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 Case No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, 2. RUDY CABRERA SABLAN, Defendants.

GOVERNMENT'S AMENDED CONSOLIDATED RESPONSE TO DEFENDANTS' MOTIONS TO STRIKE INCIDENTS LISTED IN SUPPORT OF "FUTURE DANGEROUSNESS" NON-STATUTORY AGGRAVATING FACTOR (Wm DP-15, 16, 17, 18 and R-53)

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, responds as follows to motions filed by both defendants seeking to strike incidents listed in support of the government's allegation of "future dangerousness" as a non-statutory aggravating factor in its Amended Notice of Intent to Seek Death Penalty (NOI) filed as to each defendant. I. INTRODUCTION The government has filed an Amended Notice of Intent to Seek the Death Penalty

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(NOI) as to each defendant. In addition to the statutory aggravating factors alleged pursuant to 18 U.S.C. §3592(c), the government has also alleged one non-statutory aggravating factor: that both defendants are "likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others." NOI at 5. The bases for this allegation of "future dangerousness" include the capital offense currently charged and the statutory aggravators listed in the NOIs. In addition, the government lists specific instances of conduct, institutional and non-institutional, adjudicated and unadjudicated, to show a continuing pattern of violent conduct, threats of violence to others, low rehabilitative potential and lack of remorse for each defendant. Id. In their Phase III motions regarding future dangerousness, the defendants present similar issues, and so the government submits a consolidated response. Those issues are summarized as follows: 1. Is the government's evidence of future dangerousness restricted to incidents which have occurred only within an institution? 2. If the government offers evidence of unadjudicated conduct as a basis for its future dangerousness allegation, must that conduct be criminal? 3. Are the specific incidents listed by the government sufficiently relevant and reliable to be submitted to the jury? 4. Should the Court evaluate the relevancy, reliability, and probative value versus

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unfair prejudicial impact of the evidence offered by the government on the issue of future dangerousness before a jury has even convicted the defendants of a capital offense? II. ARGUMENT A. Relevancy of Non-Institutional Incidents in Determining Future Dangerousness (William Sablan's Motion to Strike Non-Institutional Incidents From Nonstatutory Aggravating Factor of Future Dangerousness [Wm DP-17]( Docket # 1684) Rudy Sablan's Motion in Limine Regarding Convictions and Incidents Alleged in Support of Non-Statutory Aggravating Factor of Future Dangerousness (R-53) (Phase III) (Docket # 1701)) Both defendants argue that future dangerousness in this case must be determined based on the danger presented by these defendants in an institutional setting, and that the non-institutional incidents alleged by the government would be irrelevant to that determination. With regard to Rudy Sablan, the government no longer intends to rely upon any of the non-institutional incidents listed in the NOI at paragraph C 1(a-c). It therefore has no objection to their being stricken by the Court. With regard to William Sablan, the government no longer intends to rely on the incident described at paragraph C 1(d) of the NOI, the assault of Mateo Norita, and therefore has no objection to its being stricken by the Court. The government does intend, however, to offer evidence of the remaining noninstitutional incidents listed in the NOI for William Sablan, and it disagrees that these incidents are irrelevant to the issue of his future dangerousness. The question to be answered by the jury on this issue is whether the defendant is likely to commit criminal

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acts of violence in the future which would be a continuing and serious threat to the lives and safety of others. Simmons v. South Carolina, 512 U.S. 154, 162-63 (1994). Prior conduct, whether inside or outside of prison, is the only available predictor of the future behavior of a defendant, and courts have always utilized such information in fashioning criminal sentences. "It is, of course, not easy to predict future behavior. The fact that such a determination is difficult, however, does not mean that it cannot be made. Indeed, prediction of future criminal conduct is an essential element in many of the decisions rendered throughout our criminal justice system." Jured v. Texas, 428 U.S. 262, 274-76 (1976); United States v. Nguyen, 928 F. Supp. 1525, 1542 (D. Kan. 1996). To limit the evidence of future dangerousness to conduct which occurred only inside prison denies the jury a complete picture of the defendant. "Proof of commission of other acts of violence is arguably more relevant and probative than any other type of aggravating evidence supporting imposition of the death penalty. To withhold it from the jury creates a significant gap in the basis for their decision and paints a much rosier picture of the defendant than is true." United States v. Davis, 912 F. Supp. 938, 948 (E.D. Louisiana 1996) (addressing the issue of whether unadjudicated criminal conduct is admissible in the penalty phase of a capital case). An examination of the non-institutional violent conduct of William Sablan included in the NOI, in combination with his violent conduct inside prison, reveals a continuous pattern of violent behavior which culminated in the brutal murder of Joey

