id. at 458. Specifically, he addressed the testimony of a psychiatrist that Flores would be a future danger. Id. That psychiatrist never examined Flores and did not make an

evaluation based on psychological records of psychological testimony. Id. Instead, the psychiatrist " at trial, and based on the facts of the offense and Flores' conduct during sat s the trial (Flores did not testify), Dr. Griffith came to an ` expert' opinion on Flores' future s dangerousness." Id. Judge Garza expressed concerns about the reliability of such evidence, and noted, " appears that the use of psychiatric testimony to predict a it -9-

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murderer' ` s future dangerousness'fails"all five factors set out in Daubert to assist the court in determining reliability. Id. at 464-65 (citing Daubert, 509 U.S. at 593-94). While I find Judge Garza' concurrence illuminating and well reasoned, he did not actually s address the issue of Daubert' applicability to expert testimony presented at the penalty s phase of a capital case. Further, his concurring opinion provides no basis for me to ignore the binding precedent of Barefoot and Jurek and grant Defendants' motions. Accordingly, I deny Defendants' motions to the extent they seek a per se rule that expert and/or lay testimony on the issue of future dangerousness is inadmissible at the penalty phase. However, I defer the motions to the extent they seek a ruling that specific lay testimony or expert testimony to be presented in this case on future dangerousness is inadmissible. If the Government actually seeks to admit such evidence at trial, a later hearing will be held to determine whether the specific testimony sought to be offered is sufficiently reliable and relevant, and whether the probative value of such evidence is outweighed by the dangers of unfair prejudice, confusion of the issues or misleading the jury in accordance with 18 U.S.C. § 3593(c). Finally, I address the applicability of Daubert. As Defendants note, Daubert was decided after Barefoot and the Supreme Court has not had an occasion to consider the applicability of Daubert to evidence offered in connection with an aggravating factor at the penalty phase. Indeed, there is a dearth of authority on this issue from any court. Judge Garza noted that several commentators have questioned the viability of the Barefoot' s majority analysis post-Daubert. Id. at 464 n. 11. He further noted that while the Federal Rules of Evidence generally do not apply at a sentencing hearing, even one in which death -10-

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is a possibility, Daubert' holding addressing " cardinal concern of the rules of evidence s the ­reliability. . .is also the paramount concern in addressing the constitutionality of capital sentencing procedures."Id. n. 10. He found that " [t]his cannot be mere coincidence."Id. As stated previously, Judge Garza did not, however, actually address applicability of Daubert to the FDPA, and I have found no other guidance on this issue from any authority cited by the parties. The Government contends that Daubert is not applicable to the penalty phase since it addressed the Federal Rules of Evidence and, specifically, Rule 702. I agree with the Government that Daubert does not appear to be controlling at the penalty phase. The Supreme Court in Daubert granted certiorari " light of sharp divisions among the courts in regarding the proper standard for the admission of expert testimony." Daubert, 509 U.S. at 585. The specific issue on appeal in Daubert was whether the test for determining admissibility of expert evidence based on a scientific technique, requiring that the evidence be " generally accepted"as reliable in the relevant scientific community (known as the Frye test and acknowledged by the Court to be the " dominant standard for determining the admissibility of novel scientific evidence at trial" was superseded by the ) adoption of the Federal Rules of Evidence. Id. at 585-589.2 Daubert held that the Federal Rules of Evidence and, specifically, Rule 702, did supplant the Frye rule and were controlling on the issue of the admissibility of expert scientific evidence. Id. at 588-89 and n. 6, 597.

2

The test was first stated in Frye v. United States, 54 App.D.C. 46, 47, 293 F. 1013, 1014

(1923).

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The Supreme Court in Daubert went on to determine the scope of Rule 702 and the requirements of same as to expert scientific testimony. Id. at 589-97. It stated that " the overarching subject" of Rule 702 " the scientific validity and thus the evidentiary is relevance and reliability­of the principles that underlie a proposed submission."Id. at 59495. Thus, the trial judge is assigned the task under Rule 702 of ensuring that " expert' an s testimony both rests on a reliable foundation and is relevant to the task at hand." Id. at 597. In making this determination, the Supreme Court cautioned the trial court to " be mindful of other applicable rules"of evidence, including Rules 702, 706 and 403. Id. at 595. Thus, it is clear from a review of Daubert that it focused on the Federal Rules of Evidence and the requirements of Rule 702. The FDPA, however, specifically states that information in connection with an aggravating factor " admissible [at the penalty phase] regardless of its admissibility under is the rules governing admission of evidence at criminal trials...." 18 U.S.C. § 3593(c). Accordingly, I find that Daubert, to the extent it addresses the Federal Rules of Evidence and Rule 702, is not controlling at the penalty phase as to the admissibility of this evidence. The fact that Daubert is not controlling does not, however, mean that Daubert is irrelevant to the penalty phase. I leave to a later date a decision as to whether the framework Daubert set out for evaluating the reliability of evidence, including the five factors it found were relevant to the reliability determination, may be considered at the penalty phase in connection with a determination of the admissibility of expert testimony on future dangerousness, even if that framework is not controlling. This issue may be reraised by Defendants at the penalty phase should the case proceed to that phase. -12-

