Free Response - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-000531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant.
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William Sablan's Response to the Government's Amended Proffer of Penalty Phase Evidence ________________________________________________________________________ Defendant-Appellant William Sablan, through undersigned court-appointed counsel, submits the following response to the government's Amended Proffer Of Penalty Phase Evidence, which was filed on August 28, 2006. (Document 1884). 1. The amended proffer correctly reflects that on 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)." (Amended Proffer at 2). The language of this order is straightforward and easily understood. Nevertheless, the government has utilized its amended proffer to add witnesses and evidence in support of its alleged statutory and nonstatutory factors. These additions do not comport with the Court's order, nor with its
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announced intent to resolve penalty phase evidentiary issues well before trial. (4/11/09 Status Conference Tr. at 4). 2. William incorporates herein by reference his August 7, 2006, "Objections to the Government's July 24, 2006, Proffer Based On Its Incompleteness" (Document 1862). That pleading sets out the history, beginning on February 13, 2006, of William's requests for the government to provide the Court with its documentary evidence and proffers of testimony relating to the penalty phase. (Document 1682). The government took the position that such an approach was unnecessary; all such issues could be resolved after the guilt/innocence trial. The Court, however, rejected the government's argument by written order on April 13, 2006. (Document 1755). Yet by virtue of its delay in producing evidence and adding to its proffer at this late date, the government is essentially forcing its approach on the Court and defense counsel by default. The government concludes its amended proffer by stating that the proffer represents its "best estimate at this time of the evidence it intends to offer" . . . [but] reserves the right, therefore, to seek leave of the Court to further supplement this proffer as necessary prior to that [Phase III] hearing or the trial." (Amended Proffer at 36) (emphasis added). This statement totally disregards the Court's intent and orders, and it undermines defense counsel's ability to prepare not only for the penalty phase, but also for the guilt/innocence trial. The amended proffer's additions include:

(a) re # 1: "Judgement in Civil Action 85-489, Commonwealth Trial Court, CNMI, dated November 25, 1987" and "Receipts for Payment of Restitution to Vic
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Pangelinan" (Amended Proffer at 5); (b) re # 4: "direct testimony of witness Juan Diaz" (Amended Proffer at 10); and (c) re the prior conviction statutory aggravating factor: "Statement of Filipino Detainee Saddy Camaso Cuarteron" (Amended Proffer at 32); " Statement of Chinese Detainee Cui Xing Hao" (Amended Proffer at 33); and "Statement of Detainee Luis Deleon Guerrero Camacho" (Amended Proffer at 34).1 Heretofore, these documents and witnesses have not been mentioned. The Court cannot allow this to continue; it needs to exert firmer control of the Phase III proceedings if it is to achieve its stated goal of resolving penalty phase issues well before trial. 3. It is apparent from the recent generation of FBI 302's that the government has only recently begun to prepare its case for arguing for a death sentence. Examples of recent 302's include: (a) re # 1: June 6, 2006 interview of Victor Pangelian (b) re # 2: July 3, 2006 interview of George Ramnani

In an attempt to excuse the late additions of these detainees' statements, the government's amended proffer states that "[t]he entire ATF file regarding this case was just recently received by the government and has been provided to defense counsel. All reports prepared and interviews conducted by ATF known to the government are included in that file. The government had previously provided to defense counsel reports prepared by the FBI with regard to this incident." (Amended Proffer at 31) (emphasis added). The ATF file was prepared in 1999! The government's NOI was filed on May 1, 2001. The FBI reports constitute only a small fraction of that file. How is this be acceptable? How can this comport with due process? This new information differs dramatically from an institutional-setting incident occurring at ADX in 2006, for example. The government has had knowledge of these convictions for years. 3

