Free Govt's Proffer - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 00CR-531-WYD-02 UNITED STATES OF AMERICA, Plaintiff, v. 2. RUDY CABRERA SABLAN, Defendant.

GOVERNMENT'S AMENDED PROFFER OF PENALTY PHASE EVIDENCE IN SUPPORT OF NON-STATUTORY AGGRAVATING FACTOR OF FUTURE DANGEROUSNESS OF RUDY CABRERA SABLAN

The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, and through Brenda K. Taylor and Philip A. Brimmer, Assistant U.S. Attorneys, herein files its amended proffer of penalty phase evidence in support of the non-statutory factor of future dangerousness of defendant Rudy Sablan. INTRODUCTION The government filed its original proffer of future dangerousness penalty phase evidence regarding Rudy Sablan on July 24, 2006. In that proffer, the government referenced certain materials which had been requested from Guam and Saipan but not yet

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received at the time of the filing of the proffer: At the status hearing held August 8, 2006, the Court ordered the government to file an amended proffer "indicating what evidence has been produced in support of the proffer as well as what evidence has not been produced" (Document 1864). The amended proffer sets out additional information which has been received since the status hearing and clarifies what has been provided to defense counsel. Included with this amended proffer is a brief summary of case law regarding evidentiary issues in the penalty phase. II. ADMISSIBILITY OF HEARSAY AND APPLICATION OF THE CONFRONTATION CLAUSE DURING THE PENALTY PHASE Title18 U.S.C. 3593 (c) specifically allows information to be used during a death penalty sentencing hearing regardless of its admissibility under the Federal Rules of Evidence in a criminal trial, unless its probative value is outweighed by the danger of unfair prejudice, confusing the issues or misleading the jury. Therefore, hearsay evidence is not prohibited during the penalty phase of this capital case. United States v. Brown, 441 F.3d 1330, 1360-61 (11 th Cir. 2006). To the extent that evidence offered is testimonial, the Court must determine whether the Confrontation Clause would be violated by its admission. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that testimonial evidence from an absent witness may be admitted only when the witness is unavailable and the 2

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defendant had a prior opportunity to cross-examine the declarant. Id. at 68. The Crawford rule applies only to testimonial evidence. Id. 1 And the Eleventh Circuit, in Brown, did not reach the Crawford issue because the evidence in question was nontestimonial. Prior to Crawford, the appellate courts had been in conflict as to whether the Confrontation Clause was applicable to capital sentencing hearings. See Brown, 441 F.3d at 1361, n.12. In the habeas context, the Eleventh Circuit has held that it does apply, id., while the Fourth and Seventh Circuits have held to the contrary. See also United States v. Higgs, 353 F.3d 281, 324 (4 th Cir. 2003); Szabo v. Walls, 313 F.3d 392, 398 (7 th Cir. 2002). However, of the cases reviewed by the government, all but one of the United States District Courts which have addressed the issue since Crawford have taken a consistent approach. They have bifurcated the penalty phase and have held that Crawford applies only to the eligibility phase (during which the jury determines if the defendant is eligible under the statute to receive the death penalty), and not to the

Examples of "testimonial" evidence were set out in the Crawford opinion as "ex parte in-court testimony or its functional equivalent­that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially ... extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions ...statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Crawford, 541 U.S. at 51-52, 124 S. Ct. 1354 (emphasis added). 3

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selection phase (during which the jury determines whether a sentence of death should be imposed). See Brown, 441 F.3d at 1361, citing United States v. Bodkins, 2005 WL 1118158 (W.D. Va. 2005); United States v. Jordan, 357 F. Supp. 2d 889 (E.D. Va. 2005); United States v. Johnson, 378 F. Supp. 2d 1051 (N.D. Iowa 2005). But see United States v. Mills, --F. Supp. 2d--, 2006 WL 2381329 (C.D. Cal.) (holding that the Confrontation Clause applies to all phases of sentencing in capital cases). The proffer and amended proffer in this case concern the non-statutory aggravator of future dangerousness of the defendant. Since evidence of future dangerousness is only considered by the jury after it has determined the defendant to be statutorily death eligible, it is part of the selection phase and the Crawford rule should not restrict the admissibility of evidence. III. AMENDED PROFFER­FUTURE DANGEROUSNESS A. Third Amended NOI ¶¶ C 1 (a) through (h) 1. NOI ¶: C 1(a) Date of Offense: 12/4/86 Court case/BOP #: Superior Court, Guam, Criminal Case 67F87 Conviction: Aggravated Assault on Jose C. Camacho The evidence offered to establish this conduct as indicative of future dangerousness of Rudy Sablan may include the following: a. Certified Copies of Court Documents: (1) Indictment dated April 16, 1987, alleging that Rudy C. Sablan did 4