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In conclusion, Defendants' motions to strike expert and/or lay testimony on the issue of future dangerousness are denied to the extent they seek a per se rule that this testimony is not admissible. The motions are deferred as to all remaining issues. C. William Sablan' Motion To Strike Non-Institutional Incidents From s Nonstatutory Aggravating Factor Of Future Dangerousness [Wm DP-17] (docket #1684)

This motion seeks to strike the Government' allegations of prior criminal conduct s relating to " Non-Institutional Settings"from its nonstatutory aggravating factor of future dangerousness. Defendant asserts that in support of future dangerousness, the

Government lists six criminal incidents in paragraphs (a) - (f) under its heading of " NonInstitutional Setting." These incidents involve conduct between 1984 and 1996 that prompted the filing of criminal charges in Saipan. Defendant asserts that these incidents must be stricken from the NOI because they are not adequately related to the issue of whether William Sablan will be a future danger to inmates and staff when in a prison setting, citing cases. Further, it is contended that the unfair prejudice of introducing this evidence outweighs its probative value. I note that Rudy Sablan also seeks to strike the non-institutional incidents in the NOI. This request is made in his Motion in Limine Regarding Convictions and Incidents Alleged in Support of Non-Statutory Aggravating Factor of Future Dangerousness (R-53). Turning to my analysis, the Government agreed to withdraw all the non-institutional incidents in the NOI as to Rudy Sablan and certain of the non-institutional incidents. Indeed, such incidents have been withdrawn in the recently filed Second Amended NOI. Accordingly, Rudy Sablan' request in his Motion in Limine to have the non-institutional s -13-

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incidents withdrawn from the NOI is granted. All other arguments in his Motion in Limine are deferred. William Sablan' motion is also granted to the extent it seeks to strike any s non-institutional incidents that were withdrawn by the Government in its Second Amended NOI. I now turn to the non-institutional incidents relating to William Sablan that the Government has not agreed to withdraw. I grant William Sablan' motion to the extent it s seeks a ruling that future dangerousness must be evaluated in the context of life in a prison setting. The Government conceded that this is appropriate at the hearing, and I find it is the proper standard since it appears to be undisputed that Defendants are not eligible for parole and/or supervised release. In adopting this standard, I rely on Simmons v. South Carolina, 512 U.S. 154 (1994). While Simmons did not directly address the issue, it indicated that the issue of future dangerousness needs to take into account the fact that a defendant is not eligible for parole. It stated on that issue: In assessing future dangerousness, the actual duration of the defendant' s prison sentence is indisputably relevant. Holding all other factors constant, it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not. Indeed, there may be no greater assurance of a defendant' future s nondangerousness to the public than the fact that he will never be released on parole. The trial court' refusal to apprise the jury of information so crucial s to its sentencing determination, particularly when the prosecution alluded to the defendant' future dangerousness in its argument to the jury, cannot be s reconciled with our well-established precedents involving the Due Process Clause. Id. at 163-64. Cases interpreting Simmons and/or the issue raised by Defendant William Sablan in his motion have held that evidence of future dangerousness must be limited to the -14-

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prison context when the defendant is not eligible for parole. United States v. Rodriguez, No. CRIM. 2:04-CR-55, 2006 WL 487117, at *5 (D. N.D. 2006) (" [r]elying on Simmons, district courts appear to have routinely held that the government is limited to presenting evidence on future dangerousness in the context of life imprisonment" (citing cases); ) United States v. Llera Plaza, 179 F. Supp. 2d 464, 487-88 (E.D. Pa. 2001) (agreeing with courts that " have taken the Supreme Court' discussion in Simmons to mean that, in the s FDPA context, government arguments regarding ` future dangerousness' should be limited to the dangers posed by the defendants while serving a life sentence in prison" and limiting the government' evidence " that which is relevant to a context of life imprisonment" s to ); United States v. Cooper, 91 F. Supp. 2d 90, 112 (D.D.C. 2000) (evidence of future dangerousness would be permitted " only as it pertains to any threat Cooper may present if he is sentenced to life imprisonment without the possibility of release" United States v. ); Peoples, 74 F. Supp. 2d 930, 931 (W.D. Mo. 1999) ("future dangerousness'is to be ` confined to analysis of past activities and propensities for danger to inmates and prison staff...." see also United States v. Gilbert, 120 F. Supp. 2d 147, 154 (D. Mass. 2000); ); United States v. Glover, 43 F. Supp. 2d 1217, 1227 n. 6 (D. Kan. 1999). I find these cases persuasive and rely on them in finding that the Government must be required to evaluate future dangerousness in the context of life in a prison setting. As to the specific non-institutional incidents that William Sablan seeks to strike, this portion of the motion is denied without prejudice. I will need to evaluate each incident alleged in the Second Amended NOI to determine whether it is relevant to the issue of future dangerousness in the context of life in prison, whether it is sufficiently reliable, and -15-

