Free Response - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action 1:00-cr-000531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, RUDY CABRERA SABLAN, Defendants.
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William Sablan's Response To the Government's July 24, 2006 Proffer Regarding Future Dangerousness __________________________________________________________________ Defendant William Sablan ("William"), through undersigned court-appointed counsel, respectfully submits the following in response to the Government's Proffer of Penalty Phase Evidence in Support of Non-Statutory Aggravating Factor of Future Dangerousness. (Document 1843). 1. NOI ¶: C 1 (a) Date of Offense: 8/17/84 CNMI Trial Court Case No. 84-69 1984 Conviction for Misdemeanor Assault and Battery

(a) This misdemeanor assault conviction relates to conduct outside a prison setting. This Court has ruled that future dangerousness must be evaluated in the context
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of life in a prison setting. (Document 1836 at 14). There is nothing in the proffer that demonstrates relevancy to a prison setting.

(b) Because the conviction was for a misdemeanor, and the sentence imposed was for only one year, this incident is of insufficient gravity to warrant jury consideration in its life or death decision.1 It stands in dramatic contrast to the statutory aggravating factors which deal with criminal history and "rely[] almost exclusively on criminal convictions of either very serious or repetitive felony offenses." United States v. Davis, 912 F. Supp. 938, 944 (E.D. La. 1996).2 See Gregg v. Georgia, 428 U.S. 153, 192 (1976) (factors to be "particularly relevant to the sentencing decision"); Gilbert, 120 F.Supp.2d at 153 (D. Mass. 2000) ("consideration of relatively minor misbehavior, however disturbing, would undermine the seriousness of the death penalty decision");Friend, 92 F. Supp. 2d at 544; 545 ("an aggravating factor must have a substantial degree of gravity to be the sort of factor which is appropriate for consideration. . ." [;] . . .not . . . any fact

This is especially true because the victim's finger was cut because he grabbed the blade of the knife. The statutory aggravating factors are considered a frame of reference for assessing nonstatutory aggravating factors and their supportive evidence. See Friend, 92 F. Supp. 2d 534, 544 (E.D. Va. 2000) ("it is appropriate to inform the analysis here by reference to the aggravating factors set out in the text of the FDPA"); United States v. Gilbert, 120 F.Supp.2d 147, 152 (D. Mass. 2000) Gilbert, 120 F. Supp. 2d at 152 ("the court is guided by the statutory aggravating factors Congress has listed in 18 U.S.C. § 3592 . . ."); Davis, 912 F. Supp. at 944 (the statutory aggravating factors are a "ready framework for determining Congress' intent and for evaluating the relevance and admissibility of the proposed nonstatutory aggravating factors").
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which makes a capital defendant more morally blameworthy, or even deserving of more punishment, thereby qualifies . . ."); United States v. Peoples, 74 F.Supp.2d 930, 932 (W.D. Mo. 1999) ("tampering and dealing in stolen goods . . . are pernicious distractions . . . in considering whether a defendant shall live or die").

(c) The date of the offense was August 17, 1984. It is therefore too remote in time to be relevant to future dangerousness. See United States v. Davis, 2003 WL 1873088 (E.D. La. April 10, 2003) (striking two prior juvenile adjudications, in part, because they were both over ten years old and thus remote in time). Cf. USSG § 4A1.1, comment. (shorter prior sentences become too remote to count toward criminal history more quickly than longer sentences); § 4A1.2(e) (any sentence that did not exceed one year and one month and that was imposed more than ten years before the current offense is not counted for purposes of criminal history).

(d) The admission of Victor Pangelinan's testimony would deny the defendant the benefit of his plea bargain. The negotiated plea, signed and dated September 27, 1984, indicates that the defendant "shall enter a plea of guilty to a lesser included offense of Assault and Battery of Count III of the Information in Criminal Case No. 84-69. Upon entry of said plea, plaintiff shall dismiss Counts I, and II." Nevertheless, the government proffers Mr. Pangelinan's testimony, which includes allegations of burglary that presumably relate to at least one of the dismissed counts. To allow Mr. Pangelinan to
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testify about conduct supportive of charges beyond those to which the defendant pled guilty would deny him the benefit of the plea bargain. Cf. Taylor, 495 at 601 ("if a guilty plea to a lesser . . . offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to [the greater offense]"). Here, the guilty plea was induced by promises to dismiss charges and run any sentence imposed concurrently with that imposed in case 84-68. The government cannot now resurrect those charges, thereby reneging on the promises inducing the plea, in order to use them to support a death sentence.

