Free Supplement - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 00CR-00531-WYD-01 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

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

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

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received at the time of the filing of the Proffer: 1. Certified copy of Promissory Note dated January 13, 1985 -CNMI Trial Court Case 84-69 (Third Amended NOI (NOI) ¶ C 1 (a)) Audio Tape Recordings of Trial Proceedings -CNMI Trial Court Case 85-49 (NOI ¶ C 1 (c)) -CNMI Superior Court Case 96-235 (NOI ¶ C 1 (d)) Prison Records from Saipan as supplemental identification evidence -CNMI Trial Court Case 84-69 (NOI ¶ C 1 (a)) -CNMI Trial Court Case 84-68 (NOI ¶ C 1 (b)) -CNMI Trial Court Case 85-49 (NOI ¶ C 1 (c)) -CNMI Superior Court Case 96-235 (NOI ¶ C 1 (d)) -CNMI Superior Court Case 97-133 (NOI ¶ C 1 (e))

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At the status hearing held August 8, 2006, the Court ordered the government to file an amended proffer "indicating what evidence has been produced in support of the proffer as well as what evidence has not been produced" (Document 1864). The amended proffer sets out additional information which has been received since the status hearing and clarifies what has been provided to defense counsel. Included with this Amended Proffer is a brief summary of case law regarding evidentiary issues in the penalty phase. II. ADMISSIBILITY OF HEARSAY AND APPLICATION OF THE CONFRONTATION CLAUSE DURING THE PENALTY PHASE Title18 U.S.C. 3593 (c) specifically allows information to be used during a death penalty sentencing hearing regardless of its admissibility under the Federal Rules of Evidence in a criminal trial, unless its probative value is outweighed by the danger of unfair prejudice, confusing the issues or misleading the jury. Therefore, hearsay evidence 2

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is not prohibited during the penalty phase of this capital case. United States v. Brown, 441 F.3d 1330, 1360-61 (11 th Cir. 2006). To the extent that evidence offered is testimonial, the Court must determine whether the Confrontation Clause would be violated by its admission. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that testimonial evidence from an absent witness may be admitted only when the witness is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Id. at 68. The Crawford rule applies only to testimonial evidence. Id. 1 And the Eleventh Circuit, in Brown, did not reach the Crawford issue because the evidence in question was nontestimonial. Prior to Crawford, the Circuit Courts have been in conflict as to whether the Confrontation Clause is applicable to capital sentencing hearings, see Brown, 441 F.3d at 1361, FN 12, ( in the habeas context, the Eleventh Circuit has held that it does apply, id., while the Fourth and Seventh Circuits have held to the contrary). See United States v. Higgs, 353 F.3d 281, 324 (4 th Cir. 2003) and Szabo v. Walls, 313 F.3d 392, 398 (7 th Cir.

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

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2002). United States district courts which have addressed the issue since Crawford, however, have taken a consistent approach. They have bifurcated the penalty phase and have held that the Crawford rule applies only to the eligibility phase (during which the jury determines if the defendant is eligible under the statute to receive the death penalty), and not to the selection phase (during which the jury determines whether a sentence of death should be imposed). Brown, 441 F.3d at 1361, citing United States v. Bodkins, 2005 WL 1118158 (W.D. Va. 2005); United States v. Jordan, 357 F. Supp. 2d 889 (E.D. Va. 2005); United States v. Johnson, 378 F. Supp. 2d 1051 (N.D. Iowa 2005). The proffer and amended proffer in this case concern the non-statutory aggravator of future dangerousness of the defendant. Since evidence of future dangerousness is only considered by the jury after it has determined the defendant to be statutorily death eligible, it is part of the selection phase and the Crawford rule should not restrict the admissibility of evidence. III. AMENDED PROFFER­FUTURE DANGEROUSNESS A. Third Amended NOI ¶¶ C 1 (a) through (l) 1. NOI ¶: C 1(a) ( Third Amended NOI) Date of Offense: 8/17/84 Court case/BOP #: CNMI Trial Court 84-69 Conviction: Assault & Battery The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following:

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a. Certified Copies of Court Documents: Negotiated Plea, signed and dated September 27, 1984; Judgment & Commitment, dated November 16, 1984; and a Promissory Note, dated January 13, 1985, and signed by William Sablan promising to pay Vic Pangelinan $50.00 per month for three years for injuries suffered by Mr. Pangelinan, his wife, and his minor child; Judgment in Civil Action 85-489, Commonwealth Trial Court, CNMI, dated November 25, 1987; Receipts for Payment of Restitution to Vic Pangelinan. The government has recently received a certified copy of the Promissory Note, along with certified copies of the civil judgment and the restitution receipts, and has provided copies of all listed documents to defense counsel. b. Testimony-Victor Pangelian ­The government has provided a copy of the report of an FBI interview of Mr. Pangelian conducted on June 20, 2006 to defense counsel. Mr. Pangelian, the victim, is expected to testify about what happened on the night of the assault. It is anticipated that his testimony will include the following:: Mr. Pangelian had just come home from shopping with his wife and three children and was sitting on the porch alone around 8:00 p.m. when his daughter called to him. A masked man jumped out in front of him with a knife in each hand, telling him in English to kneel down. Pangelian jumped over the railing of the porch to try to pick up some lumber to use as a weapon. He slipped and the man was right behind him. Pangelian got

