Free Response to Motion - District Court of Colorado - Colorado

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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 AMENDED RESPONSE TO DEFENDANTS' MOTIONS TO PROHIBIT USE OF CNMI OR GUAMANIAN CONVICTIONS IN PENALTY PHASE [Wm DP-20 and R-51]

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 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] and Rudy Sablan's Motion to Preclude Evidence of Alleged Statutory Aggravator (4/12/88) Conviction [R-51].

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A. INTRODUCTION William Sablan asks the Court to preclude the government from using convictions from the local courts of the Commonwealth of the Northern Mariana Islands ("CNMI"). See William Sablan's Motion to Prohibit Use of CNMI Convictions [Wm DP-20] at 1. The government has cited a number of such convictions in Section C.1. of its Amended Notice of Intent to Seek the Death Penalty regarding William Sablan. As grounds for his motion, William Sablan states that "it is reasonable to infer that Congress did not intend jury consideration of prior convictions other than those obtained in federal and state courts." Id. at 4. The only authority that William Sablan states in support of this inference are two cases arising from a completely different statutory scheme, namely, 18 U.S.C. § 922(g) [felons in possessions of firearms] and 18 U.S.C. § 924(e) [armed career criminals]. Defendant Rudy Sablan's motion is more specific. He seeks to prohibit the government from relying upon his conviction in April 12, 1988 for Aggravated Assault in the Superior Court of Guam, which conviction the government has identified as a statutory aggravating factor in Section B of its Amended Notice of Intent to Seek the Death Penalty. As grounds for his request, Rudy Sablan claims that this Guamanian conviction is not a "federal" or "state" conviction under 18 U.S.C. § 3592(c)(4); that it does not involve "serious bodily injury"under 18 U.S.C. § 3592(c)(4); and that it should be excluded because Rudy Sablan was a juvenile at the time of the offense. Rudy

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Sablan's Motion to Preclude Evidence of April 12, 1988 Conviction [R-51] at 2-3. B. ANALYSIS 1. CNMI and Guamanian Convictions Are "State" or "Federal" Convictions For Purposes of § 3592(c)(4)

Both defendants claim that convictions in the local courts of either the CNMI or Guam are not "Federal or State" convictions within the meaning of the 18 U.S.C. § 3592(c)(4) of Federal Death Penalty Act. 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 other serious offenses.­ The defendant has previously been convicted of 2 or more Federal or State offenses, punishable by a term of imprisonment or more than 1 year, committed on different occasions, involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person. Neither defendant offers any explanation why a conviction from the CNMI or Guam is not a "state" or "federal" conviction within the meaning of the FDPA. Instead, both defendants assume that these convictions are "foreign convictions." See William Sablan's Motion to Prohibit Use of CNMI Convictions [Wm DP-20] at 4; Rudy Sablan's Motion to Preclude Evidence of April 12, 1988 Conviction [R-51] at 3. There is no reason to assume that Congress, in passing the FDPA, intended to consider local convictions from the CNMI or Guam as "foreign" convictions outside of the scope of § 3592(c)(4). First, neither the CNMI nor Guam are foreign countries.

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Rather, both the Commonwealth of the Northern Mariana Islands and the Territory of Guam are under the soveignity of the United States. Title 18 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 and Guam are included within this definition. Commonwealth of the Northern Mariana Islands ­ The legal authority of the United States vis-a-vis the CNMI is set forth in the Covenant To Establish A Commonwealth of the Northern Mariana Islands in Political Union with the United States (the "Covenant") (the full text of the Covenant is located in the notes following 48 U.S.C. § 1801); Commonwealth of the Northern Mariana Islands v. Atalig, 723 F.2d 682, 685 (9 th Cir. 1984). The Covenant expressly provides that the CNMI will be "in political union with and under the sovereignty of the United States of America." Covenant §101. Although Section 103 of the Covenant provides that "[t]he people of the Northern Mariana Islands will have the right of local self-government and will govern themselves with respect to internal affairs," this reservation of powers is no different than the control any of the fifty states has over its own local affairs. See Commonwealth of the Northern Mariana Islands v. United States, 279 F.3d 1070, 1073 (9 th Cir. 2002) (regarding CNMI 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). Thus, for purposes of

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interpreting 18 U.S.C. § 3592(c)(4) of Federal Death Penalty Act, the CNMI should be considered as a "state" and its judgments of conviction should be considered proper aggravators in the penalty phase. Guam ­ Guam is an unincorporated territory of the United States that is subject to the plenary power of Congress. 48 U.S.C. § 1421a. See Guam v. Guerrero, 290 F.3d 1210, 1214 (9 th Cir. 2002); Guam v. Okada, 694 F.2d 565, 568 (9 th Cir. 1982). Guam has no inherent right to govern itself. Id. "[A] territorial government is entirely the creation of Congress, and its judicial tribunals exert all their powers by authority of the United States." United States v. Wheeler, 435 U.S. 313, 321 (1978) (citations omitted). "When a territorial government enacts and enforces criminal laws to govern its inhabitants, it is not acting as an independent political community like a State, but as `an agency of the federal government.'" Id., quoting Domenech v. National City Bank, 294 U.S. 199, 204-05 (1935). Citizens of Guam are citizens of the United States. 8 U.S.C. § 1407. Thus, whether thought of as "federal" or "state" laws, the criminal laws of Guam are the product of the United States' sovereignty over the Territory. It would be illogical under such circumstances to interpret § 3592(c)(4) as excluding Guamanian convictions when (a) 18 U.S.C. § 5 defines the "United States" to include territories such as Guam; (b) Guam is not a sovereign nation, but rather a territory of the United States; and (c) the Aggravated Assault statute that Rudy Sablan was convicted of was passed under the delegated authority of Congress, not by a foreign government outside of Congress'