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"recklessly cause serious bodily injury to Jose C. Camacho in circumstances manifesting extreme indifference to the value of human life"; (2) Plea Agreement signed by Rudy Sablan and his attorney on April 11, 1988, containing the factual statement that "the 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-consciousness to Mr. Camacho"; (3) Recording Log, Superior Court of Guam, dated April 12, 1988, containing notations of defendant's statement at the time of his guilty plea, that he "took out buckle belt, chased guy, hit one time on road, hit with rock, threw him down, ran back to car"; (4) Judgment dated September 23, 1988, nunc pro tunc May 19, 1988. The government has provided copies of all of the above-referenced documents to defense counsel. b. Identification If the issue is contested, it is anticipated that the government will establish that the defendant is the same Rudy Sablan who pled guilty to this aggravated assault and was sentenced to prison in this case based on fingerprints on file with the Guam Police Department from a 1986 case, 86-16597, and a photo on record with the U.S. Marshal Service in Saipan, provided by Deputy United States Marshal Donald R. Williams, as well as the Pre-Sentence Investigation Report prepared for Case

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No. CR-93-00074, United States District Court, District of Guam, which lists Case 67F87 as an adult conviction (Bates # 091382, ¶ 30). This PSI is included in the records kept by the Federal Bureau of Prisons for federal prisoner Rudy Cabrera Sablan, register number 0074-005. A custodian of records for BOP will testify, if necessary, concerning these records and the register number which follows each inmate once they come into the federal prison system. A fingerprint expert may be called, if necessary, to compare prints currently on file with the U.S. Marshal's Service for Rudy Sablan with those on file in Guam. All documents in possession of the government related to this issue have been provided to defense counsel. 2. NOI ¶: C 1(b) Date of Offense: 1/1/95 Court case/BOP #: Incident Report No. 95001/ United States Penitentiary, Lompoc, California The evidence offered to establish this conduct as indicative of future dangerousness of Rudy Sablan may include the following: a. Testimony of Jay FranklinVought, an inmate at Lompoc at the time of this incident. Mr. Vought sent a letter to the U.S. Attorney's Office in December of 2000 in which he discussed the Lompoc assault, among other things. With the letter he enclosed a picture of Rudy Sablan which Rudy had given him. It is anticipated that Vought's testimony will include the following, which is quoted directly from his initial letter: 6

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"In early 1995, as I recall January, I witnessed Rudy (Sablan) and two other Pacific Family members, "Rock", and the other I don't recall his name, preforme (sic) an attempted murder on another inmate named John Cruz who was from Guam. This attack happened in Lompoc's movie theater. As I was getting microwave popcorn made which is towards the back left corner of the theater, Sablan came from my right, went down the second or third isle (sic) in the center section (rear) pulling out a knife. "Rock" and the other Islander were seated on either side of JohnCruz. As Sablan made his move, they grabbed Cruz by his arms and held him as Sablan attempted to cut Cruz's throat. He also reached over Cruz and attempted to slash or stab Cruz in the chest. Sablan and the others left the area as soon as possible, leaving the theater. The alarm went off and the theater was locked down. After that, each inmate was required to leave the theater one at a time and give their name and inmate number as they left. I believe that Sablan was locked up for investigation of this assault by prison officials but was later let out. During July of 1995, Sablan and I were cell mates in upper I unit, D-Range, Cell 1. where he told me about the hit and its reason. The problem with Cruz went back to Guam. According to Sablan, Cruz had killed a woman over there who was related to or had connections to the Pacific Family. Enclosed is a picture Rudy Sablan gave me while we were celled together in Upper I Unit. The handwriting is his. He used to call me Jake because he is a big western fan and called me Big Jake from the movie."