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up and ran toward his brother's house yelling for help. The man was swinging both knives at Pangelian while Pangelian tried to dodge them. He tried to grab one of the knives but grabbed the blade, which cut his finger. Pangelian let go of the knife and continued to run with the masked man chasing him. When they came to a street light, the man turned and ran away. Pangelian learned from his wife that there were two other masked men in their house who had come into their bedroom. One man held her by the waist while the other held a knife to her throat. The two men dragged her from the bedroom to the front porch. When they saw the third man running away, they ran also. His wife's fingers had been cut. Pangelian and his wife were taken to the hospital where Pangelian stayed overnight in order to have surgery to repair his finger. c. Identification It is anticipated that the government will establish that the

defendant is the same William Sablan who pled guilty to assault and battery and was sentenced to prison in this case based on the fact that a joint plea agreement was used for this case and Case 84-68, referenced below, and concurrent sentences were imposed in the two cases. The victim in Case 84-68 knew William Sablan and identified him as his assailant. The government has also recently received an original fingerprint card for William Sablan from Saipan dated November 15, 1984, a copy of which has been provided to defense counsel. The government may seek to have these fingerprints compared with

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known prints associated with the case before this Court. 2. NOI ¶: C 1(b) (Third Amended NOI) Date of Offense: 8/19/84 Court case/BOP #: CNMI Trial Court 84-68 Conviction: Burglary of Ghanshyam (George) Ramnani The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following: a. Certified Copies of Court Documents: Negotiated Plea, signed and dated September 27, 1984; Judgment & Commitment Order dated November 16, 1984. Copies of these documents have been provided to defense counsel. b. Testimony of Ghanshyam (George) Ramnani­The government has provided a copy of a report of an FBI interview of Mr. Ramnani conducted on July 3, 2006 to defense counsel. Mr. Ramnani was the victim of the burglary. It is anticipated that his testimony will include the following: In August or September of 1984, Ramnani was working in his cousin's clothing and jewelry store, Lovi's Emporium, in Saipan. His cousin had leased the building from the Sablan family, who lived in a residence attached to the back of the store. Ramnani did not have a residence, and he slept in the store each night. One night in August or September of 1984, he closed the store around 9:00 p.m. and went to dinner. He returned about 11:00 p.m. and went to sleep. He awoke to find three males with shotguns robbing the store. He did not hear them come in, but believes that they had 7

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removed the hinges from the back door while he was out to dinner and then were able to enter the store without making any sound. The men pulled the telephone wire from the wall and attempted to strangle him with the wire. He was tied up, hit in the side of the face with the butt of the shotgun and was stabbed in his side with a knife. Ramnani believes that they stabbed him to see if he was still alive. The men stole jewelry and approximately $4,000 to $5,000 in cash. While it was dark in the store during the robbery, Ramnani recognized the voice of one of the men as that of William Sablan, the son of the property owner. He also heard the other men refer to him as "William." The men were speaking Chamorro, a language commonly used in Saipan. Ramnani was very familiar with William Sablan, because Sablan lived behind the store with his family and came into the store frequently. Ramnani knew the other men were friends of Sablan, but could not identify them by name. After the men left, Ramnani called the police and was taken to the hospital. He could not speak for three months due to the injuries caused by the strangulation. Ramnani quit his job at the store shortly after the robbery. After William Sablan was arrested and served jail time, William's brother threatened to kill Ramnani for putting William in jail. c. Identification The government will establish that the defendant is the same William Sablan who pled guilty to burglary and was sentenced to prison in this case based on his identification by the victim.

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The government has also recently received an original fingerprint card for William Sablan from Saipan dated November 15, 1984, a copy of which has been provided to defense counsel. The government may seek to have these fingerprints compared with known prints associated with the case before this Court. 3. NOI ¶: C 1(c) (Third Amended NOI) Date of Offense: 5/20/85 Court case/BOP #: CNMI Trial Court 85-49 Conviction: Armed Robbery with Use of Knife The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following: a. Certified Copy of Court Document: Judgment & Sentence dated August 26, 1985. The defendant was sentenced to six years imprisonment concurrent with cases 84-68 and 84-69. This document has been provided to defense counsel. b. Audio Tape Recordings / Transcripts of Trial Testimony The defendant was convicted following a jury trial held between July 15 and July 18, 1985. Government counsel requested audio tapes of the trial testimony from the Clerk of the CNMI Superior Court. The government has now been advised that these audio tapes cannot be located. c. Identification It is anticipated that the government will establish that the defendant is the same William Sablan who was found guilty of Armed Robbery with Use of a Knife and was sentenced to prison in this case based on the fact that the sentence in this case was imposed concurrently with the sentences in Cases 84-68 and 84-69, 9