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whether the requirements of 18 U.S.C. § 3593(c) are met, i.e., that the probative value of this evidence is not outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury. A week-long hearing has been set commencing August 28, 2006, to address the reliability of the particular incidents at issue. In conclusion, William Sablan' Motion To Strike Non-Institutional Incidents From s Nonstatutory Aggravating Factor Of Future Dangerousness [Wm DP-17] (docket #1684) is granted in part and denied without prejudice in part consistent with this Order. D. William Sablan' Motion to Strike Threatening Violence, Low Rehabilitative s Potential, and Lack of Remorse From The Government' Notice Of Intent To s Seek The Death Penalty [Wm DP-22] (docket #1689)

This motion seeks to strike the allegations of threatening others with violence, lack of remorse and low rehabilitative potential from the Government' NOI. The Government s indicated in response to the motion that it does not seek to introduce threats of violence, lack of remorse or low rehabilitative potential as separate nonstatutory aggravating factors but in support of future dangerousness. Further, the Government has stated that it will not give the NOI to the jury, and this was made an Order of the Court on April 13, 2006. Accordingly, Defendant' motion is denied as moot as to those arguments. s The remainder of the motion is denied without prejudice. As to the admissibility of specific evidence, this is deferred until the hearing set to commerce August 28, 2006. I do note, however, that courts have held lack of remorse can be considered in connection with future dangerousness and is not improper on a per se basis. United States v. O' Driscoll, 203 F. Supp. 2d 334, 345 (M.D. Pa. 2002); United States. v. Cooper, 91 F. Supp. 2d 90, 112 (D.D.C. 2000); United States v. Nguyen, 928 F. Supp. 1525, 1541 (D. -16-

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Kan. 1996); United States v. Davis, 912 F. Supp. 938, 946 (E.D. La. 1996); see also United States v. Davis, No. CR.A. 01-282, 2003 WL 1873088, at *9 (E.D. La. 2003); United States v. Bin Laden, 126 F. Supp. 2d 256, 303-04 (S.D.N.Y. 2000). It has also been held that low rehabilitative potential is relevant to the issue of future dangerousness. Nguyen, 928 F. Supp. at 1544; Davis, 912 F. Supp. at 946; see also United States v. Mayhew, 380 F. Supp. 2d 936, 950-51 (S.D. Ohio 2005); United States v. Taylor, 316 F. Supp. 2d 730, 742-43 (N.D. Ind. 2004). There is conflicting authority as to the admissibility of threats of violence without criminal conduct. I do not believe that threats should be excluded on a per se basis. Instead, I will decide the admissibility of the specific threats at issue at the August hearing when I hear them in context. Finally, I note that the motion requests that modifications be made to the special verdict form to be given to the jury at the conclusion of the penalty phase. This portion of the motion also is denied without prejudice. That request needs to be raised at the time any such jury instructions are under consideration by the Court. In conclusion, William Sablan' Motion to Strike Threatening Violence, Low s Rehabilitative Potential, and Lack of Remorse From The Government' Notice Of Intent s To Seek The Death Penalty [Wm DP-22] is denied as moot in part and denied without prejudice in part consistent with this Order. E. Rudy Sablan' Motion in Limine Regarding the " s Heinous or Depraved" Statutory Aggravating Factor [R--52] (docket #1700)

This motion seeks to strike the " heinous or depraved"statutory aggravating factor. Rudy Sablan argues that in order for this aggravating factor to be given, the Government

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must show that he committed the serious physical abuse and that he specifically intended the abuse apart from the killing. Thus, it is contended that unless the Government is prepared to show, beyond a reasonable doubt, that Defendant intentionally committed serious physical abuse, i.e, he cut open the victim' abdomen, the evidence of Defendant' s s actions in the aftermath are not relevant and reliable and would cause unfair prejudice to him. Defendant also requests that the Government make a detailed proffer on this issue. If the Government is not able to provide evidence as to what Rudy Sablan did to justify this aggravator, the Court should exclude evidence that the victim' abdomen was cut open s and organs removed pursuant to 18 U.S.C. § 3593(c) and the Eighth Amendment. Turning to my analysis, the Fifth Circuit approved an instruction stating, " [t]o establish that the defendant killed the victim in an especially heinous, cruel, or depraved manner, the government must prove that the killing involved either torture or serious physical abuse to the victim." United States v. Hall, 152 F.3d 381, 414 (5th Cir. 1998). Hall also indicated that the terms "heinous, cruel, or depraved'are stated in the ` disjunctive: any of them individually may constitute an aggravating circumstance

warranting imposition of the death penalty."Id. " Depraved" was defined to mean " the that defendant relished the killing or showed indifference to the suffering of the victim, as evidenced by torture or serious physical abuse of the victim." Id. Finally, the instruction approved in Hall stated that " order for a killing to be especially heinous, cruel, or in depraved on the basis of an infliction of physical abuse, ` defendant must have the specifically intended the abuse apart from the killing.' Id. at 415 (emphasis in original). "