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(c) re # 4: June 13, 2006 interview of Detective Diwain A. Stephen June 16, 2006 interview of Jesses Seman June 16, 2006 interview of Arnold Seman June 20, 2006 interview of Joseph Aldan June 21, 2006 interview of Joaquin Salas (d) re # 5: June 20, 2006 interview of Ralph Rangamar This is unconscionable. William Sablan and his family have been living under the oppressive cloud of a potential death sentence since May 1, 2001, that is, for over five years. Cf. Barker v. Wingo, 407 U.S. 514, 532 (1972) (prejudice to the defendant, a factor in determining whether his constitutional right to speedy trial has been violated, includes his anxiety and concern while awaiting trial). Moreover, these recently generated 302's reflect statements by Saipan police officers regarding additional incidents involving William as well as the officers' opinions about William's mental health. In view of the government's attitude that it can continue to supplement its proffer up until the time of trial, one cannot help but wonder what new information will appear in later supplemented proffers. The government, however, must be limited to its Third Amended NOI and its July 24, 2006 proffer, so the parties and the Court can resolve the evidentiary issues involved therein and can then move on. 4. The amended proffer also reflects that the government has recently received an original fingerprint care from Saipan dated November 15, 1984, which it plans to use in relation to the prior convictions in ## 1 and 2. (Amended Proffer at 6-8). It has also
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received an original fingerprint card for case number 96-235, incident #4. (Amended Proffer at 16). And in relation to the prior conviction statutory aggravating factor, it purports to have BOP records that contain fingerprints. (Amended Proffer at 36). As to all of these prints, the government states that it "may seek" to have these fingerprints compared with known prints associated with the case before this Court. (Amended Proffer at 6-7; 8; 16; 36). William reserves the right to object to the admission of any of the prior convictions unless identity is established, and although the government has provided the defense with xeroxed copies of fingerprint cards, those are useless for purposes of comparison. 5. Further, without seeing the court documents the government actually will be offering into evidence, William reserves the right to object to their admission. 6. William herein incorporates by reference his initial, first supplemental, and second supplemental responses to the government's initial July 24, 2006 proffer. (Documents 1861; 1882; & 1883). For purposes of this pleading, William will address only the additional matters the government's amended proffer presents. 7. The government contends that if the Confrontation Clause of the Sixth Amendment applies to a criminal defendant during the penalty phase of a capital proceeding, it does so only during the "eligibility " portion of the penalty phase. Thereafter, in the selection portion of the penalty phase, the defendant's constitutional right to confront witnesses dissipates. In view of the gravity of the jury's decision, however, ­ be it whether the defendant is "eligible" for death-penalty consideration, or if
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he is, whether he should be "selected" for execution ­ this argument must be rejected as unconstitutional under the Eighth, Fifth, and Sixth Amendments. (a) The Eighth Amendment requires heightened reliability in capital proceedings because as a punishment, death is qualitatively different in its severity and finality than any other form of punishment. Murray v. Giarratano, 492 U.S. 1, 8-9 (1989) (the finality of the death penalty requires a greater degree of reliability when it is imposed); Ford v. Wainwright, 477 U.S. 399, 411 (1986) ("[i]n capital proceedings generally, this Court has demanded that factfinding procedures aspire to a heightened standard of reliability"); Gardner v. Florida, 430 U.S. 349, 357-58 (1977) ("death is a different kind of punishment from any other which may be imposed in this country. . . . [f]rom the point of view of the defendant, it is different in both its severity and its finality [;] [f]rom the point of view of society, the action of the sovereign in taking the life of one of its citizen also differs dramatically from any other legitimate state action"); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) ("[d]eath in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two"). (b) The Fifth Amendment right to due process of law applies to capital sentencing proceedings. See Gardner, 430 U.S. at 358 ("it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause"). Due process requires that the evidence considered be reliable. See