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referenced above, and the ability of the victim in case 84-69 to identify the defendant. 4. NOI ¶: C 1(d) (Third Amended NOI) Date of Offense: 9/29/96 Court case/BOP #: CNMI Superior Court 96-235 Conviction: Robbery of Kiyoshi Nemoto and OnoYasuo The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following: a. Certified Copies of Court Documents: Amended Superseding Information dated September 10, 1997; Special Verdict Forms, Count I and Count II, dated December 15, 1997; Special Verdict, Count II, dated December 15, 1997; Judgment of Conviction dated December 17, 1997; and Sentence Order dated February 26, 1998. All of these documents have been provided to defense counsel. b. Audio Tapes and Transcripts of trial testimony of victims Kiyoshi Nemoto and Yasuo Ono. The defendant was convicted in this case following a jury trial. Sixteen audio tape recordings of trial proceedings and sworn testimony have been received from the Clerk of the CNMI Superior Court in Saipan, and these have been professionally transcribed for a total of twenty-six transcripts. Of those, the government may offer the direct testimony of Mr. Nemoto (Transcript of tape 4409A-3/4410A-1, pages 2-13), direct testimony of witness Juan Diaz (Transcript of tape 4412-3/4413A-1, pages 10-24), and direct testimony of Detective Joseph Aldan (Transcript of tape 4412A-2, pages 15-22).

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Theodora SN Decena, Deputy Clerk 3, Office of the Clerk of the Court, CNMI Superior Court, may be called as a witness at the penalty phase to authenticate the tape recordings. The government intends to submit her testimony via affidavit for purposes of the Phase III Evidentiary Hearing scheduled for November. The government also may call a representative of Javernick and Stenstrom, Certified Shorthand Reporters, to testify regarding the preparation of the transcripts. As discussed generally in Section II above, it is the position of the government that the Crawford rule does not apply to the "selection" phase of the sentencing hearing, and that, in any event, these transcripts and tape recordings do not implicate the Crawford rule because the witnesses are unavailable and the defendant had the opportunity to crossexamine them during the trial in Saipan. Copies of the tapes and the transcripts have been provided to defense counsel. c. Testimony of Detective Diwain A. Stephen, Task Force Officer for the Saipan Drug Enforcement Administration office, and formerly an officer with the Department of Public Safety, Saipan, regarding his interview on September 29, 1996 of Yasuo Ono, a Japanese tourist who was a victim of the robbery, and additional investigation Detective Stephen conducted. It is anticipated that his testimony will include the following: Mr. Ono's interview: On September 29, 1996, Mr.Ono and Mr. Kiyoshi Nemoto went to Lao Lao Bay Resort, Saipan, to play golf. While they were playing, a man wearing a mask with a hole

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in it approached Mr. Ono. The man was holding a knife approximately 10 inches long and demanded money. This man chased them, motioning towards them as if he were going to throw the knife. They tried to defend themselves with their golf clubs. The man ran to their golf cart and took their backpacks. When they followed him, he threw a pointed stick at them. Additional Investigation: Det. Stephen, who knew William Sablan prior to 1996, participated in the arrest of William Sablan when he was found hiding in an ocean cave at the base of a cliff below the golf course. Det. Stephen recognized William Sablan clinging to the rocks in the cave, holding a knife. When told he was a suspect in the robbery, William claimed to be fishing and challenged the officers to a fight. Copies of all interview reports and law enforcement reports known to the government regarding this incident, including reports of Detective Stephen and interviews of victim Yasuo Ono, have been provided to defense counsel. d. Testimony of Detective Joaquin Salas, an officer with the Department of Public Safety, Saipan, regarding his interview on September 29, 1996 of Kiyoshi Nemoto, a Japanese tourist who was a victim of the robbery, and Det. Salas' personal observations. It is anticipated that his testimony will include the following: Mr. Nemoto's Interview: On September 29, 1996, Mr. Nemoto was playing golf with Yasuo Ono at the Lao

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Lao golf course in Saipan. Nemoto saw a man wearing a mask with two eye slots approach Mr. Ono and speak to him. He saw the man holding a knife at waist level and pointing it at Ono. Nemoto described the knife to be at least two inches wide and having a nine-inch shiny blade. Nemoto and Ono backed away and the man came toward them still pointing the knife. Nemoto held up his golf club to defend himself and the man motioned as if to throw the knife. Then the man went back to their golf carts and grabbed their backpacks. The man went into the bush but turned and threw a carved stick at them. Nemoto had to dodge out of the way of the stick. When Nemoto went to the police station, he saw a man standing in the center area whom he recognized as the man who had accosted him based on his eyes and his thin legs. Det. Salas' Observations of William Sablan: Det. Salas may also testify regarding his observations of William Sablan's aggressive behavior toward the police when he was confronted. Det. Salas may also testify regarding the recovery of the stolen articles near the location where Sablan was found. Copies of all interview reports and law enforcement reports known to the government regarding this incident, including reports of Detective Salas and interviews of Kiyoshi Nemoto, have been provided to defense counsel. e. Testimony of Jesse Seman, Department of Public Safety, regarding his

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observations of William Sablan's behavior at time of his arrest It is anticipated that his testimony will include the following:. Officer Jesse Seman, who knew William Sablan prior to this incident, was in a boat at the location where Sablan was found, just below the golf course. He recognized Sablan and heard him threaten to drown Boating Safety Officer Jack Somol if Somol tried to catch him. He also heard Sablan repeatedly threaten to kill Somol. Copies of all interviews and law enforcement reports known to the government regarding this incident, including reports of Officer Jesse Seman, have been provided to defense counsel. f. Testimony of Arnold K. Seman, currently Chief of Staff for the Lieutenant Governor, and formerly an officer with the Department of Public Safety in Saipan, regarding his observations of William Sablan during his arrest. It is anticipated that his testimony will include the following: Officer Arnold Seman has known William Sablan since they were both teenagers and in school together. He went to the area where the suspect was reported to have dived off a cliff into the water below the golf course. Arnold Seman recognized William Sablan in the water. Sablan repeatedly threatened to kill officers until Officer Arnold Seman finally convinced him to get into his boat. Copies of all reports and law enforcement interviews known to the government regarding this incident, including reports of Officer Arnold Seman,

