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 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 William J. Leone, United States Attorney for the District of Colorado, and through Brenda K. Taylor and Philip A. Brimmer, Assistant U.S. Attorneys, anticipates that it will offer the evidence outlined below during the penalty phase of the trial of Rudy Sablan in support of the non-statutory aggravating factor of future dangerousness. The allegation of future dangerousness will also be supported by evidence admitted during the guilt phase on the capital charge and the remaining statutory aggravator of the heinous or depraved manner of committing the offense. The following proffer of previous convictions and other conduct relevant to prove the future dangerousness of Rudy Sablan is set out by the paragraph number referenced in

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the proposed Third Amended Notice of Intent to Seek the Death Penalty (NOI) in addition to the date and any court case number or Bureau of Prisons (BOP) Incident Report number. 1. NOI ¶: C 1(a) (Proposed Third Amended NOI) 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 "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";

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(4) Judgment dated September 23, 1988, nunc pro tunc May 19, 1988. 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 record in Guam for Rudy Sablan and prison records from Guam which have been requested but not yet received. 2. NOI ¶: C 1(b) (Proposed Third Amended NOI) 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. b. Transcript of Trial Proceedings. Transcripts exist and have been ordered. They are expected to arrive within the next few days. Copies will be provided to defense counsel upon receipt, and with permission of the Court, the government will submit a supplemental proffer specifying the part of the record upon which it will rely.

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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. Lt. Hill interviewed the inmate victim, Kyung Kwan Mun. It is believed that Mr. Mun currently resides in Korea, but the government has been unable to contact him as yet. 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." 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. d. Testimony of Safety Specialist Joseph Beswick, an officer with BOP, Atlanta at the time. It is anticipated that Officer Beswick's testimony 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. e. Photos from BOP of the injuries to the victim and of Rudy Sablan. There also was a video taken of the recreation yard at the time of the assault. It is unknown as yet if it still exists. The government has requested it and will provide a copy to defense

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counsel upon receipt. f. Identification If the issue is contested, it is anticipated that the government will establish that the defendant is the same Rudy Sablan who was found guilty of this assault with a deadly weapon and was sentenced to prison in this case based on records from BOP. 3. NOI ¶: C 1(c) (Proposed Third Amended Notice of Intent) 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: "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 5

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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." b. Testimony of Lt. Ray J. Garcia, Officer Ryan, and Officer 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 institution hospital for treatment.

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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. 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 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. d. Testimony of Officer D. Paul It is anticipated that Officer Paul's testimony would include the following:

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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 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. e. Testimony of Physician's Assistant G. 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. f. Photos of weapon, scene of assault, and victim; institutional passes referenced above. g. Videotape The government is attempting to obtain the videotape from Lompoc and will provide a copy of it to defense counsel upon receipt. 4. NOI ¶: C 1(d) (Proposed Third Amended NOI) Date of Offense: 6/9/97 Court case/BOP #: Incident Report No. 511205/ USP, Florence, Colorado Violation: Serious Assault of Alan Carinio

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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 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 metal sharpened rod, about 9 inches in length with a taped handle. Carinio was taken to the institution hospital where he was treated for a lacerated wound 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. 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. 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

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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 Palacios hand. Carinio stated that after he grabbed the knife, he was able to stab Palacios in the leg. 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 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.

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d. Testimony of Physician's Assistant Virgillo D. Camagay regarding the injuries suffered by Carinio. 5. NOI ¶: C 1(e) (Proposed Third Amended NOI) 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: At 8:45 a.m. while performing a sanitation inspection in 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. b. Testimony of Lt H. Cllifton 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. c. Photo of weapon

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6. NOI ¶: C 1(f) (Proposed Third Amended NOI) Date of Offense: 6/13/98 Court case/BOP #: Incident Report No. 600457/ USP, Florence, Colorado Violation: Serious Assault on Michael Menzer 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. b. Rudy Sablan statement to Disciplinary Hearing Officer Lee Green Sablan admitted "boxing" the victim "up a bit." He said he used his fists and feet to assault the inmate. c. Testimony of Physician's Assistant Virgilio Camagay regarding the injuries to inmate Menzer. 7. NOI ¶: C 1(g) (Proposed Third Amended NOI) Date of Offense: 1/29/99 Court case/BOP #: Incident Report No. 654106/ USP, Florence, Colorado Violation: Fighting

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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 C. 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. b. Testimony of Physician's Assistant Marvelyn O. Guiang regarding injuries suffered by Couch. 8. NOI ¶: C 1(h) (Proposed Third Amended NOI) 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

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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 "Hey you, you are 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 used a closed fist to strike the window of his cell. 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 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. As indicated above, we have ordered transcripts of trial testimony in United States District Court Case No. 1:96CR364-CC, a conviction which is alleged in the proposed Third Amended NOI as proof of future dangerousness. We should receive those transcripts within the next few days. Additional evidence not listed above may also become available between the date of the proffer and the Phase III evidentiary hearing or the trial. The government reserves the right, therefore, to seek leave of the Court to supplement this proffer as necessary prior to that hearing or the trial.

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Respectfully submitted this 24 th day of July, 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 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 24th day of July, 2006, I electronically filed the foregoing GOVERNMENT'S 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]

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/ 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]

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