Townsend v. Burke, 334 U.S. 736, 741 (1948) (careless pronouncement of sentence based on extensively and materially false factual bases violated pro se defendant's due process);
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United States v. Beckford, 964 F. Supp. 993, 1002 (E.D.Va. 1997) ("evidence at sentencing is subject to a due process standard of reliability"); United States v. Davis, 912 F. Supp.938, 948 (E.D. La. 1996) (once information is determined to be probative of a relevant nonstatutory aggravating factor, and not unfairly prejudicial, it must also be found to be reliable; reliable is synonymous with accurate). (c) The Sixth Amendment's Confrontation Clause provides the means by which the reliability of evidence is ensured. As the Supreme Court stated in Crawford v. Washington, 541 U.S. 36 (2004): "To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined." Id. at 61. 8. In support of its erroneous position, the government's amended proffer begins by citing United States v. Brown, 441 F.3d 1330 (11th Cir. 2006) for the proposition that hearsay evidence is not prohibited during the penalty phase. (Amended Proffer at 3). As conceded, however, Brown did not decide the question of whether a capital defendant has the right of confrontation during the penalty phase because the statements at issue were nontestimonial under Crawford, and thus the right to confrontation was not triggered. Id.

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at 1361. 2 9. In addition to Brown, the government cites three post-Crawford district court decisions in which the courts concluded that a capital defendant only has a right to confrontation during the eligibility portion of the penalty phase; he has no such right during the selection portion. (a) The first of the three is United States v. Jordan, 357 F. Supp.2d 889 (E.D. Va. 2005). The issue in Jordan was the admission of prior statements of one Brown, who was deceased at the time of the penalty phase and was thus unavailable to testify. The court correctly noted that "[t]he Supreme Court has consistently counseled that `the Constitution places special constraints on the procedures used to convict an

The government continued by discussing a pre-Crawford circuit split. (Amended Proffer at 3). It is correct that in Proffitt v. Wainwright, 685 F. 2d 1227, 1254-55 (11th Cir. 1982), a state habeas appeal, the Eleventh Circuit held that because death is different, the constitutional right to cross-examine witnesses applies to capital sentencing hearings, although it does not in non-capital sentencing hearings. It is incorrect, however, for the government to claim that the Fourth Circuit held "to the contrary" in United States v. Higgs, 353 F.3d 281, 324 (4th Cir. 2003). Higgs was a direct appeal from a federal death sentence. During Higgs' penalty phase, the confession of a co-defendant was admitted through a park police officer to establish that Higgs had thrown the murder weapon into a river. Only on appeal, did Higgs challenge the officer's testimony as violating the Confrontation Clause. The Fourth Circuit therefore reviewed the issue for plain error and found that even if admission of the statements was error, "we cannot say that the error was plain since it even now remains unclear whether the Confrontation Clause applies in this circumstance." Id. at 324. Thus, the case is not a clear holding that a defendant has no right to confrontation in the penalty phase of a capital case. In Szabo v. Walls, 313 F.3d 392, 298 (7th Cir. 2003), a habeas appeal, the Seventh Circuit relied on Williams v. New York, 337 U.S. 241 (1949) to conclude that the Confrontation Clause does not apply to capital sentencing. Its reliance was misplaced, however, because the Supreme Court has repudiated William's underlying premise that there is no constitutional distinction between capital and noncapital sentencing. In any event, the fact that these cases are pre-Crawford undermines their precedential value. 8

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accused of a capital offense and sentence him to death. The finality of the death penalty requires a `greater degree of reliability' when it is imposed". Id. at 901 (quoting Giarratano, 492 U.S. at 8-9). Thereafter, however, the court conflates a defendant's constitutional right to present mitigating evidence for purposes of selection, with the extent to which the government may be permitted to present nonstatutory aggravating evidence for purposes of selection. Without citing any supporting authority, the court concluded that "[u]nlike the eligibility phase, the selection phase is intended to be less structured and less encumbered by strict adherence to the Rules of Evidence. [3] . . . Unless its probative value is substantially outweighed by the danger of unfair prejudice, the jury should `have as much information before it as possible when it makes the sentencing decision.'" Id. at 903 (quoting Gregg v. Georgia, 428 U.S. 153, 203-04 (1976). As additional support, the court cited Jurek v. Texas, 428 U.S. 262 (1976) and Williams v. New York, 337 U.S. 241 (1949). There is no support for the court's conclusion that the selection portion of the penalty phase is to be less structured. The process cannot be allowed to disintegrate into prosecutorial mud-slinging, for as the court noted in Davis, 912 F. Supp. at 943: To carefully define the statutory aggravating factors, but then allow wholesale introduction of nonstatutory aggravating information, would defeat the goal of guided and measurable