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have been provided to defense counsel. g. Testimony of Joseph H. Aldan, formerly a Detective with the Department of Public Safety, Saipan, and lead investigator in this case, regarding his observations of William Sablan at the time he was contacted by officers. It is anticipated that his testimony will include the following: Det. Aldan can provide background information regarding the search for the robber. He observed the efforts by a diver and others in boats to recover the stolen backpacks. He also observed the discovery of William Sablan, whom he immediately recognized, and his aggressive behavior toward the officers. Copies of all interview reports and law enforcement reports known to the government regarding this incident, including reports of Joseph Aldan, have been provided to defense counsel. h. Testimony of Boating Safety Officer Jack Somol, who helped with the search for the robber in the water. He is expected to testify regarding finding Sablan and Sablan's threats to him. Copies of all interview reports and law enforcement reports known to the government regarding this incident, including reports of Officer Somol, have been provided to defense counsel. i. Identification It is anticipated that the government will establish that the defendant is the same William Sablan who was found guilty of Robbery and was

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sentenced to prison in this case based on his identification by witnesses. In addition, Sablan was connected to the robbery based on the recovery of the victims' backpacks and waist pouches from the water near where Sablan was hiding, the recovery of a bundle of currency hidden in a crack in the cave where Sablan was found, and the recovery of other items on the ocean floor. A further basis for identification may be the testimony of Robert J. Steinborn, formerly an Assistant Attorney General in Saipan and the prosecutor at the trial of this matter. The government has also recently received an original fingerprint card for William Sablan from the Department of Public Safety in Saipan for case number 96-235, a copy of which has been provided to defense counsel. The government may seek to have these fingerprints compared with known prints on file in the case before the Court.. j. Recent interviews of the victims. The victims, Mr. Ono and Mr. Nemoto, have been contacted in Japan and have been interviewed. Copies of these interview summaries have been provided to defense counsel. These gentlemen are not willing to come to the United States to testify, although they are willing to be deposed in Japan. As discussed above, it is the government's position that neither the Confrontation Clause nor the Federal Rules of Evidence apply during the selection phase of the penalty hearing. Therefore, the statements of Mr. Ono and Mr. Nemoto, offered through the officers who interviewed them, may be considered by the jury, as well as their sworn trial testimony.

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5. NOI ¶: C 1(e) (Third Amended NOI) Date of Offense: 2/8/97 Court case/BOP #: CNMI Superior Court 97-133 Conviction: Assault and Battery of Joaquin K. Camacho The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following: a. Certified Copies of Court Documents: Plea Agreement dated April 21, 1998 and signed by William Sablan, which includes a stipulation of facts that Officer Joaquin K. Camacho was cut by the defendant with a small piece of metal; Judgment and Commitment Order dated May 12, 1998. Copies of these documents have been provided to defense counsel. b. Testimony of Ralph Rangamar, currently an officer with the Transportation Security Administration (TSA), and formerly a correctional officer with the Department of Public Safety, Saipan, regarding his observation of William Sablan's conduct related to the assault of Officer Joaquin K. Camacho. Officer Camacho is now deceased. It is anticipated that Officer Rangamar's testimony will include the following: The incident began after a cleanup of the cells in the Male Detention Facility in Susupe Village, Saipan, had been conducted and the inmates were being returned to their cells. William Sablan became very verbally abusive to the officers and did not want to return to his cell. Officer Camacho, with assistance from Officer Rangamar, had to physically force Sablan back into the cell. Camacho's finger was cut during the struggle with William Sablan. Sablan continued to be violent, shaking the bars of the cell, yelling 17

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obscenities and threatening to kill the officers when he is released. During the struggle, William Sablan managed to get hold of some keys from Rangamar's pocket Once secured in his cell, Sablan showed the officers that he had the keys. He refused to release them for half an hour. Copies of all interview reports and law enforcement reports known to the government regarding this incident, including reports of Officer Rangamar, have been provided to defense counsel. c. Testimony of Alex Matteo, an Officer with the Department of Public Safety at the time of this incident, regarding his observations of William Sablan's conduct. It is anticipated that his testimony will include information that William Sablan had caused some damage in the facility and that a piece of ironwork was missing from the padlock on a cell. Matteo observed the assault on Officer Joaquin Camacho. William Sablan had the piece of ironwork hidden in his hand and cut Camacho during the struggle at the cell. Copies of all interview reports and law enforcement reports known to the government regarding this incident, including reports of Officer Matteo, have been provided to defense counsel. d. Testimony of Robert J. Steinborn, formerly an Assistant Attorney General in Saipan and the prosecutor in this matter, may be called to identify William Sablan as the person who was convicted in this case.

