Free Objection (Other) - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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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, RUDY CABRERA SABLAN, Defendants.
______________________________________________________________________________

William Sablan's Objections to the Government's July 24, 2006, Proffer Based On Its Incompleteness ________________________________________________________________________ Defendant William Sablan ("William"), through undersigned court-appointed counsel, objects to the government's failure to include a multitude of documents and records in its proffer. Additionally, he respectfully requests that this Court deny the government's requests to be allowed to supplement its proffer at some unspecified time in the future. As grounds, counsel state: 1. The government filed its original Notice of Intent to Seek the Death Penalty ("NOI") on May 1, 2001. That is over five years ago. The prior convictions and institutional-setting incidents alleged in support of future dangerousness in its current

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Third Amended NOI are essentially the same as those alleged in the original NOI, except that the government has withdrawn certain allegations in the course of the parties' litigation of Phase II and III motions. 2. On February 13, 2006, William filed a "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." (Document 1682). William requested that the production be ordered prior to the May, 2006 hearing that was set to address penalty-phase issues. Such a production would have enabled the Court to review the evidence for its relevancy, reliability, and unfair prejudice versus probative value prior to the hearing and then to consider the arguments of the parties at the hearing. 3. On February 13, 2006, the Court ordered the government to respond to William's motion. (Document 1697). 4. The government filed an initial response on February 28, 2006, arguing that it would be premature for the Court to order the production sought. (Document 1711). It supplemented its response on March 27, 2006, stating it had no objection to providing the Court and defense counsel with the information requested, but contended it should not be required to do so before the May Phase III hearing and that it would prefer not to do so until after the guilt/innocence phase was concluded. (Documents 1727 & 1736, Parts D). 5. The Court wisely rejected the government's suggested approach. At a status conference held on April 11, 2006, the Court made it clear that it wanted to review the
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government's evidence regarding future dangerousness prior to trial. It said "the court needs to rule on future dangerousness before trial. I'm not going to do it after trial and before the penalty phase. It makes no sense to me and I agree with the cases I've read where the judges have done that before the liability phase. That's the only sensible plan." (4/11/06 Tr. at 4). The Court also made it clear that it wanted this accomplished sooner rather than later, asking the government for an "ambitious timetable" for gathering the information, so it could set a firm deadline by which it must be filed. (4/11/06 Tr. at 5). 6. On April 13, 2006, the Court followed up with a written order, stating that "the Government shall file a proffer of the evidence it intends to rely on in connection with the incidents it seeks to use in support of the nonstautory aggravating factor of future dangerousness by July 24, 2006." (Document 1755). 7. Despite the fact that the government's NOI has been pending for over five years, the Court's stated intent to resolve penalty-phase issues pretrial, and the deadline it imposed on the government, the government's July 24, 2006 proffer is incomplete in the following ways: Re: NOI ¶ C 1(a) (a) The proffer relating to this 1984 Commonwealth of the Northern Mariana Islands ("CNMI") conviction states that the government intends to introduce certified copies of court documents, including a "Negotiated Plea, signed and dated September 27, 1984" a "Judgment & Commitment, dated November 16, 1984" and a "Promissory Note, dated January 13, 1985." (Proffer at 2). The certified copies of these
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documents have not been submitted with the proffer. The actual documents need to be examined by the Court and counsel for purposes of evaluating their relevancy and their reliability as supposedly self-authenticating court documents. (b) For purposes of establishing that the William Sablan being prosecuted in the instant case is the same William Sablan convicted and incarcerated in Saipan as a result of case number 84-69, the proffer reflects that the government anticipates using prison records. Those records have not been submitted as part of the proffer. Instead, the proffer reflects that "[t]hese records have been requested but not yet received and will be provided to defense counsel upon receipt." (Proffer at 3). Again, the actual documents need to be examined by the Court and counsel for purposes of evaluating their relevancy and reliability. Re: NOI ¶ C 1 (b) (a) The proffer relating to this 1984 CNMI conviction states that the government intends to introduce certified copies of court documents, including a "Negotiated Plea, signed and dated September 27, 1984" and a "Judgment & Commitment Order dated November 16, 1984". (Proffer at 4). Neither document has been submitted with the proffer. The actual documents need to be examined by the Court and counsel for purposes of evaluating their relevancy and their reliability as supposedly self-authenticating court documents. (b) For purposes of establishing that the William Sablan being prosecuted in the instant case is the same William Sablan convicted and incarcerated in Saipan as a
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result of case number 84-68, the proffer reflects the government anticipates using prison records. Nonetheless, the proffer states that those "prison records from Saipan . . . have been requested but not yet received." (Proffer at 5). Again, the actual documents need to be examined by the Court and counsel for purposes of evaluating their relevancy and reliability. Re: NOI ¶ C 1 (c) (a) The proffer relating to this 1985 CNMI conviction states that the government intends to introduce certified copies of court documents, including a "Judgment & Sentence dated August 26, 1985". (Proffer at 6). That document has not been submitted as part of the proffer. The actual document needs to be examined by the Court and counsel for purposes of evaluating its relevancy and its reliability as a supposedly self-authenticating court document. (b) The proffer states that the government anticipates using audiotapes of the trial testimony of unnamed witnesses. The proffer does not include the tapes or a transcript made from them. Instead the proffer states that it "has ordered audio tapes of the trial testimony, which are publically available, from the CNMI Trial Court and expects to receive them soon. Copies of these tapes will be provided to defense counsel upon receipt, and the government, with permission of the Court, will submit a supplemental proffer of the testimony upon which it intends to rely." (Proffer at 6). (c) Again for purposes of identification, the proffer indicates the anticipated use of Saipan prison records, yet it further reflects that "[t]hese records have