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purview. Both defendants cite Small v. United States, 125 S.Ct. 1752 (2005), and United States v. Concha, 233 F.3d 1249 (10 th Cir. 2000), in support of their argument that "foreign" convictions should not apply to § 3592(c)(4). See William Sablan's Motion to Prohibit Use of CNMI Convictions [Wm DP-20] at 4; Rudy Sablan's Motion to Preclude Evidence of April 12, 1988 Conviction [R-51] at 3. There are several reasons why these cases have no application here. First and foremost, the defendants' convictions are not "foreign" convictions, unlike Small, which involved a Japanese conviction, and Concha, which involved convictions from the United Kingdom. Second, neither Small nor Concha interpreted the FDPA, but rather 18 U.S.C. §§ 922(g) and 924(e), respectively. Thus, the statutory context is not analogous. Third, even if Small and Concha were analogous here, there is no doubt that local felony convictions from Guam and the CNMI are predicate offenses under §§ 922(g) and 924(e). See, e.g., United States v. Carriaga, 134 F.3d 379 (9 th Cir. 1998) (Guam burglary conviction was a predicate to § 924(e) sentence enhancement) (unpublished). Thus, rather than supporting their position, Small and Concha actually hurt it since, despite the supposed ambiguity about the meaning of "state" and "federal," convictions from Guam and the CNMI are predicates to §§ 922(g) and 924(e) violations. 2. Rudy Sablan's 1988 Conviction Involved "Serious Bodily Injury" under § 3592(c)(4)

Rudy Sablan claims that his April 12, 1988 conviction for Aggravated Assault did 6

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not involve "serious bodily injury" as required by 18 U.S.C. § 3592(c)(4). See Rudy Sablan's Motion to Preclude Evidence of April 12, 1988 Conviction [R-51] at 2-3. There is little case law on the definition of "serious bodily injury" as used in § 3592(c)(4). However, at least one court has defined the term consistently with the definition Congress has used in other statutes. See United States v. Rodriguez, 389 F. Supp. 2d 1135, 1141-42 (D.N.D. 2005) (using definition found at 18 U.S.C. § 1365(g)(3), as well as at 18 U.S.C. § 113 and § 2119). The term "serious bodily injury" in 18 U.S.C. § 1365(g)(3) is defined as: bodily injury which involves­ (A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty. In connection with his guilty plea in the 1988 case, Rudy Sablan signed a written plea agreement. That plea agreement contains a description of the factual basis for the Aggravated Assault. A copy is attached as Exhibit 1. The plea agreement states that "[t]he charge arises out of the assault by the defendant upon Jose C. Camacho on December 4, 1986 with a belt and belt buckle about the facial area causing several deep lacerations and semi-unconsciousness to Mr. Camacho." Exh. 1, p. 2. These injuries are consistent with "infliction of, or attempted infliction of, serious bodily injury." 18 U.S.C. § 3592(c)(4). Moreover, Rudy Sablan admitted that he caused "serious bodily injury" to the 7

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victim. The defendant pled guilty to Aggravated Assault, 9 G.C.A. § 19.20(a)(1), Exh. 1, p. 2, which involves causing "serious bodily injury to another in circumstances manifesting extreme indifference to the value of human life." A copy of the statute is attached hereto as Exhibit 2. Although Rudy Sablan claims that the definition of "serious bodily injury" in 9 G.C.A. § 19.20(a)(1) is unclear, what is clear is that the "serious bodily injury" that he caused to Mr. Camacho by cutting him deeply in the face and knocking him semi-unconscious manifested "extreme indifference to the value of human life." Exh. 2. By any definition, that is "serious bodily injury." 3. The Fact that Rudy Sablan Was a Juvenile Is Irrelevant

Rudy Sablan asks the Court, in its "gatekeeping" role, not to count his 1988 conviction from Guam because he was 16 at the time of the offense. See Rudy Sablan's Motion to Preclude Evidence of April 12, 1988 Conviction [R-51] at 2-3. There are several important facts about this conviction. First, the 1988 conviction is an adult conviction. The Attorney General of Guam obviously prosecuted him as an adult, despite the fact that he was 16, because of the violent nature of the offense. Second, this incident is highly relevant to the defendant's character. In order for the jury to make an informed decision during any penalty phase regarding Rudy Sablan, it is necessary that the jury have a full understanding of the defendant's character and background. The Supreme Court has recognized this important principle of capital litigation. "[W]hat is essential is that a jury have before it all possible relevant