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6. NOI ¶: C 1(f) (Third Amended NOI) Date of Offense: 11/18/99 Court case/BOP #: BOP Incident Report No.731923/Federal Correctional Institution (FCI)-Florence, Colorado Violation: Destroying/altering a security device The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following: a. Testimony of Senior Officer J.A. White It is anticipated that Officer White's testimony will include the following: William Sablan had been placed in a holding cell at FCI, Florence, Colorado in four-point restraints. While the defendant was so restrained, Officer White watched him break the handcuffs restraining both of his hands. Copies of all interview reports and law enforcement reports known to the government regarding this incident have been provided to defense counsel. 7. NOI ¶: C 1(g) (Third Amended NOI) Date of Offense: 12/5/99 Court case/BOP #: BOP Incident Report No. 736490/ FCI-Florence, Colorado Violation: Threatening another with bodily harm The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following: a. Testimony of Correctional Officer Ron Serna It is anticipated that Officer Serna's testimony will include the following: While taking the count of inmates at FCI, Florence Officer Serna approached William Sablan's cell at 4:05 p.m. and directed Sablan, who was lying face down on his bed, to 19

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stand for count. Sablan refused, saying he was not a child and that he would kill Serna if Serna messed with him. Sablan repeated, "Did you hear me? I'm going to kill you." Copies of all interview reports, law enforcement reports known to the government regarding this incident, including reports of C.O. Serna, have been provided to defense counsel. b. Testimony of Senior Officer Specialist J.J. Masopust regarding his observations of William Sablan during this incident. It is anticipated that his testimony will include the following: Officer Masopust went to William Sablan's cell at approximately 5:00 p.m. in response to an inmate duress alarm. William was kicking the door and screaming, saying he hated Officer Serna and was going to kill him. William Sablan held up a razor blade and said if Serna came up there he would kill him. Sablan refused to give up the razor and said if anyone opened the trap he would cut them. Officers tried to get him to exchange the razor for his dinner, but Sablan refused. Sablan tied his sheets across his cell in what appeared to be an attempt to trip up any use-of-force team which might try to enter the cell. He also covered the window of the cell with toothpaste. Sablan was also observed making a shield of his mattress. A use-of-force team was used to remove Sablan from the cell. He denied that he had a razor, and one was not found in the cell. However, paper and cloth in the cell had obviously been cut with a sharp instrument. The toilet could not be searched because it

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had been filled with feces, urine, paper, coffee, and other objects. Copies of all interview reports, law enforcement reports known to the government regarding this incident, including reports of Officer Masopust, have been provided to defense counsel. c. Videotape of use-of-force action The videotape is approximately twenty minutes in duration. It depicts a use-offorce team preparing to respond to the defendant's cell and their placement of the defendant in ambulatory restraints. The defendant voluntarily agreed to be handcuffed after Lt. Ed Russell talked to him, so forced removal by the team was not necessary. The defendant is shown being searched for a weapon, and his statements complaining about his treatment can be heard A copy of this tape, which can be authenticated by a custodian of records from BOP, has been provided to defense counsel. 8. NOI ¶: C 1(h) (Third Amended NOI) Date of Offense: 1/19/01 Court case/BOP #: FCI-Englewood, Colorado-no incident report The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following: Testimony of Lt. D. Thompson It is anticipated that Lt. Thompson's testimony will include the following: At 6:18 p.m., Lt. Thompson was requested to provide immediate assistance to

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officers in the SHU at FCI, Englewood because William Sablan was extremely agitated and out of control. Sablan had detached the metal desk from the wall of his cell and was using it as a battering ram against the door of his cell. Sablan was screaming and crying and threatening to injure and kill inmate Samuel Robinson. Sablan was put into restraints and removed from his cell. Copies of all reports known to the government regarding this incident have been provided to defense counsel. 9. NOI ¶: C 1(i) (Third Amended NOI) Date of Offense: 2/9/01 Court case/BOP #: FCI-Englewood, Colorado-no incident report The evidence offered to establish this conduct as indicative of future dangerousness of William 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 William Sablan's cell at FCI, Englewood while Sablan was in court on February 9, 2001. Brown removed items of old fruit and cups saved from meals which were in the cell. When Sablan returned from court, Sablan noticed that things had been moved in his cell. He became extremely angry, and demanded to know "who the fuck was in here shaking down my room?" When Officer Brown approached the cell window, William Sablan said "You motherfuckers can't do this to me. I am a death row inmate and I don't play these fucking games with

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you people. Do you people understand that I came from Florence and I am here for killing a motherfucker?" Officer Brown asked Sablan to lower his voice and to tell him what was wrong with his cell. Sablan replied, "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." Sablan then used a closed fist to strike the window of his cell. Copies of all reports known to the government regarding this incident have been provided to defense counsel. 10. NOI ¶: C 1(j) (Third Amended NOI) Date of Offense: 2/12/01 Court case/BOP #: Incident Nos. 857603 and 857606/ FCI-Englewood, Colorado Violation: Assault and Threatening Bodily Harm The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following: a. Testimony of Senior Officer Specialist Brent Hunt, Jr. It is anticipated that Officer Hunt's testimony will include the following: William Sablan yelled to Officer Hunt at FCI, Englewood and then threw hot coffee on him, hitting Hunt in the face, neck and chest. Sablan threatened to kill the officer and blocked the closing of the food slot into the cell with his foot. Sablan accused Hunt of making an obscene gesture toward him. He admitted throwing the coffee on Hunt and said, "On my island, we would kill people for that." Copies of all reports known to the government regarding this incident have been provided to defense counsel. 23