The FDPA's evidentiary provision draws no distinction between the eligibility and the selection phases of the sentencing hearing. § 3593(c). 9

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jury discretion, and return us to an unconstitutional system, where the death penalty is "wantonly" and "freakishly" imposed. Furthermore, the misuse of Gregg and Jurek as support for unlimited aggravation evidence has been addressed in William's Motion For Reconsideration Of The Court's Ruling Allowing The Government To Present Evidence Of Underlying Conduct Relating To Prior Convictions (Document 1863) and is incorporated herein by reference. See also Tuilaepa v. California, 512 U.S. 967, 972 (1994) (requirement of individualized sentencing "is met when the jury can consider relevant mitigating evidence of the character and record of the defendant and the circumstances of the crime"); Blystone v. Pennsylvania, 494 U.S. 299, 307 (1990) ("requirement of individualized sentencing in capital cases is satisfied by allowing the jury to consider all relevant mitigating evidence"). Thus, as stated in United States v. Perez, 2004 WL 935260 (D. Conn. April 29, 2004), the "Supreme Court decisions both before and after Zant have made clear that the constitutional requirement of individualized decision-making is met if a jury is able to consider any aspect of the defendant's history or circumstances of the crime in mitigation." Id. at *8 (emphasis in original). "But Zant in no way suggests that a Court must allow a jury to consider any non-statutory aggravating factor named by the Government, regardless of it relevance to the question of why the defendant should be sentenced to death, or regardless of reliability of the evidence offered in support." Id. 4

In Zant v. Stephens, 462 U.S. 862 (1983), the Supreme Court concluded that consideration of nonstatutory aggravating circumstances for selection purposes was not 10

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(b) The other two cases cited by the government, United States v. Bodkins, 2005 WL 1118158 (W.D. Va. May 11, 2005) and United States v. Johnson, 378 F. Supp.2d 1051 (N.D. Iowa, 2005), relied upon Jordan, and concluded that testimonial hearsay evidence offered during the eligibility portion of the penalty phase would have to meet the requirements of Crawford ­ unavailability of the witness and prior opportunity to cross-examine. The selection portion would be conducted separately and Crawford would not apply. (c) The 1949 Supreme Court of Williams that was cited in Jordan, has also been cited by the government in the instant case, in two contexts: the first relates to the use of unadjudicated criminal conduct in a capital sentencing hearing; the second relates to William's language that a sentencing judge should have "the fullest information possible concerning the defendant's life and characteristics." Id. at 247. Two aspects of Williams must be noted, however: (i) the main holding of the case was that a criminal defendant's right to due process was not violated by the sentencing court's reliance on information contained in a probation department's presentencing report, (a reliance which is still commonplace and is probably why the case has never expressly been overruled); and (ii) that although urged to do so, the Williams Court refused to recognize a constitutional distinction between capital and non-capital sentencing hearings. Id. at 251. Since Williams, however, the Supreme Court has recognized that death is different and