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Estrella and which makes him a tremendous risk for continued violence against inmates and prison staff. The listed incidents are as follows:

1. Criminal Cases 84-68 & 84-69: The defendant committed two burglary/assaults within two days of each other in 1984. On August 17, 1984, William Sablan and two juveniles burglarized a residence in Saipan and assaulted the resident with a knife. The defendant pled guilty to assault and battery. On August 19, 1984 William Sablan and two juveniles burglarized a business in Saipan. During the burglary, they bound a store employee's feet and hands, punched and kicked him in the face and body, causing serious bodily injury, and robbed him of cash and property. The defendant pled guilty to burglary. For these two cases, William Sablan was sentenced to serve five years and one year concurrent in prison. In February of 1985 the court suspended all but six months of the prison sentence and put the defendant on probation. In April, 1985 a petition to revoke his probation was filed and later withdrawn. 2. Criminal Case No. 85-49: One month later, on May 20, 1985, William Sablan robbed a group of Japanese tourists at knife and gun point. After a jury trial, he was convicted of armed robbery and use of a knife but acquitted of assault with a dangerous weapon. He was sentenced to six years in prison. 3. Criminal Case No. 90-84: On April 22,1990, William Sablan and two others

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assaulted Leonardo Begonia. The defendant was charged with felony aggravated assault and ultimately pled guilty to misdemeanor assault. 4. Criminal Case No. 96-235: On September 29, 1996, William Sablan again robbed two Japanese people at knife point. The defendant was convicted at trial of robbery but acquitted of assault with a deadly weapon. The defendant was sentenced on February 25, 1998 to ten years in prison, five years suspended. Approximately one year later, on March 9, 1999, William Sablan led a prison riot at the Central Male Detention Facility of the Department of Public Safety in Saipan. He took Chinese inmates as hostages, and threatened to kill hostages and police officers with a gun. This incident resulted in his pleas of guilty in United States District Court for the Northern Mariana Islands to charges of Hostage Taking (18 U.S.C. §§1203 and 2), Felon in Possession of a Firearm (18 U.S.C. §922 (g)(1)), and Transfer of a Firearm Knowing It Will Be Used to Commit Crime of Violence, to wit: Assault with a Dangerous Weapon, 18 U.S.C. § 922 (h). These convictions form the basis for one of the statutory aggravating factors alleged in the NOI pursuant to 18 U.S.C. §3592(c). (NOI-William Sablan, paragraph B.1.) William Sablan was sentenced to serve 252 months in federal prison for these crimes. Seven months later, on October 10, 1999, the defendant killed and disemboweled Joey Jesus Estrella, a man he had known for only a few days, at the United States Penitentiary in Florence, Colorado.

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If the defendants are convicted of first degree murder, it is appropriate that the jury be given a complete picture of their violent histories in considering their punishment. These non-institutional incidents of William Sablan are relevant to the danger he presents in the future. WHEREFORE, the government respectfully requests that defendant William Sablan's Motion to Strike Non-Institutional Incidents From Nonstatutory Aggravating Factor of Future Dangerousness [Wm DP-17, Docket # 1684] be denied except as to paragraph C. 1.(d). B. Unadjudicated Conduct Offered in Support of Future Dangerousness Need Not Be Criminal. (William Sablan's Motion To Strike Certain Institutional Setting Incidents From Future Dangerousness On The Grounds That The Conduct Alleged Is Not Criminal Conduct [Wm DP-18] ( Docket # 1685) The government has alleged several instances of conduct in prison as indicative of future dangerousness in a prison setting. William Sablan has continuously challenged, resisted and threatened prison staff, has broken out of restraints, has threatened officers with a razor blade, and during transport to a hospital outside the institution attempted to remove his restraints and threatened to assault staff. The defendant contends that certain of these instances must be stricken from the NOI because they do not constitute criminal conduct. The government disagrees. Contrary to the argument of the defendant, there is no requirement that unadjudicated conduct offered in support of future dangerousness be criminal. The cases cited by the