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b. Testimony of Federal Air Marshal Pete Tozer, formerly a Senior Officer Specialist with the Bureau of Prisons (BOP) and a member of the use-of-force team which removed William Sablan from his cell and placed him in restraints. It is anticipated that Officer Hunt's testimony will include the following: During the team's entry into the cell, Sablan was combative and attempted to bite Tozer's left hand. Tozer also saw Sablan try to bite another officer when they had to return to the holding cell to put Sablan into hard restraints after he pulled free of the soft restraints initially used. Copies of all reports known to the government regarding this incident have been provided to defense counsel. c. Testimony of Lt. F. Entzel, officer with BOP. It is anticipated that Lt. Entzel's testimony will include the following: Entzel assisted chief psychologist Dr. Wertz with confrontational avoidance with William Sablan during this incident. Sablan had covered his cell window and was refusing to submit to restraints. Sablan told them he had a plastic bag and to go ahead and gas him. After he repeatedly refused to cooperate, the team did use a chemical agent in order to enter the cell. Sablan continued to fight the team upon entry and had to be wrestled to the floor for restraints to be applied. He was put into four-point soft restraints. While in the holding cell, Sablan removed his right arm from the restraint and the team had to be reassembled to enter the cell again. While waiting for them, Sablan said,

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"I'm going to die, fuck the team, make them work, let's see how long it takes the team to strap me back down." Sablan had to be placed into four-point hard restraints. Copies of all reports known to the government regarding this incident have been provided to defense counsel. c. Videotape taken during the incident The videotape is approximately 1 hour and thirty minutes long. It shows efforts made to persuade Sablan to cooperate and the actions of the use-of-force team. It also shows Sablan removing his restraints in the holding cell. A copy of this video, which can be authenticated by a custodian of records for BOP, has been provided to defense counsel 11. NOI ¶: C 1(k) (Third Amended NOI) Date of Offense: 3/24/01 Court case/BOP #: Incident Report No.869064/ ADX, Florence, Colorado Violation: Assault and Refusing to Obey an Order The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following: Testimony of Senior Officer Specialist Adam Holladay It is anticipated that Officer Holladay's testimony will include the following: While William Sablan was being escorted from one cell to another during monthly cell rotation, he stopped and made an aggressive turn to his left. Officer Castillo, the escorting officer, gave the inmate a direct order to keep walking. Sablan continued down the range a couple of feet and suddenly stopped and made another aggressive sharp turn 25

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to his left. Officer Holladay then placed the end of his baton on Sablan's lower left side and pushed him back toward his cell. Once Sablan was inside his cell and the inner grill secured, he became verbally abusive toward Officer Castillo and Officer Holladay. After his hand restraints were removed, he threw a bar of soap at Holladay. He then reached through the bars aggressively and grabbed Officer Holladay's shirt. Holladay struck Sablan's arm with his baton and Sablan backed away from the grill, which gave Holladay an opportunity to leave the sallyport. The outer door was then secured. Copies of all reports known to the government regarding this incident have been provided to defense counsel. 12. NOI ¶: C 1(l) (Proposed Third Amended NOI) Date of Offense: 5/29/01 Court case/BOP #: Incident Report No.889220/ ADX, Florence, Colorado Violation: Threatening Staff/ Tampering or Interfering with any Security Device; Failure to Follow Safety Regulations The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following: a. Testimony of Lt. D.P. Womeldorf, then assigned to the facility at Florence, Colorado. It is anticipated that Lt. Womeldorf's testimony will include the following: William Sablan had been transported to an outside hospital for various medical tests. As Sablan was leaving an examination room where an EEG test had been performed, a defense investigator who was present at the hospital asked Lt. Beaudin if Sablan could have a Coke. When Beaudin would not give permission, Sablan became

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angry and verbally abusive to Beaudin and Womeldorf. On the trip back to Florence, Womeldorf was in the chase car. He could see Sablan moving around inside the van­standing up, lying down, moving from side to side. Lt. Beaudin radioed Womeldorf that Sablan was threatening to slip his handcuffs. The van and escort vehicle immediately returned to the facility with the escort car running lights and siren. Copies of all reports known to the government regarding this incident have been provided to defense counsel. b. Testimony of Federal Air Marshal J. Beaudin, formerly a lieutenant with BOP at the Florence facility. It is anticipated that Mr. Beaudin's testimony will include the following: Inside the hospital, Beaudin refused to allow Sablan to have a Coke but provided him with water. Sablan became angry and verbally abusive. In the van on the return trip to Florence, William Sablan repeatedly threatened to assault Beaudin. Sablan also removed his seatbelt, tried to remove his restraints and said he could get out of them if he wanted. Copies of all reports known to the government regarding this incident have been provided to defense counsel. c. Testimony of A. Gillespie, the driver of the van carrying William Sablan. It is anticipated that Mr. Gillespie's testimony will include the following:

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Upon exiting the hospital, William Sablan was obviously agitated with the officers escorting him. Gillespie placed Sablan in the van and buckled his seatbelt. From the moment they left the hospital, Sablan kept talking about having been disrespected. At the edge of town, he stood up and was tampering with his restraints, saying he was going to break out of them. He was ordered to sit down. A decision was made to return to the institution with lights and siren in order to get Sablan secured as soon as possible. Sablan continued to tamper with his restraints and be verbally abusive until he was secured at the institution. During the trip, Sablan threatened Gillespie, telling Gillespie that Gillespie could not handle working in Sablan's unit and if he did, he would wear his food every day. Copies of all reports known to the government regarding this incident have been provided to defense counsel. B. PROFFER­STATUTORY AGGRAVATING FACTOR--PRIOR CONVICTION OF VIOLENT FELONY INVOLVING FIREARM The facts underlying the defendant's convictions in United States District Court, Northern Mariana Islands, Case No. CR99-00018, for violations of 18 U.S.C. §§1203 & 2, Hostage Taking, 18 U.S.C. §922 (g)(1), Felon in Possession of a Firearm, and 18 U.S.C. §924 (h), Transfer of a Firearm Knowing It Will Be Used to Commit a Crime of Violence, to wit: Assault with a Dangerous Weapon, are also relevant to the issue of future dangerousness. Therefore, the government submits the following proffer regarding that case: 28

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NOI ¶: B 1 (Third Amended NOI) Date of Offense: 3/9/99 Court case #: United States District Court, Northern Mariana Islands, Criminal Case No. CR99-00018 The evidence offered to establish this conduct as indicative of future dangerousness of William Sablan may include the following: 1. Certified Copies of Court Documents: Information filed April 13, 1999; Plea Agreement signed on April 13, 1999 by William Sablan and his counsel; Judgment dated July 15, 1999. All of these documents have been provided to defense counsel. 2. Defendant arrest photo 3/10/99 A color photograph taken of the defendant in connection with his arrest in this case has been provided to the government by the U.S. Marshal's Service in Saipan. Deputy U.S. Marshal Clark A. Marquez may testify at the penalty hearing regarding his retrieval of the photograph. The government may seek to offer his testimony through an affidavit at the time of the Phase III Evidentiary Hearing. 3. Testimony-Major Ramon Camacho It is anticipated that Major Camacho's testimony will include the following: Major Camacho was trained in hostage negotiations and was designated as the officer to try to talk to the inmates after they took over the facility. When he arrived at the facility, he could hear William Sablan shouting profanities at the officers outside the main door. He could also hear sounds coming from the office which sounded like things 29

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breaking. He walked around to the eastern side of the facility and walked inside the closed fence area near the east gate. He yelled for Sablan to come to him. When Sablan came to the door, Camacho asked him why he was doing this. Sablan responded that "No one is taking care of our problems." As Camacho was about to respond, Sablan reached through the bars and sprayed pepper mace in his face. Camacho washed his face and then continued to try to negotiate with Sablan, trying the telephone and communicating with a megaphone. When Camacho tried to talk to him, Sablan would comment that Camacho was very good at psychology and that he (Sablan) knew what Camacho was trying to do. Shortly thereafter, he heard gunshots in the facility. Camacho asked Sablan if he had a gun and where he got it. During the negotiations, Sablan made the following statements: a. "maybe I should start killing people in here and give the police a real bloody mess." b. "I am holding a gun and I have a lot of dynamite. It belongs to your officer and we have plenty of guns and dynamite." c. "I have four Chinese people here. I'll blow them away before I surrender and

I will kill myself before I surrender. I have nothing to lose. My daughter was killed in a car accident and the police did not do anything." d. Demanded that the governor come to talk to him or he would "kill one Chinese and throw his body out to show you I mean business."

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e. "I can kill anyone in here. I am going to first kill the Chinese." Copies of all reports and statements known to the government regarding this case have been provided to defense counsel. 4. Testimony of ATF SA Gil Bartosh The 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. a. Statement of Chinese Detainee Zhou Bo SA Bartosh was present during the interview of Chinese detainee Zhou Bo. Zhou Bo is believed to be living in China and has not been located. It is anticipated that

Agent Bartosh's testimony regarding the contents of that interview would include the following: Three days before the takeover, William Sablan dragged Zhou from bed and ordered him to cover up a hole in the ceiling in another cell and not tell anybody about it. On 3/8/99, defendant again dragged him out of bed and started beating him. Zhou Bo saw the defendant struggling with the guard for the keys and saw him assault the guard. The defendant also ordered someone to search the lockers in the office while the defendant held the guard.

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The defendant ordered the other prisoners to break up ceramic structures and make a barricade. If Zhou moved too slowly, William Sablan would kick or punch him. He saw Sablan with a black and gray gun and holster belt. Sablan also had magazines of ammunition which he kept in his pants pocket. The defendant pointed the gun at Zhou and demanded that he give the defendant his property. The defendant also fired the gun several times. The defendant held the gun while others wrapped Zhou in bedding and beat him. Defendant said "police no see" while the beating was taking place­Zhou understood Sablan to mean that Sablan believed that the bedding would prevent bruising and the injuries could not be seen. William Sablan ordered Zhou to strip and pushed him up against the east gate of the facility while he poked the gun out through the bars beside Zhou. The defendant pointed the gun directly at the side of Zhou's head and pulled the trigger. The gun clicked but did not fire. Zhou urinated on himself, and the defendant laughed at him. Then the defendant pointed the gun out the gate and fired a round on each side of Zhou's head. All reports known to the government related to detainee Zhou have been provided to defense counsel. b. Statement of Filipino Detainee Saddy Camaso Cuarteron Mr. Cuarteron provided a sworn, signed statement to SA Bartosh on March 12, 1999. He described the actions of William Sablan during the takeover of the Male