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been requested but not yet received." (Proffer at 6). The actual documents need to be examined by the Court and counsel for purposes of evaluating their relevancy and reliability. (d) The proposed use of audiotapes/transcripts should be rejected now, rather than delaying a Court ruling on this incident. Re: NOI ¶ C 1 (d) (a) The proffer relating to this 1996 CNMI conviction reflects that the government intends to introduce certified copies of court documents, including an "Amended Superseding Information, dated September 10, 1997", a "Special Verdict, Count I, dated December 15, 1997", a "Special Verdict, Count II, dated December 15, 1997", a "Judgment of Conviction dated December 17, 1997" and a "Sentence Order dated February 26, 1998." (Proffer at 7). None of these documents have been submitted as part of the proffer. The actual documents need to be examined by the Court and counsel for purposes of evaluating their relevancy and their reliability as supposedly selfauthenticating court documents. (b) The proffer states that the government anticipates using a transcript of the trial testimony of Mr. Nemoto and Mr. Yasuo. The proffer does not include the transcript and, in fact, one does not yet exist. Instead the proffer states that "[a]udio tape recordings of trial proceedings and testimony still exist and have been ordered from the Clerk of the Superior Court in Saipan. They are expected to arrive soon. Copies of the tapes will be provided to defense counsel as soon as they are received, and, with the
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Court's permission, the government will submit a supplemental proffer of the testimony upon which it intends to rely." (Proffer at 7). (c) Regarding identification, the proffer states that "[p]rison records from Saipan may also be used to tie William Sablan to this conviction. These records have been requested but not yet received." (Proffer at 11). The actual documents need to be examined by the Court and counsel for purposes of evaluating their relevancy and reliability. (d) The proposed use of the audiotapes/transcripts should be rejected now, rather than delaying a Court ruling on this incident. Re: NOI ¶ C 1 (e) (a) The proffer relating to this 1997 CNMI conviction states that the government intends to introduce certified copies of court documents, including "Plea Agreement dated April 21, 1998" and a "Judgment and Commitment Order dated May 12, 1998." (Proffer at 12). These documents have not been submitted as part of the proffer. The actual documents need to be examined by the Court and counsel for purposes of evaluating their relevancy and their reliability as supposedly self-authenticating court documents. Re: NOI ¶ C 1 (g) In relation to this alleged December 5, 1999 institutional-setting incident, the proffer indicates that the government anticipates introducing a videotape of "use-offorce" action. (Proffer at 13). The videotape was not submitted as part of the proffer,
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although the defense was provided a copy on August 2, 2006. The Court, however, needs to view it to evaluate its relevancy, reliability, and whether its claimed probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. Re: NOI ¶ C 1 (j) In relation this February 12, 2001 institutional-setting incident, the proffer indicates that the government anticipates showing a videotape of "use-of-force action." (Proffer at 16). The videotape was not submitted as part of the proffer. (The videotape the defense received in discovery is dated February 13, 2001.) The Court, however, needs to view it to determine its relevancy, reliability, and whether its claimed probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. Re: Statutory Aggravating Factor ­ Prior Conviction of Violent Felony Involving a Firearm (a) The proffer relating to this 1999 conviction in the U.S. District Court for the Northern Marian Islands, states that the government intends to introduce certified copies of court documents, including "Plea Agreement signed on April 13, 1999" and a "Judgment dated July 15, 1999." (Proffer at 21). These documents have not been submitted as part of the proffer. The actual documents need to be examined by the Court and counsel for purposes of evaluating their relevancy and their reliability as supposedly self-authenticating court documents.
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(b) The proffer also states that the government intends to introduce "Defendant arrest photo 3/10/99", as well as "photos and video of damage to facility." (Proffer at 22; 26). These items have not been submitted with the proffer. The Court and counsel need to view them for purposes of evaluating their relevancy and reliability and whether their probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. 8. The wisdom of the Court's decision to handle the penalty-phase evidentiary issues prior to trial is becoming ever more apparent as the government slowly attempts to put its penalty-phase case together. Imagine the consternation its disorganization would have caused had a jury been waiting. 9. The trial is set to commence in January, 2007. The defense is committed to that date. The sooner the penalty-phase evidentiary matters can be resolved and an outline of that phase is known, the sooner both parties and the Court can turn its attention to other issues that need to be dealt with before trial. Because of the Court's Severance Order, Rudy's counsel's conflict for the week of August 28, 2006 is no longer relevant. In the event the Court has any time available during that week, William would like to use it to address his objections to the proffer. WHEREFORE, William requests that this Court deny the government's request to be allowed to supplement its proffer in the future with audiotapes/transcripts from cases 85-49 and 96-235. Additionally, William requests that the Court set a firm date by which the government is required to produce the other items omitted from its proffer and that if
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the government fails to meet that deadline, it be precluded from using the incident to which it relates. Dated: August 7, 2006 Respectfully submitted, Patrick J. Burke Patrick J. Purke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 Denver, CO 80202 303-825-3050 By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan Nathan Chambers Chambers, Dansky & Mulvahill 1601 Blake Street, Suite 300 Denver, CO 80202 303-825-2222

CERTIFICATE OF SERVICE I hereby certify that on August 7, 2006 I electronically filed the foregoing William Sablan's Objections to the Government's July 24, 2006, Proffer Based On Its Incompleteness 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]
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By: /s/ Susan L. Foreman

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