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The Tenth Circuit rejected challenges (nonconstitutional in nature) to instructions " nearly identical"to those in Hall. United States v. Chanthadara, 230 F.3d 1237, 1261-62 (10th Cir. 2000), cert. denied, 534 U.S. 992 (2001). The Tenth Circuit also held that serious physical abuse (unlike torture) may be inflicted either before or after death and does not require that the victim be conscious of the abuse at the time it was inflicted. Id.; see also Richmond v. Lewis, 506 U.S. 40 (1992); United States v. Jones, 132 F.3d 232, 250 (5th Cir. 1998). In the case at hand, the Government asserts that there is evidence that Rudy Sablan strangled the victim (which did not appear to cause the death), mutilated the body at the time of death or shortly thereafter, and thereafter celebrated the death. The Government asserts that this evidence, if presented at trial, could prove that Defendant acted in a depraved manner and that he caused serious physical abuse to the body. I deny Rudy Sablan' motion without prejudice. I find that I must hear the evidence in s context to determine if this aggravating factor is proper as to Rudy Sablan. In other words, I am not prepared as a matter of law to rule at this time that there is no evidence that could support this aggravating factor. However, I agree with Defendant that the fact he can be sentenced to death based on complicity principles, see Tison v. Arizona, 481 U.S. 137, 158 (1987), is not relevant to whether this aggravating factor is appropriate as to him. The two are separate issues. Regardless of whether Defendant can be found guilty under a complicity theory, the heinous or depraved aggravating factor cannot be presented as to Rudy Sablan unless the evidence shows it is appropriate as to him. -19-

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F.

William Sablan' Motion To Limit Evidence Of Prior Convictions To The Fact s Of Conviction And To Exclude Evidence Of Underlying Conduct [Wm DP-19] (docket #1686) and Rudy Sablan' Motion to Limit Evidence of Prior s Convictions to Statutory Requirements (R-55) (docket # 1703)

These motions seek to limit evidence of the prior convictions being used by the Government to support statutory aggravating factors pursuant to 18 U.S.C. § 3592(c)(2) and (4) to proof of the fact of conviction only. 3 According to Defendants, limiting the evidence to the fact of conviction means that the evidence must be limited to a redacted charging document, the judgment and commitment order, the statutory definition of the offense of conviction, the possible penalty, and/or the date of the offense and date of conviction. Thus, Defendants argue that the Government should not be allowed to introduce evidence of the underlying facts regarding the conviction, as it does in the NOI. Defendants rely on Taylor v. United States, 495 U.S. 575, 599 (1990), which applied a categorical approach to the Armed Career Criminal Act [" ACCA" 18 U.S.C. § 924(e)(1). ], Defendants also assert, among other arguments, that the heightened reliability required in an capital case supports the exclusion of evidence of the underlying facts.

As to William Sablan, the Government seeks to in introduce the underlying facts regarding three felonies to support the statutory aggravating factor under § 3592(c)(2) (that " ...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 or attempted use of a firearm...against another person" These felonies, ). to which William Sablan pled guilty, are violations of 18 U.S.C.§ 922(g)(1) (felon in possession of a firearm), § 924(h) (transfer of a firearm knowing that it would be used to commit a crime of violence) and § 1203 (hostage taking). As to Rudy Sablan, the Government seeks to admit the underlying facts regarding two felonies to support the statutory aggravating factor under § 3593(c)(4) (that " [t]he defendant has previously been convicted of two or more Federal or State offenses, punishable a term of imprisonment of more than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person" Those two felonies, to which ). Defendant pled guilty, were aggravated assault and assault with a deadly weapon in violation of 18 U.S.C. §§ 7 and 113(a)(3).

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Turning to my analysis, I deny both motions as to the legal argument that the underlying convictions should be limited to the fact of conviction. I first address Taylor and its applicability to the FDPA. As Defendants recognize, the Supreme Court in Taylor held that the enhancement provision of § 924(e) of the ACCA requires a " categorical approach to the designation of predicate offenses." Id. at 588. Taylor explained that " Congress intended that the enhancement provision be triggered by crimes having certain specified elements, not by crimes that happened to be labeled ` robbery' ` or burglary' the laws of by the State of conviction." Id. at 588-89. The Court noted that " [e]ach of the proposed versions of the 1986 amendment carried forward this categorical approach, extending the range of predicate offenses to all crimes having certain common characteristics ­ the use or threatened use of force, or the risk that force would be used ­ regardless of how they were labeled by state law." Id. at 589. Taylor then answered a more general issue -- " whether the sentencing court in applying § 924(e) must look only to the statutory definitions of the prior offenses, or whether the court may consider other evidence concerning the defendant' prior crimes." s Id. at 600. It found that " only plausible interpretation of § 924(e)(2)(B)(ii) is that, like the the rest of the enhancement statute, it generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense."Id. at 602. In reaching this conclusion, the Supreme Court first found that " language of § 924(e) generally the supports the inference that Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not

