Free Response - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 1882

Filed 08/25/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-000531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants.
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William Sablan's First Supplemental Response To The Government's July 24, 2006 Proffer Regarding Future Dangerousness ________________________________________________________________________ Defendant William Sablan ("William"), through undersigned court-appointed counsel, supplements his response to the Government's Proffer of Penalty Phase Evidence in Support of Nonstatutory Aggravating Factor of Future Dangerousness. (Document 1843), to include objections pursuant to Crawford v. Washington, 541 U.S. 36 (2004). As grounds, counsel state: 1. Among his Phase II motions, William facially challenged the constitutionality of the Federal Death Penalty Act ("FDPA"), including its provision that the federal rules of evidence do not apply to the penalty phase, 18 U.S.C. § 3593(c). (Docket # 1514). 2. The Court denied the motion, relying on United States v. Fell, 360 F.3d 135 (2d Cir.), cert. denied, 543 U.S. 946 (2004) and United States v. Rodriquez, 380 F. Supp.

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2d 1041 (D. N.D. 2005), both of which rejected a similar facial challenge to § 3593(c). 3. Nevertheless, the Court recognized the qualifications of both cases, noting that the FDPA "does not prevent a court from excluding unconstitutional evidence when proffered." (Document 1760 at 11). See Fell, 360 F.3d at 138 ("the FDPA does not alter a district court's inherent obligation to exclude evidence the admission of which would violate a defendant's Constitutional Rights"); Rodriguez, 380 F. Supp. 2d at 1054 ("[t]he Constitution is not suspended during the sentencing phase . . . questions regarding confrontation, due process, reliability, and probative value considerations are issues the judge still has to consider with [sic] regarding to [sic] sentencing evidence"). See also United States v. Haynes, 269 F. Supp. 2d 970, 985 (W.D. Tenn. 2003) (because the FDPA expressly supplants only the rules of evidence, not constitutional standards, the district court retains the authority and flexibility to impose standards of admissibility or fairness dictated by the Fifth and Sixth Amendments); United States v. McVeigh, 944 F. Supp. 1478 (D. Colo. 1996) ("the substitution of information for evidence in § 3593 (c) raises the specter of violations of the Confrontation Clause and other fundamental protections contained in the Fifth and Sixth Amendments. What saves the statute is the fact that the hearing is governed by a trial judge . . .. Congress has no authority to prevent the court from protecting the life and liberty of a defendant by the exercise of its Article III authority to conduct all hearings before it"). 4. The government's July 24, 2006 proffer presents Sixth Amendment issues under Crawford. In Crawford, the Supreme Court held that the Confrontation Clause
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forbids the introduction of out-of-court testimonial statements unless the witnesses are unavailable for trial and the defendant had a prior opportunity to cross-examine them. Testimonial statements include prior testimony at a former trial. Id. at 68. They also include statements taken by police in the course of interrogation, a term to be understood in its colloquial, rather than any technical sense. Id. at 53 n.4. When the purpose of police questioning is to determine what had happened in the past for purposes of investigating a possible crime, the responses constitute testimonial statements. Davis w. Washington, 126 S. Ct. 2266, 2278 (2006). 5. Paragraphs #3 (NOI ¶: C 1 (c), and #4 (NOI ¶: C 1 (d) of the government's proffer raise Crawford questions. Both relate to robberies involving Japanese victims. The proffer indicates that the victims will be absent from trial, and that the government will use instead audiotapes of part or all of the trial testimony in both cases. In order to introduce such tapes, however, the government must establish that the victims are unavailable to testify at the penalty phase. Compare Mattox v. United States, 156 U.S. 237 (1895) (witness who testified at original trial was unavailable at second trial due to his death) with Barber v. Page, 390 U.S. 719 (1968) (although witness incarcerated in a federal prison outside Oklahoma, he was not unavailable because the State of Oklahoma had made no effort to utilize a writ of habeas corpus ad testificandum or the Uniform Act To Secure the Attendance of Witnesses from Without a State to secure his presence). 6. In addition to unavailability, the government must show that the defendant previously had the opportunity to cross-examine those witnesses. Because the trials took
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place in the Commonwealth of the Northern Mariana Islands ("CNMI") it cannot be assumed that that right was afforded to the defendant or meaningfully exercised. 7. Regarding the robbery conviction alleged in # 4 of the proffer, the government proposes, as an alternative to audiotapes of trial testimony, the testimony of Detective Stephens regarding his interview of Mr. Yasou, an alleged victim, and the testimony of Detective Salas regarding his interview of Mr. Nemoto, a second alleged victim. According to Crawford and Davis, both interviews produced testimonial statements. Thus in order to use the such testimony, the government must establish Yasou's and Nemeto's unavailability and that the defendant had a prior opportunity to cross-examine them regarding their statements in the course of the interviews. Again, because the conviction was obtained in a CNMI court, it cannot be assumed that the local prosecutors provided these interviews as part of pretrial discovery or in the course of the trial. Further, it cannot be assumed that Mr. Yasou's and Mr. Nemoto's trial testimony was consistent with their interviews. 8. The government's proffer regarding the statutory aggravating factor ­ prior conviction of violent felony involving firearm ­ also presents Crawford issues. (NOI ¶: B 1; Proffer at 21). It proposes presenting the testimony of ATF Special Agent Bartosh, who was present during the interview of Chinese detainee Zhou Bo. Zhou Bo's statements are testimonial because they were the product of police questioning and the defendant did not have a prior opportunity to cross-examine him. To introduce Bartosh's testimony would constitute a violation of William's right to confrontation.
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WHEREFORE, William requests that before allowing the government to use of either the prior trial testimony and/or the alleged victims responses to police interrogation, the Court require the government to establish the unavailability of the witnesses and prior opportunities for the defendant to cross-examine them as to their prior testimony and/or their prior interviews. Dated: August 25, 2006 Respectfully submitted, Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan Nathan Chambers Chambers, Dansky & Mulvahill 1601Blake Street, Suite 300 Denver, CO 80202 303-825-2222

CERTIFICATE OF SERVICE I hereby certify that on August 25, 2006 I electronically filed the foregoing William Sablan's Motion Supplemental Response To The Government's July 24, 2006 Proffer Regarding Future Dangerousness with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses:
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[email protected] [email protected] [email protected] [email protected] By: /s/Susan L. Foreman

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