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defendant, United States v. Gilbert, 120 F. Supp. 2d 147 (D. Mass. 2000) and United States v. Friend, 92 F.Supp.2d 534 (E.D. Va. 2000), are clearly distinguishable and "stand only for the proposition that a non-statutory aggravating factor alleging prior misconduct

must describe an independent crime." United States v. Fell, 372 F. Supp.2d 753, 764 (D. Vermont 2005) (emphasis in original). "There is no requirement that non-statutory aggravating factors be independent crimes. No such limitation is found in the FDPA. Indeed many of the statutory aggravators are not independent crimes. See 18 U.S.C. §§ 3592(c)(5)-(9), (11, (14). Thus, it is reasonable to conclude that non-statutory aggravating factors need not be independent crimes either." Id. Neither Gilbert nor

Friend addressed conduct offered in support of future dangerousness. Part of the future dangerousness allegation in the NOI is that the defendant has threatened others with violence, has demonstrated low rehabilitative potential, and has demonstrated lack of remorse. District courts have consistently upheld sub-categories of evidence cited by the government as probative of the future dangerousness factor. United States v. Spivey, 958 F. Supp. 1523, 1534-35 (D. N.M. 1997) ("specific threats of violence, low rehabilitative potential and lack of remorse" are relevant "in deciding which offenders should be sentenced to death and which should not."); United States v. Davis, 912 F. Supp. 938 (E.D. La. 1996) (lack of remorse and low rehabilitative potential found admissible as proof of future dangerousness).

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One of the cases relied upon by the defendant on another issue, United States v. O'Driscoll, 250 F. Supp. 2d 432, 442 (M.D. Pa. 2002), approved the use by the prosecution of incidents where the defendant refused to "cuff up" and use-of-force teams

had to be used to move him as probative of future dangerousness, because it demonstrated that, "given the opportunity," the defendant "would assault correctional staff." Id. The incidents cited for William Sablan are very similar to these and are likewise probative of future dangerousness to prison staff and inmates. WHEREFORE, the government respectfully requests that the Court deny William Sablan's Motion To Strike Certain Institutional Setting Incidents From Future Dangerousness On The Grounds That The Conduct Alleged Is Not Criminal Conduct [Wm DP-18, Docket # 1685]. C. The Specific Incidents Listed by the Government Are Sufficiently Relevant and Reliable to be Submitted to the Jury. (William Sablan's Motion to Strike Incidents Listed In Support Of The Government's Nonstatutory Aggravating Factor "Future Dangerousness" On The Grounds They Are Insufficiently Relevant And Reliable To Submit To The Jury [Wm DP-16]( Docket # 1683) Rudy Sablan's Motion in Limine Regarding Convictions and Incidents Alleged in Support of Non-Statutory Aggravating Factor of Future Dangerousness (R-53) (Phase III) (Docket # 1701)) 1. Relevancy of Evidence of Future Dangerousness of William Sablan a. Non-Institutional Incidents Defendant William Sablan argues that the Court should strike all incidents listed in

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the NOI in support of the non-statutory aggravator, future dangerousness, with the exception of the charged capital offense and the charged statutory aggravating factor, "previous conviction of violent felony involving firearm." He contends that the additional incidents are "insufficiently relevant and/or reliable, are more unfairly prejudicial than probative, and their cumulative presentation will confuse and mislead the jury as to the true focus of its inquiry." Motion at §6. The government disagrees. The true focus of the jury's inquiry with regard to future dangerousness should include the actual conduct of the defendant, regardless of whether, in the case of adjudicated conduct, the conviction was for a felony or misdemeanor and what sentence the defendant received. The additional incidents listed in the NOI for William Sablan include some of his criminal convictions prior to the murder of Joey Estrella (see paragraph A above) and threatening and violent conduct within prison before and after the murder. A review of William Sablan's prior convictions reveals that his history is remarkable for incidents of repetitive violence and for the minimal sentences received from local courts, even for felony convictions. The non-statutory aggravating factor the jury will be asked to consider is future dangerousness, and each incident listed in support of that factor is but a piece of the proof of that factor. Only the factor itself need be proved beyond a reasonable doubt. "...[E]ach particular piece of information need not

be sufficient, by itself, to prove the alleged aggravating factor beyond a reasonable