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All reports of interview and any written statements for Mr. Vought regarding this incident known to the government have been provided to defense counsel. b. Testimony of Lt. Ray J. Garcia, Officer Michael Ryan, and Officer Roger Saw It is anticipated that Lt. Garcia's, Officer Ryan's and Officer Saw's testimony would include the following: At about 5:50 p.m. inmate Cruz was assaulted in the auditorium during a "movie movement." He was stabbed four times about his face and body and was taken to the prison hospital for treatment. A search of the auditorium resulted in Officer Saw's recovery of a 9 ½ inch long, 3/4 inch wide sharpened instrument from under a seat in the auditorium after Officer Ryan followed blood spots to the location. Officer Garcia took a photograph of the weapon. All reports prepared by these officers with regard to this incident known to the government have been provided to defense counsel. c. Testimony of Officer R. Welsh It is anticipated that Officer Welsh's testimony would include the following: He reviewed the facility videotape and determined that Rudy and one other inmate were acting strangely around the time of the assault. He suspected that they were possibly involved. He examined the times noted on institutional passes Rudy Sablan had received

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that evening. Sablan received a pass to the auditorium with the time noted as 5:26 p.m. He entered and then left again at 5:39 p.m. to return to his unit. He received another pass to the auditorium with the time noted as 5:45 p.m. and returned at a noted time of 6:09 p.m. According to Officer Welsh, the videotapes showed Sablan returning to M Unit from the auditorium at 5:41 p.m., turning his pass into Officer D. Paul. Sablan then immediately requested another pass to the auditorium and left at 5:42 p.m. wearing a brown institution jacket. The tape showed him returning to M Unit at 5:49 p.m. wearing only the white shirt he had on under the jacket. All reports prepared by Officer Welsh known to the government regarding this incident have been provided to defense counsel. d. Testimony of Officer D. Paul It is anticipated that Officer Paul's testimony would include the following: At 5:29 p.m. Rudy Sablan requested a pass to the movie. At 5:45 p.m., he returned to M Unit, gave the pass back and requested to return to the movie. Officer Paul asked him why and Sablan said he thought the movie might be boring but wanted to go back to finish it. At approximately 5:55 p.m., Sablan returned. Officer Paul asked him why he had returned again, but Sablan did not answer. Sablan was not wearing a jacket and seemed to be out of breath. At 5:57 p.m. Officer Paul received a radio transmission about what had happened in the movie theater. At 9:50 p.m., inmate Zeigler asked Officer Paul

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about a jacket of his that Sablan had. Zeigler said that Sablan had "bought" an x-large jacket from him prior to the 4:00 p.m. count. All reports prepared by Officer Paul known to the government regarding this incident have been provided to defense counsel. e. Testimony of Physician's Assistant Grethel Pagaduan It is anticipated that PA Pagaduan's testimony would include the following: PA Pagaduan assessed the victim's injuries. He suffered cuts to his lower lip, forehead, below his left eyelid, his left chest, and in his right ear. All reports prepared by P.A. Pagaduan known to the government regarding this incident have been provided to defense counsel. f. Photos of weapon, scene of assault, and victim; institutional passes referenced above. Joyce Lane-Lewis, Investigative Support Technician at USP, Lompoc, California may testify as custodian of records for this evidence. Reports regarding this evidence and copies of each item have been provided to defense counsel. g. Videotape The government has obtained a copy of the Lompoc surveillance videotape to which Officer Welsh referred in his report through Joyce Lane-Lewis and has provided a copy to defense counsel. The government may offer the videotape into evidence in conjunction with Officer Welsh's testimony.

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3. Date of Offense: 2/15/96 Court case/BOP #: United States District Court, Northern District of Georgia, Criminal Case No. 1:96-CR 364-CC Conviction: Assault with a Deadly Weapon on Kyung Hwan Mun The evidence offered to establish this conduct as indicative of future dangerousness of Rudy Sablan may include the following: a. Certified Copies of Court Documents: (1) Transcript of Jury Verdict dated February 7, 1997; (2) Verdict Form dated February 7, 1997; (3) Judgment dated April 22, 1997. Copies of all these documents have been provided to defense counsel. b. Transcript of Trial Proceedings. The defendant was convicted following a jury trial in this case. The government has obtained transcripts of the trial and those have been provided to defense counsel. The government may offer the following testimony via the transcripts: (1) Testimony of Kyung Mun, the victim of the assault, transcript pages 112 through 179 ; (2) Testimony of Roosevelt Wims, an inmate who witnessed the assault, transcript pages 61-100; (3) Testimony of Dr. Duru Sakhrani, physician's assistant at the United States Penitentiary (USP), at Atlanta, Georgia, transcript pages 224-230, regarding the 11