(e) The admission of Victor Pangelinan's testimony ­ during which he would be attempting to recall events that occurred 22 years ago ­ would not meet the heightened reliability and due process standards required in capital proceedings. This is particularly true, because there were multiple defendants in the case and nothing contemporaneously recorded that reflect the role each played in the events. See Gardner v. Florida, 430 U.S. 349, 358 (1977) ("it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause"); Gilbert, 120 F. Supp. 2d at 150 (striking incidents of prior assaults where supporting evidence would consist of testimony provided 10 to 13 years after the fact on the grounds that the information would not meet the "`heightened standard of reliability' required in death penalty cases") (quoting Ford v. Wainwright, 477 U.S. 410-411 (1986). See also pages 12-15 below.

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(f) This misdemeanor conviction was obtained in a local court of the CNMI. Although the Court has refused to impose a per se ban on the use of CNMI convictions for purposes of future dangerousness, it deferred ruling on the reliability and admissibility of specific convictions. (Document 1836 at 36). This misdemeanor conviction is insufficiently reliable to be used in this capital proceeding for purposes of aggravation. Certified court documents have not been included in the proffer and the discovery provided does not even include the Information, the Amended Information, or a plea colloquy.

(g) The promissory note listed in the proffer should also be excluded under § 3593(c). The judgment and commitment order was entered on November 16, 1984. Because the promissory note was not signed until January 13, 1985, it cannot constitute a restitution aspect of the judgment and commitment; in fact, it appears to be related to a separate civil case, and is excludable under Fed. R. Evid. 408 as a compromise or offer to compromise claim.

(h) In view of the reasons specified above, the admission of this conviction and/or Mr. Pangelinan's testimony should be excluded under 3593(c) because their "probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." See also pages 12-15 below.

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2. NOI ¶: C 1 (b) Date of Offense: August 19, 1984 CNMI Trial Court Case No. 84-68 1984 Conviction for Burglary

The government's proffer absurdly characterizes this conviction as a burglary of a person, that is, Chanshyam (George) Ramnani. (Proffer at 4). Burglary, however, is commonly classified as a crime against property in the United States, e.g., C.R.S. § 18-4203, as well as in Saipan, see Section 1801 of Title 6 of the Commonwealth Code. According to the discovery provided, the burglary charge related to the "unlawful[] entr[y] into the Lovi's Emporium Store with the intent to commit a crime against property." The building itself was owned by the Sablans. The merchandise allegedly stolen was owned by Mr. Ramnani's employer, who leased the space from the Sablans. It is misleading to characterize Mr. Ramnani as "the victim of the burglary." (Proffer at 4).

(a) This burglary conviction relates to conduct outside a prison setting. This Court has ruled that future dangerousness must be evaluated in the context of life in a prison setting. (Document 1836 at 14). There is nothing in the proffer that demonstrates relevancy to a prison setting. See Gilbert, 120 F. Supp. 2d at 155 (striking breaking and entering conviction alleged in support of future dangerousness due to its "insufficient relevance to the jury's decision on the death penalty," [noting that] "[t]he Government

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has failed to explain why this incident has any bearing on defendant's dangerousness in prison, where she would be under lock and key"); Peoples, 74 F. Supp. 2d at 932 (finding past convictions for stealing, tampering, burglary, receiving stolen property and unlawful possession of a weapon irrelevant to death penalty consideration; also finding six uncharged burglaries inadequately related to claim of future dangerousness in prison setting).

(b) The burglary conviction and its five-year sentence are of insufficient gravity to warrant jury consideration in its decision between life and death. See ¶ 1 (b) above for relevant argument and authority.

(c) The date of the offense was August 19, 1984. It is therefore too remote in time to be relevant to future dangerousness. See ¶ 1(c) above for relevant argument and authority.

(d) The admission of Ghanshyam Ramnani's testimony would deny the defendant the benefit of the plea bargain. According to the discovery, the negotiated plea signed and dated September 27, 1984 indicates that the defendant "shall enter a plea of guilty to Count I of the Information in Criminal Case No. 84-68. Upon entry of said plea, plaintiff shall dismiss Counts II, III, and IV. At sentencing, plaintiff shall recommend no more than five (5) years incarceration." The Information provided in discovery, the counts that
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were dismissed charged robbery, kidnapping, and aggravated assault and battery. Despite their dismissal, the government's proffer as to Mr. Ramnani's testimony includes, at a minimum, allegations of assault and theft. To allow Mr. Ramnani to testify about conduct supportive of charges beyond those to which the defendant pled guilty would deny him the benefit of the negotiated plea. See ¶ 1 (d) above for relevant argument and authority.