unconstitutional per se. 11

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capital sentencing proceedings must satisfy the requirements of due process. Gardner, 430 U.S. at 357. See Williams v. Lynaugh, 484 U.S. 935, 938 (Marshall, J., joined by Brennan, J. dissenting from denial of certiorari) (in Gardner, "it was recognized that the view expressed in Williams no longer prevails, and that the death penalty is qualitatively different from other punishments [and] we have invalidated a number of procedural rules that called into question the reliability of the sentencing determination"). In sum, Crawford should be applied throughout the penalty phase. Heightened reliability is required in capital proceedings because death is different. Confrontation and cross-examination is the means by which the reliability of the evidence is ensured. 10. As to the non-institutional and institutional-setting incidents listed in the government's amended proffer, William responds as follows: Amended Proffer # 1 (NOI ¶: C 1 (a) The government's amended proffer includes at least two court documents not previously noted in its NOI or its July 24, 2006 proffer. The documents include a "Judgement in Civil Action 85-489, Commonwealth Trial Court, CNMI, dated November 25, 1987" and "Receipts for Payment of Restitution to Vic Pangelinan." (Amended Proffer at 5). In view of the fact that the NOI was filed over five years ago, the addition of these documents is untimely. Moreover because they relate to civil litigation, they are not sufficiently relevant and reliable for jury consideration in its life and death decision. Amended Proffer # 3 (NOI ¶: C 1 (c) The government's initial proffer proposed preparing transcripts from the audio
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tapes made of this 1985 trial for use at the penalty phase in the instant case. (Proffer at 6). It's amended proffer discloses that "these audio tapes cannot be located." (Amended Proffer at 9). CNMI's loss of this court record is a perfect example of why William has urged this Court to exclude all evidence of convictions that were obtained in its local courts; CNMI local courts are simply different and less reliable than our federal and state courts. It also illustrates why Congress limited the statutory aggravating factors relating to prior convictions to federal offenses, § 3592(c)(1), (12),(13) &(15), or federal and state offenses, § 3592(c)(2), (3), (4) & (10). ( See Wm DP-20 and Reply; Documents 1687 & 1767). Amended Proffer # 4 (NOI ¶: C a (d) As with #3 above, the government's initial proffer proposed preparing transcripts of the trial testimony of victims Kiyoshi Nemoto and Ono Yasou. 5 ( Proffer at 7). Its amended proffer states that it has received 16 audiotapes of the trial proceedings from the Clerk of the CNMI Superior Court and has had those tapes transcribed, resulting in 26 transcripts. (Amended Proffer at 10). What the amended proffer fails to reflects, however, is the fact that the government has conceded to the defense that five of the tapes received from the CNMI are "either blank or inaudible." (Copy of August 25, 2006 letter attached.) As a result, the transcripts do not reflect the trial in its entirety. Thus, although

It is not clear that the name "Ono Yasou" is correct because the government later refers to him as "Yasou Ono." 13

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subsection (b) of # 4 of the amended proffer indicates that its evidence may include "b. Audio Tapes and Transcripts of trial testimony of victims Kioyoshi Nemoto and Yasuo Ono", that is impossible. (Amended Proffer at 10). There are gaps in the testimony transcribed. Such a gap exists in the direct testimony of Yasou Ono. The existing record reflects his direct testimony as including only three questions: "Where do you live?" "What's your job?" "Were you in Saipan in September of 1996?" (Transcript of 4408A3 / 4409A-1 at 19). The next transcript seemingly begins with his cross-examination. (Transcript of 4409A-2).6 Not only are chunks of testimony missing, the transcripts reflect a multitude of "inaudible" entries, including all references to bench conferences. Furthermore, the record as is reflects numerous troubling aspects relating to the reliability of the trial. For example: (a) The jury consisted of only six members. (Transcript of 4408A-3 / 4409A-1 at 6). (b) The prosecutor was allowed to file an amended information on the day of trial. (Transcript of 4410A-2 at 2). (c) Because the victims were Japanese, an interpreter was used to translate their testimony. Nevertheless, the record fails to reflect the identity, expertise, or method

Other gaps include: transcript of 4410A-2 is not continuous from 4410A-1; transcript of 4410A-3 is not continuous from 4410A-2; transcript of 4412A-2 is not continuous from 4412A1; transcript of 4413A-2 is not continuous from 4413A-1; and government concedes that 4413A3 is blank or inaudible; and transcript of 4414A-2 is not continuous from 4414A-1. 14