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injuries suffered by the victim; (4) Testimony of Dr. Victor Joseph Weiss, a private physician who performed surgery on the victim related to his injuries from this assault, transcript pages 233-240; (5) Testimony of Safety Specialist Joseph Beswick, an officer with USP, Atlanta, Georgia who saw the victim bleeding and recovered a sharpened instrument and a glove from a trash can on the recreation yard, transcript pages 241-252; (6) Testimony of Camille Gladney, an officer at USP, Atlanta, Georgia, who recovered clothing from a trash can, including a white tee shirt bearing the name Sablan, R. and register number 000740005, transcript pages 253-260. (7) Testimony of Lt. Charlie Hill, BOP officer at the USP-Atlanta, Georgia, transcript pages 274-282. c. Testimony of Kyung Kwan Mun, victim of the assault The victim, Kyung Kwan Mun, is a citizen of Korea and was believed to have returned to Korea following his incarceration in the United States. The government has received information, however, that as of August 21, 2006 Mr. Mun was being detained by the Bureau of Immigration and Customs Enforcement (ICE), in Seattle, Washington. The government will attempt to have him testify in person at the penalty trial of Rudy Sablan.

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c. Testimony of Lt. Charlie Hill, BOP officer at the United States Penitentiary in Atlanta, Georgia at the time of this incident, may testify regarding his interview of Kyung Kwan Mun. It is anticipated that Lt. Hill's testimony will include the following: Mun told Officer Hill that Rudy Sablan approached him about joining the "Asian Family" gang. Mun told Sablan he did not want to get involved and Sablan did not like it. Mun was placed in the "hole" and when he came out, about two weeks prior to the assault, Mun was again approached by Sablan. They were talking on the recreation yard about Mun joining the Asian Family gang again when Sablan suddenly pulled an ice-pick type shank from one of his gloves and lunged at Mun. Rudy Sablan stabbed Mun in the back of the neck. Mun tried to fight him off, but Mun was stabbed several times. Copies of all reports known to the government prepared by Lt. Hill related to this incident have been provided to defense counsel. d. Testimony of Safety Specialist Joseph Beswick, an officer with BOP, Atlanta at the time. It is anticipated that Officer Beswick's live testimony may be offered in addition to or in lieu of the transcript of his trial testimony and would include the following: Officer Beswick recovered evidence from the trash on the recreation yard including a twelve inch rod with red stains which had been fashioned into a weapon.

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A copy of all reports known to the government prepared by Officer Beswick regarding this incident have been provided to defense counsel. e. Photos from BOP of Rudy Sablan and of the injuries to the victim The government attempted to obtain a copy of a surveillance video referenced in reports regarding this incident but has been unable to do so. According to testimony at the trial, transcript pages 305-308, only one surveillance camera was operating at the time of the incident. That camera was some distance away from the location of the assault, and the videotape was not helpful in identifying anyone on the yard. Copies of all photos related to this incident known to the government have been provided to defense counsel. f. Identification If the issue is contested, identification of Rudy Sablan can be established through the trial transcripts, through the photos from the incident, through his register number with BOP, and through paperwork offered through a custodian of records from BOP showing that the prisoner with Rudy Sablan's register number is serving a sentence on the Atlanta conviction. Photographs associated with that register number clearly depict the Rudy Sablan who stands charged in this capital case. All reports and documents regarding this incident known to the government, including the BOP file for Rudy Sablan, have been provided to defense counsel.

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4. NOI ¶: C 1(d) Date of Offense: 6/9/97 Court case/BOP #: Incident Report No. 511205/ USP, Florence, Colorado Violation: Serious Assault of Alan Carinio The evidence offered to establish this conduct as indicative of future dangerousness of Rudy Sablan may include the following: a. Testimony of Correctional Counselor Jack Wilner It is anticipated that Mr. Wilner's testimony would include the following: Officers saw inmate Alan Carinio at about 7:00 p.m. in USP, Florence. He was bleeding from the right side of his head. Carinio handed Wilner a sharpened metal rod, about 9 inches in length with a taped handle. Carinio was taken to the prison hospital where he was treated for a laceration to his right ear, a puncture wound to the left side of his back, and abrasions and bruises on the right side of his chest, neck, and face. All reports prepared by Mr. Wilner known to the government regarding this incident have been provided to defense counsel. b. Testimony of Alan Carinio It is anticipated that Mr. Carinio's testimony will include the following: In an interview at the time of the assault, Carinio identified Rudy Sablan and two other inmates as his assailants. Carinio, Sablan, and one other inmate were together in Carinio's cell playing cards. The remaining inmate was standing at the cell door. Sablan and the two other inmates then jumped on Carinio and forced him to the cell floor. 15