(e) The admission of Ghanshyam Ramnani's testimony ­ during which he would be attempting to recall events that occurred 22 years ago ­ would not meet the heightened reliability standards required in capital proceedings. This is particularly true because there were multiple defendants in the case and nothing contemporaneously recorded that reflect the role each played in the events. See ¶ 1(e) above for relevant argument and authority.

(f) This conviction was obtained in a local court of the CNMI. Although the Court has refused to impose a per se ban on the use of CNMI convictions for purposes of future dangerousness, it deferred ruling on the reliability and admissibility of specific convictions. (Document 1836 at 36). This conviction is insufficiently reliable to be used in this capital proceeding for purposes of aggravation. Certified court documents have not been included in the proffer and the discovery provided does not include the plea colloquy. See ¶ 1 (f) above for relevant argument and authority.

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(g) This conviction and/or Mr. Ramnani's testimony should be excluded under § 3593(c) because their "probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury."

(h) The alleged threat made by William's brother to Mr. Ramnani after William was in jail should also be excluded under § 3593(c).

3. NOI ¶: C 1 (c) Date of Offense: May 20, 1985 CNMI Trial Court Case No. 85-89 1985 Conviction for Robbery While Armed with a Dangerous Weapon

(a) This conviction followed a trial by jury. According to the discovery, the jury convicted the defendant of robbery while armed, but acquitted him two counts of assault with a dangerous weapon. Like the two convictions discussed above, this conviction relates to conduct outside a prison setting and is not relevant to future dangerousness in a prison setting. See ¶ 1(a) above for relevant argument and authority.

(b) Although as a general matter, robbery is considered a crime having the potential for injury, that did not occur in this case, as evidenced by the jury's acquittal on the two counts of assault. Therefore, the conviction and its six-year sentence are of insufficient gravity to warrant jury consideration in its life and death decision. See ¶ 1
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(b) above for relevant argument and authority.

(c) This 1985 conviction is too remote in time to be adequately relevant and reliable. Moreover, the only document the government has produced is a copy of a Judgment and Sentence. No other documents, e.g., police reports, witness interviews, the court file, have been produced. The proffer does not even name the alleged victims, and the NOI refers to them as "a group of Japanese tourists." (Document 1844 at 6). Counsel for William cannot possibly provide effective assistance of counsel at the penalty phase, as is constitutionally required, without such discovery. See Rompilla v. Beard, 545 U.S. 374 (2005) (reversing death sentence where counsel rendered ineffective assistance by failing to properly investigate a prior conviction the prosecution used as aggravation in the penalty phase); Wiggins v. Smith, 539 U.S. 510 (2003) (reversing death sentence where counsel rendered ineffective assistance by failing to properly investigate defendant's history for purposes of presenting mitigating evidence).

(d) The government's proposed use of audiotapes of trial testimony presents a myriad of problems. First, the government does not even have the tapes in its possession at this point in time. Second, given that the victims were Japanese tourists, their testimony was probably in Japanese. How can any transcripts prepared from them be duly authenticated? Third, how is this to be presented? Is the jury going to be required to listen to the entire trial, while being simultaneously provided with an English translation?
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If the tapes are transcribed, does each party get its own interpreter and transcriber if there is a conflict about what was said or what it meant in English? Is the jury going to be required to read the entire transcript or have it read to them? Whether it is tapes or transcripts that are used, is the government going to be allowed to pick just the parts it likes, as suggested by its proffer? If so, does the defense then get to introduce other parts it believes to be mitigating? In view of all these issues, the government's proffer represents a perfect example of what the Supreme Court meant when it stated that "the practical difficulties and potential unfairness of a factual approach are daunting." United States v. Taylor, 495 U.S. 575, 601 (1990) (adopting a categorical approach, based upon statutory language and documentary evidence, for purposes of determining whether prior convictions qualify for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e), sentence enhancement).

(e) The use of tapes and/or transcripts based upon them, rather than allowing the jury to assess the credibility of these witnesses while on the stand before them, does not meet the requirements of heightened reliability and due process that are required in capital proceedings. See ¶ 1 (e) for relevant argument and authority.

(f) This conviction, which was obtained in a local court of the CNMI, is insufficiently reliable to be used in this capital proceeding which requires heightened reliability and due process of law. See ¶ 1 (f) above for relevant argument and authority.
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(g) In view of the reasons specified above, the admission of this conviction and/or audio tapes is excludable under § 3593(c) because their "probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury."