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doubt." United States v. Chong, 98 F. Supp.2d 1110, 1117 (D. Hawaii 1999). Based on this analysis, the Court in Chong denied the defendant's objections and refused to preclude proof of "mere threats, words and conduct, that, according to Defendant, is not serious enough to warrant imposition of the death penalty." Id. See also United States v. Jordan, 357 F. Supp.2d 889, 896-97 (E.D. Va. 2005) (admissibility of defendant's criminal record). The defendant specifically complains that the government should be precluded from, first of all, presenting evidence that he was convicted of misdemeanor assaults, because the level of conviction is not sufficiently serious. It is the conduct, not the ultimate level of the crime of conviction which the jury should have the opportunity to evaluate in a penalty hearing. As explained above in paragraph B, the actual conduct related to one of the misdemeanor assaults, Criminal Case No. 84-69, was an assault with a knife during a residential burglary. If reliable evidence of this conduct can be presented by the government, surely this is exactly the type of information which is most relevant for the jury to hear. Citing United States v. Gilbert, 120 F. Supp.2d at 155, the defendant also argues that his burglary conviction in Criminal Case Number 84-68, though a felony, is neither serious enough nor sufficiently relevant to dangerousness in prison to be considered by the jury. The Gilbert court actually found that the attempted breaking and entering into the home of the defendant's extramarital lover of insufficient gravity to be relevant as a

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freestanding non-statutory aggravator. In terms of future dangerousness, Gilbert only addresses the relevance of breaking and entering to danger in a prison setting. In contrast, the burglary conviction of William Sablan in Criminal Case Number 84-68 involved underlying assaultive conduct, and that conduct is relevant and probative evidence of future dangerousness, even in a prison setting. "The Federal Death Penalty Act expressly provides that `[t]he government may present any information relevant to an aggravating factor for which notice has been provided' subject only to modified Rule 403 considerations of unfair prejudice, confusing the issues, or misleading the jury." United States v. Chong, 98 F. Supp.2d at 1120. (citing 18 U.S.C. §3593 (c))(emphasis added in original). Further, the Tenth Circuit has recently held that non-violent crimes are appropriate as evidence of future dangerousness: Mr. Bolz next argues that a nonviolent crime, such as the alleged burglary, is insufficient to support a finding of a probability of future criminal acts of violence. While it is true that under Oklahoma law, a nonviolent crime standing alone (emphasis in original) cannot be the basis for finding the continuing threat aggravator, (citations omitted) neither Oklahoma nor the United States Supreme Court has ever prohibited a jury from considering the defendant's nonviolent offenses in conjunction with other factors when determining whether the defendant poses a future risk to society. Boltz v. Mullin, 415 F.3d 1215, 1231 (10 th Cir. 2005) (emphasis added). The defendant further complains that his robbery convictions in Criminal Case Numbers 85-49 and 96-235, one of which, 85-49, includes a conviction for Use of a Dangerous Weapon, are also irrelevant to a consideration of future dangerousness, because he was acquitted of assault with the dangerous weapon. Again, it is the conduct 12

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which is relevant and which provides important information on the issue of future dangerousness. Defendant's challenge to NOI paragraph C.1. (d) (Criminal Case Numbers 90-27 and 90-30) is moot, because the government no longer intends to rely on that conduct in support of future dangerousness. b. Institutional Incidents The defendant challenges all of the incidents which occurred while he has been in prison on the bases that most represent unadjudicated conduct, some do not constitute criminal conduct, and most did not result in harm to a human being. The government is permitted to offer evidence of unadjudicated conduct (see Government Response to William Sablan's Motion to Prohibit the Government From Introducing Evidence of Unadjudicated Criminal Conduct During the Penalty Phase [Wm DP-24]), and is not limited to conduct which constitutes a crime when offered to support future dangerousness. (See Paragraph B above). Further, the prison conduct of resisting officers, brandishing a razor blade, and breaking free from restraints, while not resulting in serious injury to anyone, are surely relevant in showing that, given the opportunity, William Sablan continues to present a danger to prison staff and to other inmates. See United States v. O'Driscoll, 250 F. Supp. 2d at 442. The specific incidents alleged in the NOI, the government's current intention regarding their use, and their significance with regard to future dangerousness are:

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(1) (September 5, 1985) Possession of a hacksaw blade as a prisoner in Saipan The government no longer seeks to rely on this incident and has no objection to its being stricken from the NOI. (2) (February 8, 1997) Conviction for misdemeanor assault on a police officer in a detention facility in Saipan. As explained in the NOI, the defendant refused to return to his cell, struggled with officers, and cut one officer with a piece of metal he had hidden in his hand. The injury, although minor, reflects the danger the defendant presented in an institutional setting even prior to the murder of Joey Estrella and prior to allegations of serious mental problems. (3) (November 18, 1999) Defendant pounded on the window of the cell door, breaking the glass and refused to cooperate with officers. Defendant was placed in four-point restraints and broke free from the metal handcuffs on both of his hands. It is not so much the breaking of the glass and refusal to cooperate which is relevant, although it certainly shows a level of anger which is of concern, but rather the fact that the defendant was able and willing to break free from his restraints, conduct which defendant's motion fails to mention. This behavior is highly relevant to determining the danger this defendant presents in an institutional setting. (4) (December 5, 1999) Defendant verbally threatened an officer, and, brandishing a razor blade, threatened to kill the officer and cut anyone who opened his cell door or the food slot in his door. He repeatedly refused to relinquish the

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weapon or allow staff to enter the cell and had to be physically removed by a fiveman correctional officer team. The defendant's motion, incredibly, notes that the razor blade was not a prohibited item. Since this is the same weapon allegedly used to murder Joey Estrella, its legality or illegality is hardly the point. This behavior is highly relevant and should not be kept from a jury in its determination of future dangerousness. (5) (June 9, 2000) Defendant spit on and threatened to kill prison staff. The government no longer seeks to rely on this incident and has no objection to its being stricken from the NOI. (6) (January 19, 2001) Defendant detached a metal desk from his cell wall and beat the desk against the cell door; he also threatened to beat and kill another inmate. This incident gives insight into the degree of anger experienced by the defendant and is therefore relevant to his future danger in a prison setting. (7) (February 9, 2001) Defendant became angry at staff, saying "You had better respect me, because I am not like the rest of these guys in here and I will fuck you up, you motherfucker." Contrary to defendant's contention, quoting United States v. Davis, 912 F. Supp. at 945, these are not just "threatening words and warped bravado" for William Sablan. These words, even without the profanity, provide insight into the defendant's view of

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himself and the importance he places upon being respected. This is highly consistent with statements made in connection with the murder of Joey Estrella and is relevant and probative of future dangerousness. (8) (February 12, 2001) Defendant threw hot coffee on prison staff, resisted removal from his cell, and broke his right arm free from soft restraints. When officers came in to secure him with hard restraints, he again physically resisted and attempted to bite the officers. The defendant contends this conduct should be stricken because no one was seriously hurt. That is not the point. This is highly dangerous behavior in a prison setting and again reveals the defendant's willingness to take advantage of opportunities to assault and resist officers. (9) (March 24, 2001) Defendant became aggressive with officers while being escorted to a cell during cell rotation. When he was inside the cell and his hand restraints were removed, he reached through the bars, grabbed an officer by the shirt, and pulled him into the bars. As a result, Defendant was placed in a cell with plexiglass over the bar front. Defendant also challenges the use of this incident because no one was injured. As do the incidents described above, this incident reflects a continuing willingness to seize an opportunity and is particularly relevant to danger in a prison setting.