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Carinio heard a pop and realized he had been stabbed in the ear. He did not see which inmate did the stabbing, and the knife remained in his ear. Sablan and the two other inmates continued to stomp and kick him while he lay on the floor. During the struggle, Carinio was able to pull the knife from his ear and swing it at the other inmates. They tried to get the knife from him but could not. Sablan and the other two inmates ran out of the cell and Carinio followed with the knife in his pocket. In a recent interview at San Quentin State Prison in San Francisco, California, Carinio recalled the following: as the card game progressed, there was a general prison alert advising of a "ten minute movement." Carinio stood up and prepared to leave the cell, but Rudy Sablan bent down low to the ground behind Carinio. Then Mike Palacios pushed Carinio and Carinio fell backwards, over Rudy. Now Carinio recalls that it was Palacios who attempted to stab him, striking him in the ear and that Carinio was able to grab the knife out of Palacio's hand. Carinio stated that after he grabbed the knife, he was able to stab Palacios in the leg. All reports of interviews of Mr. Carinio known to the government regarding this incident have been provided to defense counsel. c. Testimony of Ed Felz, SIS It is anticipated that Mr. Felz' testimony will include the following: Mr. Felz interviewed Feliciano Mariur on June 16, 1997. Mariur was identified by

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Carinio as one of the inmates involved in the assault. Mariur stated that he came to the cell where the others were playing cards after looking around for some wine. He stated that he saw Rudy Sablan pull a weapon from his pocket and stab Carinio. Mariur received a puncture wound in his left ankle during the incident. Felz also attempted to interview Rudy Sablan and Michael Palacios, the other inmate besides Mariur and Sablan identified by Carinio as an assailant. Palacios refused to comment. Sablan denied being in the unit where the assault occurred. All reports prepared by SIS Felz known to the government regarding this incident have been provided to defense counsel. d. Testimony of Physician's Assistant Virgillo D. Camagay regarding the injuries suffered by Carinio. All reports prepared by P.A. Camagay known to the government regarding this incident have been provided to defense counsel. 5. NOI ¶: C 1(e) Date of Offense: 12/3/97 Court case/BOP #: Incident Report No. 544140/ USP, Florence, Colorado Violation: Possession of a weapon The evidence offered to establish this conduct as indicative of future dangerousness of Rudy Sablan may include the following: a. Testimony of Counselor R. Andert It is anticipated that Counselor Andert's testimony would include the following: 17

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At 8:45 a.m. while performing a sanitation inspection at USP, Florence, Andert removed a towel from the light above the sink in cell 213 (Delta B Unit) and saw that someone had tampered with the light. He searched the back panel of the light and found a 13 inch long, 2 inch wide piece of metal which had been cut down on one side to make an edge. The opposite side had been scratched in a pattern which looked like a future cut to finish the weapon. Cell 213 was assigned to Rudy Sablan and one other inmate. All reports prepared by Mr. Andert regarding this incident known to the government have been provided to defense counsel. b. Testimony of Lt H. Clifton Gray It is anticipated that Lt. Gray's testimony would include the following: Gray interviewed Rudy Sablan concerning the weapon found in his cell. Sablan stated that the weapon was his and that he had "bought" the metal. All reports prepared by Lt. Gray regarding this incident known to the government have been provided to defense counsel. c. Photo of weapon Defense counsel have been provided with a photo of the weapon from the BOP file. 6. NOI ¶: C 1(f) Date of Offense: 6/13/98 Court case/BOP #: Incident Report No. 600457/ USP, Florence, Colorado Violation: Serious Assault on Michael Menzer