In evaluating the three CNMI convictions listed in ¶¶ 1-3 of the NOI and proffer, it is sensible and just to consider them as a group and to strike them as a group. In addition to the reasons stated above, thee are two more reasons this is appropriate. First, all three are closely related and are exceptionally remote in time. The dates of the offenses are within nine months of each other, i.e., August 17, 1984, August 19, 1984, and May 20, 1985, respectively. At that time, William was only 19-20 years old. CNMI case 84-69 (¶ 1) and case 84-68 (¶ 2) were resolved by way of a single plea agreement, and the simultaneously imposed sentences were ordered to run concurrently. Cf. U.S.S.G. § 4A1.2(a)(2) (prior sentences imposed in related cases are to be treated as one sentence in calculating criminal history); § 4A1.2 comment. (n.3) (prior sentences are considered related if they resulted from offenses that were consolidated for trial or sentencing). The sentence imposed in case 85-49 (¶ 3) was ordered to run concurrently with those in 84-69 and 84-68. Second, the discovery as to all three incidents lack contemporaneously prepared reports. The only report the defense has been provided relating to the alleged assault on Victor Pangelinan, case 84-69, is a 302 generated from an interview conducted on June 6, 2006 ­ 22 years after the alleged assault. Although the 302 reflects that Mr. Pangelinan
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said he was interviewed twice by the local police ­ the night of the offense and after the investigation ­ the government has provided no records from these interviews. The same is true regarding CNMI case 84-68. The defense has been given a 302 generated from an interview of Mr. Ramnani conducted on July 3, 2006 ­ 22 years after the alleged offense. It also reflects that Mr. Ramnani reported the incident to the police. The government has not provided that report. Further, as indicated above regarding case 85-49, nothing other than a copy of a Judgment and Sentence has been produced. There is not documentation than even states the names of the alleged victims. If the government is allowed to go beyond the fact of the 84-69 and 84-68 convictions and present the testimony of Pangelinan and Ramnani, a procedure to which the defense strongly objects, the following is a list of the minimum amount of information defense counsel would need to properly prepare for the penalty phase:

! All police reports generated as part of the investigation of the events of August 17, 1984 and August 19, 1984 ! All reports and records regarding the "other individuals" involved in the alleged incidents ! All witness interviews generated as part of the investigation of the events of August 17, 1984 and August 19, 1984 (We know that Victor Pangelinan and George Ramnani were interviewed. Presumably, Mr. Pangelinan's wife and children were interviewed.) ! All medical records detailing Pangelinan's and Ramnani's alleged injuries
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!All medical records detailing Mrs. Pangelinan's alleged injuries ! Criminal histories of Pangelinan, Ramnani, Pangelinan's wife and children, and any other witnesses ! Current contact information for Pangelinan, Ramnani, Pangelinan's wife and children, and any other witnesses
To be constitutionally effective at any sentencing hearing, counsel for Mr. Sablan would be required do the following:

! Cross examine Pangelinan regarding any inconsistencies between statements he made in 1984 and statements he made twenty-two years after the fact to the FBI ! Examine Pangelinan's wife and children regarding their observations and experiences ! Cross examine Ramnani regarding any inconsistencies between statements he made in 1984 and the statements he made twenty-two years after the fact to the FBI (Based on the scant information provided to date, unquestionably there will be significant inconsistencies. In his 2006 interview with the FBI, Ramnani claims to have been strangled and stabbed; however, the charging document alleges that Ramnani was "punched and kicked." There is no indication that Ramnani was either strangled or stabbed. Clearly, Ramnani has recently engaged in embellishment, but without reports and interviews from 1984 defense counsel are powerless to challenge Ramnani's recent rendition of the event.) ! Examine police officers regarding the results of interviews that were conducted and investigative leads that were pursued ! Call witnesses to opine regarding Pangelinan's and Ramnani's character and reputation for truthfulness and veracity
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! Adduce evidence of Pangelinan's and Ramnani's relevant criminal history and prior incidents of conduct relevant to truthfulness ! Examine medical professionals regarding Pangelinan's and Ramnani's injuries ! Adduce testimony from the "other individuals" who were involved in the alleged incident of August 17, 1984
4. NOI ¶: C 1 (d) Date of Offense: September 29, 1996 CNMI Superior Court Case No. 96-235 1997 Robbery Conviction

(a) This robbery conviction followed a trial by jury. According to the discovery, the jury convicted the defendant of robbery while armed, but acquitted him of assault with a dangerous weapon. This conviction relates to conduct outside a prison setting and is not relevant to future dangerousness in a prison setting. See ¶ 1(a) above for relevant argument and authority.