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Detention Facility in Saipan on March 9, 1999. Mr. Cuarteron heard William Sablan ordering the Chinese inmates to start breaking everything and saw him walking in the hallway shouting "I have a gun," "I have Chinese hostages," and "if you shoot at us, I will kill the Chinese." He saw the defendant holding a gun and firing the gun when the other prisoners had no money to give him. Mr. Cuarton also saw the defendant become extremely angry when one of the Chinese who had been sent out to retrieve food escaped. At that point, he threatened to kill them if they tried to escape, and he pointed the gun at them. William Sablan appeared to be the leader of the takeover. All reports known to the government related to detainee Cuarton have been provided to defense counsel. c. Statement of Chinese Detainee Cui Xing Hao This detainee provided a sworn, signed statement to SA Bartosh on March 16, 1999. On March 9, 1999, Cui Xing Hao was directed by the defendant, who was holding a gun, to move to a different cell. When Hao did not move quickly enough, Sablan grabbed him by the back of his hair and gestured with his gun to move faster. The defendant demanded that the Chinese give him and others their money and watches. Hao saw Sablan with the handgun several times and periodically throughout the day Sablan struck him with his fist. He thinks Sablan fired about forty rounds from the firearm during the day.

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All reports known to the government related to detainee Hao have been provided to defense counsel. c. Statement of Detainee Luis Deleon Guerrero Camacho Mr. Camacho provided a sworn, signed statement to SA Bartosh on March 16, 1999 regarding the prison takeover on March 9, 1999. William Sablan was carrying a gun and threatened to shoot him if he tried to run. Camacho also heard Sablan threaten to shoot the Chinese detainees All reports known to the government related to detainee Camacho have been provided to defense counsel. 5. Testimony of Officer Chris Guerrero It is anticipated that Officer Guerrero's testimony would include the following: Officer Guerrero was on the computer in the office when one of the inmates told him that William needed assistance in the west wing. Guerrero went to the west wing and talked to William Sablan. He knew Sablan prior to this incident. Sablan asked him to do him a favor-just let them go. Then they blocked the door. When Guerrero walked in, they were already wearing camouflage and were ready to go. William said, "Chris, we can really hurt you. You're a good officer, just let us walk out." William even told him how to cover up the escape. When William realized Guerrero was not giving in, he started trying to get his key. William and Guerrero struggled over the key and William told his guys to help. The

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phone rang and William jerked the phone out of the wall. William came at Guerrero and tried to punch him. Guerrero was trying to make a lot of noise, so William called for help. Inmate Blas then jumped Guerrero, pinned him against the wall and tried to strangle him with a strap. Sablan and Blas managed to get Guerrero's key. Guerrero noticed that the safe was open in the office, but he knew that his gun was in the desk. The struggle lasted about fifteen minutes and William Sablan was the leader. The inmates took the key and opened the cells. Guerrero got the key back by kicking the door and slamming it shut. Then William took the key again when Guerrero was being held against the wall. William had a big fire extinguisher raised up and said, "Let's finish this guy off." As he held the fire extinguisher over Guerrero, William said in Chamorro, "I'll kill you." A knock at the door saved Guerrero. William and one other inmate got behind the door­everyone else ran back to their sections. Det. Patrice was at the door asking for some information on an arrestee. Guerrero tried to signal Det. Patrice and was able to get out and lock the door behind him. All Interviews and reports of Officer Guerrero known to the government regarding this incident have been provided to defense counsel. 6. Photos and video of damage to facility. All photos and videos regarding this case have been provided to defense counsel.

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7. Identification It is anticipated that, in addition to the arrest photograph referenced above, the defendant will be identified by witnesses to the incident and through BOP records containing fingerprints and photos. BOP custodian of records Wendy Heim may testify regarding records maintained by BOP regarding the defendant. The government may also seek to have the fingerprints associated with this case compared with known prints. All photographs and fingerprint records from BOP have been provided to defense counsel. CONCLUSION The above Amended Proffer represents the government's best estimate at this time of the evidence it intends to offer to support the non-statutory aggravating factor of future dangerousness. Additional evidence not listed above may become known to the government between the date of this Amended Proffer and the Phase III evidentiary hearing or the trial. The government reserves the right, therefore, to seek leave of the Court to further supplement this proffer as necessary prior to that hearing or the trial.

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Respectfully submitted this 28 th day of August, 2006, TROY A. EID United States Attorney BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE I hereby certify that on this 28th day of August, 2006, I electronically filed the foregoing GOVERNMENT'S AMENDED PROFFER OF PENALTY PHASE EVIDENCE IN SUPPORT OF NON-STATUTORY AGGRAVATING FACTOR OF FUTURE DANGEROUSNESS OF WILLIAM CONCEPCION SABLAN with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected] Dean Steven Neuwirth [email protected] s/ Dorothy Burwell DOROTHY BURWELL Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0100 Fax (303) 454-0400 E-mail address [email protected] Attorneys for Rudy Sablan Forrest W. Lewis [email protected] Donald R. Knight [email protected]

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