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The evidence offered to establish this conduct as indicative of future dangerousness of Rudy Sablan may include the following: a. Testimony of Senior Officer Specialist Thomas Martinez It is anticipated that Officer Martinez' testimony would include the following: Officer Martinez responded to a duress alarm in cell 110 at 10:15 p.m. on A-1 range in the Special Housing Unit (SHU) of USP, Florence. He saw inmate Menzer lying face down on a mattress on the floor, his feet and hands tied with thin strips of torn sheets while Rudy Sablan and another inmate stood over him. Menzer was bleeding profusely from the head and face. All reports prepared by SOS Martinez regarding this incident known to the government have been provided to defense counsel. b. Testimony of Disciplinary Hearing Officer Lee Green and/or BOP reports regarding statements of Rudy Sablan. Sablan admitted "boxing" the victim "up a bit." He said he used his fists and feet to assault the inmate. All reports regarding this incident, including statements by the defendant, have been provided to defense counsel. c. Testimony of Physician's Assistant Virgilio Camagay regarding the injuries to inmate Menzer.

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All reports prepared by P.A. Camagay regarding this incident known to the government have been provided to defense counsel. d. Photos of Rudy Sablan, injuries to the victim, and the victim's bloody clothing from the incident Custodian of records from BOP may be called to introduce this evidence. Copies of each item have been provided to defense counsel. 7. NOI ¶: C 1(g) Date of Offense: 1/29/99 Court case/BOP #: Incident Report No. 654106/ USP, Florence, Colorado Violation: Fighting The evidence offered to establish this conduct as indicative of future dangerousness of Rudy Sablan may include the following: a. Testimony of Senior Officer Christopher Jensen It is anticipated that Officer Jensen's testimony would include the following: Officer Jensen heard yelling coming from Range A-1 in the SHU of USP Florence about 4:20 p.m. He looked into cell A-114 and saw inmates Couch and Hemmings in an argument and ordered them to separate. Rudy Sablan tried to separate them, but Couch hit Sablan in the face with a closed fist. Sablan and Hennings then began hitting Couch in the face with their fists and kicked and stomped him in the face and head. Sablan refused the order to separate and had to be physically separated.

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All reports prepared by Officer Jensen regarding this incident known to the government have been provided to defense counsel. b. Testimony of Physician's Assistant Marvelyn O. Guiang regarding injuries suffered by Couch. All reports prepared by P.A. Guiang regarding this incident known to the government have been provided to defense counsel. c. Photos of the victim and defendant from the incident. All photos regarding this incident from the BOP file have been provided to defense counsel. 8. NOI ¶: C 1(h) Date of Offense: 2/9/01 Court case/BOP #: FCI, Englewood, Colorado-no incident report number The evidence offered to establish this conduct as indicative of future dangerousness of Rudy Sablan may include the following: Testimony of Senior Officer S. Brown It is anticipated that Officer Brown's testimony will include the following:. Officer Brown conducted a routine shakedown of Rudy Sablan's cell at FCI Englewood while Sablan was in court on February 9, 2001. Officer Brown confiscated writing pens and matchbook strikers from his cell, neither of which are allowed in the cells in the SHU. When Sablan returned from court, he said to Brown, "Hey you, you are

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the motherfucker that shook my room down this morning, aren't you?" Officer Brown told him yes and explained why he had removed the items. Before he could finish, Rudy Sablan struck the window of his cell with his closed fist. Then he began to tear up paper items such as institutional paperwork and holiday cards and throw them into the hallway of the unit. The officer asked him why he had thrown the trash into the hall. Rudy Sablan told him to get the fuck away from his window. He then told the officer, "look man, I am usually quiet in here, but I will fucking hurt you if I have to." CONCLUSION The above amended proffer represents the government's best estimate at this time of the evidence it intends to offer to support the non-statutory aggravating factor of future dangerousness. Additional evidence not listed above may become known to the government between the date of this amended proffer and the Phase III evidentiary hearing or the trial. The government may, therefore, seek leave of the Court to further supplement this proffer as necessary prior to that hearing or the trial.

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Respectfully submitted this 15 th day of September, 2006, TROY A. EID United States Attorney

BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17th 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 17th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 15th day of September 2006, I electronically filed the foregoing GOVERNMENT'S AMENDED PROFFER OF PENALTY PHASE EVIDENCE IN SUPPORT OF NON-STATUTORY AGGRAVATING FACTOR OF FUTURE DANGEROUSNESS OF RUDY CABRERA SABLAN 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] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected] Dean Steven Neuwirth [email protected] s/ Dorothy Burwell DOROTHY BURWELL Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0400 E-mail address: [email protected] Attorneys for Rudy Sablan Forrest W. Lewis [email protected] Donald R. Knight [email protected]

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