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to the facts underlying the prior convictions." Id. at 600.4 Second, the Court noted that " legislative history of the enhancement statute shows that Congress generally took a the categorical approach to predicate offenses." Id. at 601. " Third, the practical difficulties and potential unfairness of a factual approach are daunting." Id. Turning to the FDPA, the Fourth Circuit considered and rejected the argument made by Defendants in their motion, i.e., that Taylor requires that § 3592(c) be interpreted to require a categorical approach requiring only that the fact of conviction and the statutory definition of the crime of conviction be admitted. United States v. Higgs, 353 F.3d 281, 316 (4th Cir. 2003). It held on that issue as follows: Higgs correctly points out that the Supreme Court has called for such a categorical approach when Congress has specified that a predicate offense have certain elements. See, e.g., Taylor, 495 U.S. at 588....However, this same approach is not required under § 3592(c)(2) of the federal death penalty scheme....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....Additionally, whereas the court in Taylor noted that the categorical approach was proper to avoid ` practical difficulties and potential unfairness of the a factual approach,' Taylor, 495 U.S. at 601,...the Court has made it clear that an individualized determination is required in the death penalty context.... Id. Other district courts have also rejected the categorical approach of Taylor in connection with the statutory aggravating factors and the death penalty scheme. See United States v. Rodriguez, No. CRIM. 2:04-CR-55, 2006 WL 487117, at 2-3 (D. N.D. Feb.
Taylor referenced § 924(e)(1), which refers to " person who ··· has three previous convictions' ` a for­not a person who has committed­ three violent felonies or drug convictions." Id. at 600. " Section 924(e)(2)(B)(I) defines ` violent felony' any crime punishable by imprisonment for more than a year that as ` as an element'not any crime that, in a particular case, involves­ use or threat of force." Id. has ­ the Taylor held that " [r]ead in this context, the phrase ` burglary' § 924(e)(2)(B)(ii) most likely refers to the is in elements of the statute of conviction, not to the facts of each defendant' conduct." Id. at 600-01. s
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28, 2006); United States v. Chong, 98 F. Supp. 2d 1110, 1120-21 (D. Hawai' 1999). i Rodriguez rejected the categorical approach on the basis of the difference in language between the ACCA and the FDPA. It stated, " [g]iven the different in language between the [ACCA] and the FDPA, a court is not looking at whether the elements of a crime have the ` potential' serious bodily injury, instead the court must look at what actually happened." for Rodriguez, 2003 WL 487117, at *2. Chong found that Taylor and other decisions applying the categorical approach to the career offender provision of the guidelines were inapposite because " they do not arise in the capital context, do not take into account the language of the Federal Death Penalty Act providing for the introduction of ` relevant information any' in support of aggravating factors, and do not consider the Supreme Court's mandate to particularize capital sentencing proceedings." Chong, 98 F. Supp. 2d at 1121. I do not agree with the portion of those cases relying on the differences in the language of the FDPA and the ACCA. In other words, I reject an argument that the difference in the language of the two statutes, standing alone, allows me to reject the categorical approach. It is true that Taylor referred to language in the ACCA that is different than the FDPA. It looked at a definition of the term " violent felony"that includes an offense that " as an element the use, attempted use, or threatened use of physical has force against the person of another robbery"which is different than the language of § 3592(c) that looks to whether the underlying offense " involved"certain conduct. This is the distinction that Higgs relied on. However, other definitions of predicate offenses in the ACCA specifically look at whether the underlying offense " involves"certain conduct, the same or similar language used in the FDPA. See 18 U.S.C. § 924(e)(2)(A)(ii) and (B)(ii). -23-

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Further, the Supreme Court in Taylor made clear that the ACCA in its entirety showed that Congress intended a categorical approach (not just the language referring to a violent felony having as an " element"the use of physical force). See Taylor, 495 U.S. at 602. Nonetheless, I still find that Defendants'motions asking the Court to take a categorical approach to § 3592(c) must be denied. First, the Supreme Court in Taylor specifically noted as a reason to adopt the categorical approach that the legislative history of the ACCA shows that Congress " took a categorical approach to predicate offenses." See Taylor, 495 U.S. at 601. Defendants have not shown through citation of legislative history that Congress intended the same result in connection with the FDPA. Indeed, that would be nonsensical in light of the fact that a capital case differs from a normal criminal case because of the need for more individualized sentencing, requiring that the jury " have before it all possible relevant information about the individual defendant whose fate it must determine." Jurek v. Texas, 428 U.S. 262, 275 (1976); Gregg v. Georgia, 428 U.S. 153, 204 (1976). Higgs and the other cases cited above correctly point this out. Second, I agree with the Government that courts generally hold that unadjudicated criminal conduct is admissible in connection with future dangerousness. See Section II.G, infra, denying William Sablan' Motion to Prohibit the Government From Introducing s Evidence of Unadjudicated Conduct. It is illogical that courts would allow evidence of unadjudicated criminal conduct, which necessarily requires introduction of the facts (since there is no conviction), and not allow in the facts in connection with an actual conviction. The actual conviction, even if not from federal or state courts in this country, is at least arguably more reliable than unadjudicated conduct. -24-