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(10) (May 29, 2001) While being transported to a community hospital outside the prison, the defendant removed his seat belt and tried to remove his restraints. He also threatened to assault staff and had to be returned to the institution with emergency lights and sirens. The defendant admitted his actions and stated he was upset because he felt he had been disrespected. The defendant again challenges this incident on the basis that no one was injured. And yet this is an incident outside the prison and in the local community where the repercussions could have been extremely serious. The incident also provides further insight into William Sablan's reaction to perceived disrespect­also a factor in the murder of Joey Estrella based on the statements of the defendant at that time. The defendant also challenges all of these incidents on the basis that they occurred because he was not being adequately treated for mental problems. This explanation does not affect the admissibility of these incidents. Rather, this is information which the defendant is free to present to explain his behavior. It is important, however, that the Court allow the jury to have all of the information which is relevant to the issue of future dangerousness in making its determination in any penalty phase. 2. Relevancy of Evidence of Future Dangerousness of Rudy Sablan a. Non-Institutional Incidents As indicated in paragraph A above, the government no longer seeks to rely on these incidents and has no objection to their being stricken from the NOI.

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b. Institutional Incidents The government has alleged five incidents in support of the future dangerousness factor in the NOI for Rudy Sablan. Three of these involved serious assaults on other inmates; one involved the possession of a "shank" and one involved a threat. There should be no question that each of these is relevant to a determination of future dangerousness in prison, since they all took place in prison. The specific allegations are: (1) (January 1, 1995) At USP-Lompoc, the defendant and two others were implicated in an assault on another inmate. A nine-inch shank was used to slash the victim's throat and stab his chest. No charges were brought because the victim refused to provide any information. This is unadjudicated conduct which should be allowed as long as the government is able to present reliable evidence of the defendant's involvement. The defendant challenges the reliability of the testimony of Jay Vought. It is anticipated that Mr. Vought, who was at Lompoc at the time, would testify that he witnessed the defendant slash the victim's throat and stab him in the chest while two other inmates held the victim down. This is surely information to which a jury is entitled on the issue of future dangerousness, and the defendant is free to cross-examine Mr. Vought. (2) (June 9, 1997) Serious Assault on inmate Alan Carinio. Defendant was one of three inmates involved. Carinio was stabbed in the ear with a knife, then stomped and kicked as he lay on the floor.

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Defendant complains that his role in this attack cannot be proven and has not previously been proven beyond a reasonable doubt. Since unadjudicated conduct is admissible in the penalty phase of a capital case, whether this incident has been previously proven is not relevant. And as evidence of the non-statutory aggravating factor of future dangerousness, rather than a stand-alone non-statutory aggravator, it need not be proven beyond a reasonable doubt See, Barrientes v. Johnson, 221 F.3d 741,762 (5 th Cir. 2000); Turner v. Johnson, 106 F.3d 1178, 1188-89 (5 th Cir. 1997); Harris v. Johnson, 81 F.3d 535, 541 (5 th Cir. 1996); United States v. Edelin, 134 F. Supp.2d 59, 76, n.18 (D.D.C. 2001); United States v. Cooper, 91 F. Supp.2d 90, 108, n.12 (D.D.C. 2000); United States v. Beckford, 964 F. Supp. 993, 996-97 (E.D. Va. 1997). The BOP records regarding this incident reflect that the victim identified the defendant as one of three people who attacked him, that he reported that all three kicked and stomped him and one, whom he could not identify, stabbed him in the ear. One of the other assailants gave a statement that he had witnessed the defendant pull a weapon from his pocket and stab the victim. Clearly, this incident is relevant to a determination of future dangerousness. (3) (December 3, 1997) Defendant had a thirteen inch long by two inch wide sharpened piece of metal in his cell which he admitted was his. He made a statement that he was going to fix it up and keep it.

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Defendant challenges the use of this incident on the basis that it was subject only to BOP administrative procedures and therefore fails to meet constitutional requirements for admissibility. This incident is also clearly relevant to a determination of future dangerousness. (4) (June 13, 1998) Defendant admitted assaulting one of his cellmates using his hands and feet. According to the defendant, when the victim was unconscious, the defendant tied the victim's hands and feet with torn strips of sheets. The victim was found bleeding profusely from his face and head and was found to have the following injuries: contusions to his temporal, auricular, nasal area; swelling to his upper and lower lips, both wrists, left side of face; bruising to left upper arm and upper left shoulder; and abrasions to left mid back area. The defendant again complains that this incident should not be admissible because it was subject only to BOP administrative procedures without due process or adequate proof. Although he also complains that his role in the offense is not adequately defined, the reports indicate that the defendant admitted the assault, explaining that he did it because the victim was talking about molesting someone. For all the reasons discussed above, this incident is also relevant to the issue of future dangerousness.