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of selection of the interpreter. (Transcript of 4408A-3 / 4409A-1 at 18; 4410A-2 at 12). (d) The Saipan police orchestrated a highly suggestive show-up to obtain identification of William Sablan as the robber. After telling the victims that a suspect had been arrested and their property had been recovered, Detective Joaquin Salas had the victims come to the police department to make a report and identify their property. Meanwhile, William, who was in handcuffs, was placed in the midst of a group of detectives in a location not ordinarily used for processing, but a location by which the victims had to pass to meet with Detective Salas and identify their property. After they walked past William, the detective asked Mr. Nemoto if he had recognized anyone. Mr. Nemoto identified William as the robber based upon his eyes (the robber had worn a hooded mask with one or two eye-holes cut out) and his slender legs (the robber had been wearing shorts). Upon learning the circumstances of this identification, the defense moved for a mistrial, but the court ruled that it was untimely. (Transcript of 4410A-3 / 4411A-1, Side B). (e) Because the identity of the robber was an issue at trial, latent fingerprints were submitted to a crime lab in Guam, Saipan not having one of its own. Although the Guam lab had the latents for an entire year, they were never processed and the trial proceeded without a comparison having been done. In its amended proffer, the government states that it may offer the "direct testimony of witness Juan Diaz (Transcript of 4412-3 / 4413 A-1, pages 10-24)." (Amended Proffer at 10). Juan Diaz was not mentioned in the government's NOI or its
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initial proffer. Thus, proffering his testimony now is untimely. Moreover, it does not pertain to William's behavior at the time of his arrest because Diaz's involvement in the investigation occurred the day after William was arrested. In addition to the testimony of Diaz, the government proffers the testimony of six Saipan police officers, who were involved in the investigation of the case, for purposes of testifying to William's aggressive behavior towards officers at the time of arrest. (Proffer at 8-10; Amended Proffer at 12-15). It is noteworthy that of the six, only two actually testified at the trial. Their trial testimony demonstrates that in its eagerness to execute, the government is now placing a highly embellished spin on William's behavior at the time. At trial, Detective Aldan testified that Officer Solmo, who had gotten into the water, called to William to come out of a crevice in the rocky coastline. "When he came out he was calling Officer Solmo to fight him." (Transcript of 4412A-2 at 22). In response, Solmo swam to the boat to get pepper mace. "Then [Deputy Police Commissioner] Leo Tenora came in with his boat and was talking to Mr. Sablan. . . . After Leo Tenora talked to him, he rode in Tenora's boat." Id. 7 At trial, Detective Salas testified: "I wasn't present during ­ during all of the
Tenora, who is not mentioned in either proffer, testified as follows: William was "blurting something out like obscene or bad words." (Transcript of 4414A-1 at 13). "He was argumentative when he was, kind of, like, talking to the fellow officer. (Id. at 14). "I talked to him in vernacular and asked him to calm down. Hey, Bill, calm down. This is your cousin, your friend. Forget about what the officer is saying to you. Just come close to me, get on my boat, and we'll try and rectify this once we get on the beach. . . . After a while . . . he did." (Id. ). William said he was turtle hunting. Id. 16
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commotion that was happening at Lao Lao Bay. I was still heading back there when they said they already forgot [sic] the suspect and all of that." (Transcript of 4413A-2 at 1819). Thus, the government's proffer of six officers testimony about William's "aggressive behavior" is actually much ado about nothing. Some of it, however, is frighteningly suspect as to its credibility. The record of the trial reflects that although the Japanese victims claimed that the robber had brandished a knife, the refreshment cart operator, who saw the robbery, said the robber only threw a stick. Other golfers saw the robber, who was carrying a clear plastic bag, run from the course to the ocean, but did not see him carrying a knife. Moreover, a knife was never recovered, although the golf course and the crevice and surrounding water were searched and the victim's property was recovered. Yet, in both of its proffers, the government states that Detective Stephens, who was in Tenora's boat, will testify that he "recognized William clinging to the rocks in the cave, holding a knife." (Proffer at 8; Amended Proffer at 12). Given the fact that the Saipan prosecutor was trying to prove an armed robbery and an assault with a dangerous weapon, i.e., a knife, wouldn't Detective Stephen's testimony have been crucial to the case? Yet, he was not called to testify. And the reason, no doubt, was that the selfreports he made in 1996 say nothing about his seeing William with a knife. The same is true of the 1996 reports of Arnold Seman; they contain nothing about his seeing a knife. Yet when interviewed on June 16, 2006, by the FBI for purposes of