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Accordingly, I deny Defendants'motions to the extent they ask me to adopt a categorical approach and limit the statutory aggravating factors at issue to the fact of conviction. I also reject William Sablan' related argument that to the extent the s

Government seeks to introduce evidence of prior adjudicated criminal con1duct in connection with future dangerousness, it similarly should be limited to proving the fact of conviction. Finally, I deny the motions without prejudice as to the evidentiary issues, i.e., to the extent they request that I determine whether the probative value of the convictions is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury pursuant to 18 U.S.C. § 3593(c). Those issues will be addressed at the August 2006 hearing, as will William Sablan' argument that admission of the underlying facts as to s convictions entered as the result of a plea agreement is unfair because it denies a defendant the benefit of his bargain. This needs to be addressed in context in connection with the actual conviction being considered. As to Rudy Sablan' argument that allowing in the facts of conviction will result in s mini-trials, I do not believe this is necessarily true. Certainly, it will be more time consuming in the penalty phase to admit the underlying facts, but the Supreme Court has held that the jury should have before it all possible information. I do not believe that this should result in a mini-trial as to each issue. Further, I agree with the court' holding on s this issue in United States v. Beckford, 964 F. Supp. 993 (E.D. Va. 1997), wherein it stated:

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the apprehension of numerous mini-trials respecting the existence of unadjudicated conduct supplies an insufficient basis to wholly exclude such conduct in capital sentencing proceedings. Courts regularly resolve difficult and close questions about the admissibility of evidence and the offering of proofs. The procedures and trial management techniques by which this is usually accomplished will apply even though the proceeding involves capital punishment. Id. at 998. Finally, should I decide that the Government is allowed to present the underlying facts as to specific convictions addressed at the August hearing, I may require the Government thereafter to submit a detailed proffer as to what facts it seeks to admit about each of the underlying convictions so that I can determine whether any specific facts should be excluded. I also note that in making the determination under § 3593(c) at the August hearing, I agree with the holdings in Chong and Rodriguez that the parties should be precluded from relitigating the merits underlying the convictions. See Rodriguez, 2006 WL 487117, at *2; Chong, 98 F. Supp. 2d at 1121. G. William Sablan' Motion To Prohibit The Government From Introducing s Unadjudicated Criminal Conduct During the Penalty Phase [Wm DP-24] (docket #1707)

This motion seeks to prohibit the Government from introducing evidence of unadjudicated criminal conduct, i.e., criminal conduct that has not been adjudicated in a court of law. Defendant argues that the Supreme Court has not resolved the question of whether unadjudicated criminal conduct can be introduced in the penalty phase, despite the fact that the states are split on the issue. Defendant urges the Court to exclude such evidence under the Fifth, Sixth and Eighth Amendments. It is argued, among other things, that admission of this evidence cannot satisfy the heightened reliability standard in a -26-

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capital case, that the underlying facts as to such evidence need to be excluded under the categorical approach, and that guarantees of reliability from the federal rules of evidence are eroded at the penalty phase of a capital case by the FDPA. I deny this motion to the extent it seeks a per se ruling that unadjudicated criminal conduct should be excluded from the penalty phase. As recognized by defense counsel at the hearing on this motion, I previously ruled to some extent on this issue, rejecting Defendant Rudy Sablan' argument that only criminal conduct that has resulted in a s conviction for one of the crimes listed in § 3592(c) may be introduced in the penalty phase. United States v. Sablan, No. 00-CR-00531 (D. Colo. April 18, 2006) (order on Phase II motions, at 20). I further noted in that Order that the Tenth Circuit previously held that " admission of evidence of unadjudicated offenses at a sentencing proceeding does not violate due process." Id. (citing Boltz v. Mullin, 415 F.3d 1215, 1231 (10th Cir. 2005)). I now reject Defendant' additional arguments on this issue and decline to adopt a s per se rule of exclusion of such evidence. The Tenth Circuit has upheld the use of such conduct from a due process challenge. Hatch v. State, 58 F.3d 1447, 1465-67 (10th Cir. 1995), cert. denied, 517 U.S. 1235 (1996); see also Boltz v. Mullin, 415 F.3d 1215, 1231 (10th Cir. 2005) (stating that the Supreme Court has never indicated " that only those unadjudicated offenses which are supported by sufficiently reliable evidence may be introduced in the sentencing phase of a capital case" cert. denied, 126 S. Ct. 1631 ), (2006); Hawkins v. Mullins, 291 F.3d 658, 678 (10th Cir. 2002), cert. denied, 537 U.S. 1173 (2003).