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(5) (January 29, 1999) Defendant was observed by a corrections officer trying to break up a fight between two other inmates. When the defendant was hit, he then punched, kicked, and stomped the inmate who hit him. The defendant refused to stop until physically separated by staff. This incident is informative not only for the level of violence in the defendant's "self-defense" but also for his inability or refusal to stop the beating once it started without being physically pulled away. It, too, is relevant to a determination of future dangerousness. (6) (February 9, 2001) Defendant became angry with staff for searching his cell and said, "Look man, I am usually quiet in here, but I will fucking hurt you if I have to." The defendant argues, citing Gilbert, that this was nothing but talk and that it lacks the necessary gravity required. What Gilbert actually says is that "for a nonstatutory aggravating factor to be "relevant' within the meaning of the statute, it must be sufficiently relevant to the consideration of who should live and who should die." 120 F. Supp.2d at 150. The government does not offer this incident as an aggravating factor, but rather as a piece of the conduct and character which comprise the charged factor of future dangerousness. See United States v. Jordan, 357 F. Supp. 2d 889, 896 (E.D. Va. 2005); United States v. Chong, 98 F. Supp.2d 1110, 1117 (D. Hawaii 1999).

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3. Reliability of Incidents Alleged in Support of Future Dangerousness a. William Sablan Defendant William Sablan contends that both the reliability and the relevance of the convictions he received prior to 1996 which are alleged in the NOI are compromised by the passage of time. The government disagrees. These convictions show a continuing, uninterrupted pattern for William Sablan which is relevant to a jury's determination of his future dangerousness. The government agrees that the Court must determine the reliability of the alleged incidents prior to any penalty phase in this case, but the age of the convictions should not per se preclude their admission. With regard to the institutional incidents alleged in the NOI, the defendant is not specific as to why he believes these incidents are "unreliable"----he argues that they are trivial in comparison with Rudy Sablan's history and are therefore irrelevant/unreliable on the issue of future dangerousness. For reasons stated above in the detailed discussion of the incidents, the government disagrees. All of the incidents offered in support of this factor are merely pieces of the puzzle. None of them standing alone is sufficient to prove future dangerousness, but all of them taken together reveal a pattern of conduct which should not be kept from the jury. See United States v. Chong, 98 F. Supp.2d at 117. b. Rudy Sablan Defendant Rudy Sablan argues that the incidents listed in support of future dangerousness do not meet the heightened standards of reliability, degree of gravity, and

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relevance required of non-statutory aggravators in a capital case. It is important to remember that the non-statutory aggravator alleged is future dangerousness, not each one of these separate incidents. In this Consolidated Response, the government has provided notice that it is no longer relying on any of the non-institutional incidents originally alleged in the NOI for Rudy Sablan in support of future dangerousness. What remain are three assaults with serious injury, one of which he admitted; one assault revealing the inability of the defendant to stop kicking and stomping another inmate, even in self-defense, until physically restrained by guards, which occurred in the presence of correctional officers; one incident of possessing a thirteen inch long weapon he admitted to fashioning and holding; and one threat to a corrections officer that he would "fucking hurt you if I have to. " All of these incidents occurred in federal prisons within the United States. Their relevance seems obvious to determining future dangerousness, and their reliability should be determined based on the evidence proffered prior to any penalty phase in this case. Despite the fact that the sentencing phase in a capital case is not subject to the limitations imposed by the Federal Rules of Evidence (see 18 U.S.C. §3593(c)), the government does intend to present direct evidence of these incidents which can be appropriately challenged/cross-examined by the defendant. As explained in more detail below, the government disagrees, however, that such proffers and such evidence need be submitted and the admissibility of the proffered evidence be resolved by the Court at this juncture.