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information about the individual defendant whose fate it must determine." Jurek v. Texas, 428 U.S. 262, 276 (1976). Similarly in Gregg v. Georgia, 428 U.S. 153, 204 (1976), the Court stated that "[w]e think it desirable for the jury to have as much information before it as possible when it makes the sentencing decision." The serious attack on Mr. Camacho is obviously highly relevant to the jury's understanding of the defendant's character. See United States v. Pretlow, 770 F. Supp. 239, 243 (D.N.J. 1991) (juvenile convictions relevant to aggravating factors in death penalty prosecution under 21 U.S.C. § 848(e)(1)(A)). As stated in the FDPA, the jury "may consider whether any other aggravating factor for which notice has been given exists." 18 U.S.C. § 3592.1 The court in United States v. Davis, 2003 WL 1873088 (E.D. La. 2003), considered the government's intent to use three juvenile adjudications and one conviction where the defendant was a juvenile but prosecuted as an adult as nonstatutory aggravators. Id. at *5. The court excluded two juvenile adjudications where the defendant was 11 and 13 years old at the time due to a variety of factors not solely dependent on age, but allowed the government's use of a juvenile adjudication when the

In deciding whether a juvenile conviction could be considered an "aggravated felony" under 8 U.S.C. § 1101, the court in United States v. Gebele, 117 F. Supp. 2d 540, 544 (W.D. Vir. 2000), noted that the statutory definition does not distinguish between juveniles and adults, and "the absence of any distinction in the statute indicates that Congress did not intend to distinguish between aggravated felonies committed by an adult and those committed by a juvenile." See also United States v. Lender, 985 F.2d 151, 155 (4 th Cir. 1993) (where juvenile prosecuted as an adult, conviction can be considered an "aggravated felony" under 18 U.S.C. § 924(e)). 9

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defendant was 15 years old and the use of the adult conviction, which was committed when the defendant was 16 years old, because both convictions were relevant to the defendant's character. Id. at *6. In response to the defendant's claim that it would be improper to use such convictions because of the defendant's age, the court stated: The Court finds that the weight to be given juvenile conduct based on the physical, emotional, and cognitive development of the juvenile is a matter to be considered by the jury as it weighs these aggravating factors in the sentencing process. Both parties will have the opportunity to inform the jury as to how much or how little importance they believe the jury should attach to defendant's juvenile conduct. 18 U.S.C. § 3593(c). Further, in addition to being able to challenge the seriousness of his juvenile behavior, the defendant will be able to provide information on the social, economic, psychological, or emotional deprivations he suffered as a juvenile to rebut the juvenile delinquency adjudications. Id. In summary, these juvenile adjudications, except for the first two, will not be stricken as nonstatutory aggravating factors. Id. The defendant in United States v. Jordan, 357 F. Supp. 2d 889, 896 (E.D. Vir. 2005), objected to the government's intended use as nonstatutory aggravating factors of a number of traffic and drug possession convictions while he was a juvenile. In denying the defendant's request to strike such convictions, the court noted at 897: Defendant Gordon's record, whether it contains serious or minor offenses, conveys information to the jury about his character and is therefore relevant to the sentence selection process. "The possession of the fullest information possible concerning the defendant's life characteristics" is vitally essential to the selection of a proper sentence. Williams v. New York, 337 U.S. 241, 247 (1949). Admission of this type of evidence is appropriate "even though ... defendant's prior history of noncapital convictions could not by itself provide sufficient justification for imposing the death sentence." Zant v. Stephens, 462 U.S. 862, 888 (1983). 10

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Similarly, Rudy Sablan's 1988 conviction should not be excluded simply because of his age. Given the fact that it is highly probative of his character, it would be improper to deprive the jury of this information in making its decision. As the court noted in Davis, the defendant can rebut this conviction, if he chooses, with evidence about the defendant's age and maturity at the time. As a result, this aspect of Rudy Sablan's motion should be denied. 4. Guideline Arguments of Rudy Sablan Are Irrelevant

Rudy Sablan also makes various arguments about how the United States Sentencing Guidelines would treat his 1988 conviction. See Rudy Sablan's Motion to Preclude Evidence of April 12, 1988 Conviction [R-51] at 3-4. The Guidelines, however, are not only advisory but irrelevant to the penalty phase of a capital case. WHEREFORE the United Stated requests that 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] and Rudy Sablan's Motion to Preclude Evidence of Alleged Statutory Aggravator (4/12/88) Conviction [R-51] be denied.

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Respectfully submitted this 27 th day of March, 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 27th day of March, 2006, I electronically filed the foregoing GOVERNMENT'S AMENDED RESPONSE TO DEFENDANTS' MOTIONS TO PROHIBIT USE OF CNMI OR GUAMANIAN CONVICTIONS IN PENALTY PHASE [Wm DP-20 and R-51] 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]

Attorneys for Rudy Sablan Donald R. Knight [email protected] Forrest W. Lewis [email protected]

Nathan Dale Chambers [email protected] [email protected]

Susan Lynn Foreman [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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