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While I agree with Defendant that those cases are not dispositive on the issues raised by him because they are habeas cases with a different legal standard 5, they still lend support to the fact that the Tenth Circuit would not exclude this evidence under the Fifth Amendment or Due Process Clause. However, none of these cases actually

addressed the Eighth Amendment. While Hawkins referenced that the defendant objected to evidence of unadjudicated crimes on the basis of both the Eighth and Fourteenth Amendments, the Eighth Amendment and the reliability issues raised by that Amendment were not specifically addressed. Hawkins, 291 F.3d at 677-78. Nonetheless, the overwhelming weight of authority from other courts supports my finding that exclusion of such evidence on a per se basis is improper in a capital case. See United States v. Lee, 274 F.3d 485, 494 (8th Cir. 2001) (" [a]lthough determining whether there is a threat of unfair prejudice is a fact specific inquiry...the admission of evidence of unadjudicated prior offenses at a capital sentencing hearing is constitutionally permissible and not inherently prejudicial" United States v. Taylor, 316 F. Supp. 2d 730, ); 741-42 (N.D. Ind. 2004) (denying a per se request to bar unadjudicated conduct as an aggravating factor, holding that a hearing would be held to determine the reliability of such information and whether it meets the requirements of § 3593(c)); United States v. Gilbert, 120 F. Supp. 2d 147, 151-52 (D. Mass. 2000) (" overwhelming majority of federal courts the has held that neither the Eighth Amendment nor the due process clause impose a per se barrier to the use of unadjudicated criminal conduct in capital sentencing" (collecting )

As stated in Hawkins, a defendant in a habeas case is required to show that the state court decision was contrary to clearly established Supreme Court precedent or otherwise unreasonable. Hawkins, 291 F.3d at 678.

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cases); see also United States v Cooper, 91 F. Supp. 2d 90, 106-07 (D.D.C. 2000); United States v. Beckford, 964 F. Supp. 993, 997-99 (E.D. Va. 1997); United States v. Walker, 910 F. Supp. 837, 854 (N.D.N.Y. 1995). The court in United States v. Davis, 912 F. Supp. 938, 945 (E.D. La. 1996), summarized the compelling reasons for exclusion of such conduct but still held that a per se ruling excluding such conduct was improper. Specifically, it stated that the reasons for exclusion of unadjudicated criminal conduct include the fact " that a person is presumed innocent until proven guilty through reliable procedures" that it would be hard for a jury , " that has just convicted the defendant of first degree murder"to give this information " the sort of dispassionate consideration necessary for a reliable finding of guilt, regardless of how they might be instructed" and that the introduction of such evidence would entail a , full adversarial hearing. Id. at 948-49. However, it held that allowing such evidence to be introduced " a policy choice, the wisdom of which this court cannot question."Id. at 949. is It further stated that it was " persuaded that Congress did not intend a per se rule excluding such information; had they so intended, they would have said so, and nowhere in the statutory language is such an exclusion even implied."Id. Finally, Davis stated that " the admission of unadjudicated criminal conduct in the penalty phase is constitutional under current caselaw, assuming safeguards are in place to insure the necessary heightened reliability and offset the risk of undue prejudice, confusion of the issues and/or misleading of the jury." Id. I agree with the reasoning in Davis. I also agree with the court' conclusion in Gilbert that " s even if this court were not bound by precedent, defendant' arguments against admission [of such evidence] are s -29-

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outweighed by the simple fact that evidence of other acts of violence by a defendant ` is arguably more relevant and probative than any other type of aggravating evidence supporting imposition of the death penalty.' Id. at 152 (quoting Davis, 912 F. Supp. at " 948). Gilbert further stated, " [f]or the court to impose a per se ban on such evidence would give juries a far more positive view of many capital defendants than is true and accurate." Id. " This would detract from the reliability of capital sentencing, because the more information jurors have about offenders, the more reliable and predictable their determinations will be." Id. I also note that Gilbert rejected the argument made by Defendant regarding congressional intent. It stated on that issue: Congress did not intend, in delineating statutory aggravating factors, to forbid the introduction of other crimes as nonstatutory aggravating factors. As Judge Berrigan explained in Davis, requiring a finding of at least one specific statutory aggravating factor serves a gate-keeping function, limiting the type of murderers who will be exposed to the death penalty in the first place. See Davis, 912 F.Supp. at 948, n. 25. Congress could rationally conclude that once the Government has passed this statutory threshold, other relevant and reliably-proven criminal acts, even if uncharged, might also be offered as aggravating factors supporting a death sentence. . . .... Id. I adopt the reasoning of the above cases in rejecting Defendant' request for a per se s ban on unadjudicated criminal conduct.6 Finally, however, I deny the motion without prejudice to the extent it argues that the specific unadjudicated criminal conduct is not sufficiently relevant and reliable and that it
I also reject at this time the argument that this evidence will require mini-trials, adopting the analysis in United States v. Beckford, 964 F. Supp. 993, 998 (E.D. Va. 1997) (" apprehension of the numerous mini-trials respecting the existence of unadjudicated conduct supplies an insufficient basis to wholly exclude such conduct in capital sentencing proceedings" Finally, I reject Defendant' argument ). s that a categorical approach should apply for the same reasons stated in Section II.F., supra.
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should be excluded under 18 U.S.C. § 3593. That issue will be addressed at the August 28, 2006 hearing. As one court stated, " recognition that evidence of uncharged criminal a conduct may be offered does not mean that any criminal act may be considered by the jury as an aggravated factor." Gilbert, 120 F. Supp. 2d at 152. H. William Sablan' Motion to Strike Institutional Setting Incidents from Future s Dangerousness on the Grounds that the Conduct Alleged Is Not Criminal Conduct [Wm DP-18] (docket #1685)