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WHEREFORE, the government respectfully requests that the Court either deny without prejudice or defer until the conclusion of the guilt phase of the case William Sablan's Motion To Strike Incidents Listed In Support Of The Government's Nonstatutory Aggravating Factor "Future Dangerousness" On The Grounds They Are Insufficiently Relevant And Reliable To Submit To The Jury [Wm DP-16], Docket # 1683, and Rudy Sablan's Motion in Limine Regarding Allegations of Future Dangerousness (R-54) (Phase III), Docket # 1702. D. The Court Is Not Required To Evaluate the Relevancy, Reliability, and Probative Value Versus Unfair Prejudicial Impact of the Evidence Offered by the Government on the Issue of Future Dangerousness Before a Jury Has Even Convicted the Defendants of a Capital Offense. (William Sablan's Motion For Government Production of Documentary Evidence and Proffers Of Testimony It Intends To Introduce In Support Of Future Dangerousness So The Court Can Evaluate Its Relevancy, Reliability And Its Probative Value Versus Its Unfair Prejudicial Impact [Wm DP-15, Docket # 1682] Rudy Sablan's Motion in Limine Regarding Convictions and Incidents Alleged in Support of Non-Statutory Aggravating Factor of Future Dangerousness (R-53) (Phase III) (Docket # 1701))

Defendant William Sablan requests that the government be ordered to produce documentary evidence and written proffers of the testimony upon which it intends to rely in establishing the incidents listed in support of its nonstatutory aggravating factor of future dangerousness. At the Court's direction, the government previously filed a preliminary response to William Sablan's motion and, with the Court's permission, herein supplements that response. The government does not object to providing the Court and

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the defendants with such information. The defendant incorrectly asserts, however, that the proffer and evidence should be produced prior to trial. Courts which have approved of the same procedure have consistently held that the information need not be produced until after the guilt phase and prior to penalty phase of trial. See, e.g., United States v. Taylor, 316 F. Supp. 2d 730, 742 (N.D. Ind. 2004) (requiring information before penalty phase); United States v. Llera Plaza, 179 F. Supp. 2d 464, 470 (E.D. Penn. 2001) (stating that court will be in a better position to evaluate the relevance and probative value of the evidence after the guilt phase); United States v. Friend, 92 F. Supp.2d 534, 535 (E.D. Va. 2000) (requiring the government to "file a proffer of the evidentiary basis" for a nonstatutory factor that the court later struck from the NOI before the sentencing phase). United States v. Beckford, 964 F. Supp. 993, 1000 and 1004 n. 11 (E.D. Va. 1997) (ordering government to submit a detailed proffer of the evidence of unadjudicated conduct at the end of the guilt phase at trial, if the guilt phase necessitates a penalty phase). See also United States v. Corley, 348 F. Supp. 2d 970, 972 (N.D. Ind. 2004) (summarizing the procedures used to assess the reliability and admissibility of defendant's unadjudicated criminal conduct and noting that a hearing was to be conducted immediately following the return of a guilty verdict on the capital counts.) Because it would be premature to determine before trial whether a sentencing phase will even be necessary, it is logical to conclude that submission of the information the government

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intends to introduce to support the future dangerousness factor not be introduced until it becomes relevant and timely. In addition, as the Court knows, the fact that many of the incidents involving William Sablan in particular took place in the Northern Mariana Islands makes the development of and the production of that evidence much more difficult and costly than in the usual case. All discovery which the government currently has in its possession regarding these incidents has already been provided to the defendants, and the incidents themselves are described in detail in the NOI. There is no mystery as to the nature and factual basis for each of the charged incidents, and with the trial date seven months away, the government should not be required to produce its evidence prior to the scheduled May 2006 hearings. WHEREFORE, as set forth above, the government respectfully requests that the defendant's "Motion for Government Production of Documentary Evidence . . ." be granted in part and denied in part. III. CONCLUSION For all of the foregoing reasons, the government respectfully requests that the Court deny the defendants' motions to strike various incidents alleged by the government in support of the non-statutory factor of future dangerousness, except where noted above. The government further requests that the Court grant defendants' motions that the

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government submit a proffer of its penalty phase evidence, but defer that submission and any hearing on the reliability of such evidence until the defendants have been convicted of a capital offense.

Respectfully submitted this

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 CONSOLIDATED RESPONSE TO DEFENDANTS' MOTIONS TO STRIKE INCIDENTS LISTED IN SUPPORT OF "FUTURE DANGEROUSNESS" NON-STATUTORY AGGRAVATING FACTOR (Wm DP-15, 16, 17, 18 and R-53) 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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