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this case, he miraculously recalls seeing William swimming after Officer Somol with a knife. How convenient for the government that neither Stephens nor Seman testified at the trial. That way there will be no sworn testimony with which to impeach them at the penalty phase. Their recent fabrications, however, are just that. Perhaps that is why the government, at least in regards to Arnold Seman, has not included his "knife observation" in its proffer of his testimony. In its amended proffer, the government states that it also anticipates using recent, as well as former, interviews of Mr. Ono and Mr. Nemoto as well as their trial testimony. (Amended Proffer at 16). The interviews, be they conducted in 1996 by Saipan police or in 2006 by the FBI, and the prior trial testimony constitute testimonial statements and Crawford thus applies. Additionally, the admission of Mr. Ono's trial testimony would be fundamentally unfair because the record of it is incomplete. Further, it would be unduly cumulative to have Mr. Nemoto's trial testimony, plus his statement to Saipan police in 1996, and his statement to FBI agents in 2006 admitted into evidence. Amended Proffer # 5 (NOI ¶: C 1 (e) In its amended proffer, the governments states that all reports of Officer Rangamar and all reports of Officer Matteo have been provided to defense counsel. (Amended Proffer at 18). After reviewing the discovery provided, counsel can locate only one June 20, 2006 FBI interview of Officer Rangamar and cannot locate any reports by Officer Matteo.
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Statutory Aggravating Factor - Prior Conviction of Violent Felony Involving a Firearm As noted in paragraph 2(c) above, the amended proffer includes the statements of three detainees of the Central Male Detention Facility of the Department of Public Safety in Saipan. Even under the government's caselaw, these statements cannot be admitted in support of the statutory aggravating factor because the finding of that factor is part of the eligibility portion of the penalty phase. Crawford therefore applies, and the government can only admit them upon establishing that the declarants are unavailable and William had a prior opportunity to cross-examine them. If the Court adopts the government's argument and bifurcates the eligibility and selection portions, the Court will be looking at the following scenario: (1) during the eligibility portion, the government will present its documentary evidence relating to the prior conviction as well as the testimony of Major Ramon Camacho and Officer Chris Guerrero as to their personal knowledge of the underlying facts of the conviction; (2) then the jury will retire to deliberate and determine if the statutory aggravating factor, prior violent conviction involving a firearm, has been proven beyond a reasonable doubt; (3) if it determines the factor has been proven, then William will be eligible for death-penalty consideration; (4) the jury will return to the courtroom for the selection portion, including the government's case on future dangerousness; (5) if Crawford is not applied, the government will try to again introduce evidence about the statutory aggravating factor ­ prior conviction of violent felony involving a firearm ­ this time having ATF SA Gil
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Bartosh testify to the testimonial hearsay statements of the detainees. The Court needs to consider whether this is how it wants to conduct the penalty phase, rather than having all the evidence presented at once, with Crawford applicable to all testimonial hearsay statements, and then have the jury retire for deliberations only once to make its gatekeeping, eligibility, and selection findings according to step-by-step instructions provided by the Court. The defense reiterates its position that all of the incidents the government has listed in support of its nonstatutory aggravating factor future dangerousness are insufficiently relevant and reliable for jury consideration. If, however, the Court concludes that some of the prior convictions are relevant and reliable, the defense submits that the best way to avoid the myriad of evidentiary issues the amended proffer presents is to limit the evidence, including that related to the statutory aggravating factor prior conviction, to the fact of conviction. Dated: September 11, 2006 Respectfully submitted, Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202
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Nathan Chambers Chambers, Dansky & Mulvahill 1601Blake Street, Suite 300 Denver, CO 80202 303-825-2222

Case 1:00-cr-00531-WYD

Document 1903

Filed 09/11/2006

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303-825-3050 Counsel for William Sablan CERTIFICATE OF SERVICE I hereby certify that on September 11, 2006 I electronically filed the foregoing William Sablan's Response to the Government's Amended Proffer of Penalty Phase Evidence with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] By: /s/Susan L. Foreman

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