This motion seeks to strike all unadjudicated incidents in the institutional setting from the NOI because they do not constitute criminal conduct.7 For the same reasons stated above in connection with William Sablan' Motion To Prohibit The Government s From Introducing Unadjudicated Criminal Conduct During the Penalty Phase [Wm DP-24], the motion is denied to the exent it seeks a per se rule that such incidents are inadmissible. To the extent Defendant argues that such incidents should be excluded because the future dangerousness aggravating factor for which such incidents are relevant is based on criminal conduct, I find that also does not require a per se exclusion of such evidence. I am not prepared to say as a matter of law that the fact that Defendant engaged in certain unadjudicated incidents in the institutional setting is not relevant to future dangerousness. Finally, the motion is denied without prejudice to the extent that Defendant seeks a ruling as to the admissibility of the specific incidents. I need to make an individualized determination as to the admissibility of each incident at the evidentiary hearing in August.

One incident does allege criminal conduct (paragraph (b) of the incidents listed in the NOI under Institutional Settings). Defendant is not seeking through this motion to strike that incident.

7

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I.

William Sablan' Motion to Strike Incidents Listed in Support of the s Government' Nonstatutory Aggravating Factor " s Future Dangerousness" on the Grounds They Are Insufficiently Relevant and Reliable [Wm DP-16] (docket #1683) and Rudy Sablan' Motion in Limine Regarding Convictions s and Incidents Alleged in Support of Non-Statutory Aggravating Factor of Future Dangerousness [R-53] (docket # 1701)

As stated in Section II.C., supra, Rudy Sablan' request in his motion to have the s non-institutional incidents withdrawn from the NOI is granted. The remainder of Rudy Sablan' motion and William Sablan' motion are deferred until the August 2006 hearing. s s J. William Sablan' Motion To Prohibit The Use of Prior Convictions Obtained s 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] (docket # 1687)

This motion seeks to preclude the Government from using convictions obtained as to William Sablan in the local courts of the Commonwealth of the Northern Mariana Islands.8 These convictions are used by the Government to support the future

dangerousness aggravating factor. Defendant argues that when evaluating the relevancy and reliability of criminal conduct relating to a nonstatutory factor, courts have looked to the statutory aggravating factors listed in the FDPA as a frame of reference. The statutory aggravators that relate to prior criminal conduct are limited to prior convictions for specified Federal offenses and/or Federal and State offenses. Presumably, it is argued, Congress considered such convictions not only relevant but also reliable because the convictions were obtained within our Federal or State systems.

This motion does not address convictions in the United States District Court for the District of the Northern Mariana Islands.

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In this case, the convictions at issue do not involve Federal or State offenses, but are related to violations of the Northern Mariana Islands Commonwealth Code. Defendant asserts that the Covenant that governs the relationship between the United States and the Commonwealth of the Northern Mariana Islands [" CNMI" specifically envisions the CNMI ] as a self-governing commonwealth with the right to govern itself with respect to local affairs and to have its own courts with jurisdiction over such affairs. The CNMI established the Superior Court of the CNMI which has original jurisdiction over criminal actions. Defendant argues that based on 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. I find that Defendant' motion must be denied. I first note, however, that I agree s with Defendant that violations of the local law of the CNMI do not constitute a Federal or State offense. As to a State offense, while the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States makes clear that the CNMI is under the sovereignty of the United States, it does not make the CNMI a state. See 48 U.S.C. § 1801 (setting out the full text of the Covenant in the notes). Instead, the Covenant gives the people of CNMI the right to a certain level of " self-determination" ). Covenant, Art. I, §§ 101, 103. Further, while the CNMI has attributes of a state, it is not a state even for purposes of application of federal law. Northern Mariana Islands v. United States, 279 F.3d 1070, 1072 (9th Cir. 2002) (" [u]nder the plain meaning of ` State,' it as appears in the Quiet Title Act, the CNMI clearly would not qualify" overruling recognized ), on other grounds, DeNieva v. Reyes, 966 F.2d 480, 483 (9th Cir. 1992); see also Fleming -33-

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v. Dept. of Pub. Safety, 837 F.2d 401, 406 & n. 6 (9th Cir. 1988) (noting that, although the CNMI " enjoys many attributes of statehood" it is not a state). Thus, I find that a violation , of the local law of the CNMI does not constitute a state offense. . I also find that the offenses at issue are not Federal offenses, since the violations

did not arise from federal law but from the local law of the CNMI. The Government relies heavily on 18 U.S.C. § 5 in arguing that the laws of the CNMI should be construed to be federal offenses. That statute defines the United States in a " territorial"sense"