(b) Because the defendant was acquitted of assault, this conviction and its 10-year sentence, with five years suspended, reflect conduct that is not sufficiently severe to relate to the jury's decision between life and death. See ¶ 1 (b) above for relevant argument and authority.

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(c) The date of the offense was September 29, 1996. It is therefore too remote in time to be relevant to future dangerousness. See ¶ 1 (c) above for relevant argument and authority.

(d) The government's proffer again suggests the use of audiotapes of trial testimony. Using such tapes and/or transcripts prepared from them would fail to comport with due process and heightened reliability as are required in capital proceedings. See ¶ 3 (d), (e), & (f) above for relevant argument and authority.

(e) As an alternative to using taped testimony, the government suggests deposing the victim(s) in Japan, because they are unwilling to come to the United States to testify. This suggestion is preposterous. Although Fed. R. Crim. P. 15 provides that the Court must order the government to pay for travel and subsistence expenses for the defendant and his attorneys, the Court would have to use judiciary funds to compensate counsel for their time. Why should this Court fund such an escapade, unless of course, it believes judiciary funds should be used to assist the government's efforts to execute William. If the government's subpoena power is insufficient to bring these people into court and they are unwilling to come voluntarily, the government must forego presenting the evidence.

(f) As still another alternative, the government proffers the testimony of Detective Stephen regarding his interview with alleged victim Yasuo and the testimony of Detective
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Salas regarding his interview of alleged victim Nemoto. This is the equivalent to using police reports to establish facts underlying a prior conviction that go beyond the conduct reflected in the judgment of conviction and the statute upon which the conviction is based. As such, it is precluded under Shepard v. United States, 125 S. Ct. 1254 (2005) (holding police reports cannot be used to determine whether a prior conviction qualifies as a predicate offense under the ACCA). Additionally, such testimony would constitute hearsay and is insufficiently reliable.

(g) The government's proffers the testimony of five police officers for purposes of describing William's aggressive behavior, including a challenge to a fight, and threats to kill or drown officers in the course of his arrest. As the Davis court said in striking threats of violence from jury consideration: threatening words and warped bravado, without affirmative acts, are simply too slippery to weigh as indicators of character; too attenuated to be relevant in deciding life or death; and whatever probative value they might have is far outweighed by the danger of unfair prejudice and confusion of issues. Davis, 912 F. Supp. at 945. Although this Court has refused to impose a per se ban on the use of threats, it stated it would consider specific threats in their context. (Document at 17). These "threats" were supposedly made while the officers were in boats and Sablan was swimming in the ocean. If there ever were circumstances to which the concept of "warped bravado" is applicable, this is it. Not only was Sablan at an extreme
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disadvantage ­ making any threat illusory ­ he was convinced by an officer he knew from school to get into the officer's boat voluntarily.

(h) In view of the reasons specified above, the admission of this conviction and/or audio tapes and/or the circumstances of the arrest should be excluded under § 3593(c) because their "probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury."

(i) The cumulative nature of the officers testimony regarding the circumstances of the arrest is grounds for its exclusion under § 3593(c).

(j) This incident includes an allegation that William escaped from detention after his arrest in this case. Nothing relating to this alleged escape has been included in the proffer, so it should be stricken.

5. NOI ¶: C 1 (e) Date of Offense: February 8, 1997 CNMI Trial Court Case No. 97-133 1998 Conviction for Misdemeanor Assault and Battery

(a) Although this incident occurred when the defendant was locked-up, he was not serving a sentence in a prison, but was instead being held in a less secure detention
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facility on Saipan. The security level of a Saipan detention facility is dramatically lower than a maximum security facility in the Unites States where, if sentenced to life, William would be imprisoned. Therefore, this incident is insufficiently relevant to the aggravating circumstance of future dangerousness in a prison setting. See ¶ 1(a) above for relevant argument and authority.

(b) This misdemeanor assault conviction and one year sentence is of insufficient severity to relate to the jury's decision between life and death. See ¶ 1(b) above for relevant argument and authority.

(c) According to the discovery, the Information filed in this case charged two counts of misdemeanor assault, naming different victims. The case was resolved by way of a plea agreement. In return for the defendant's plea of guilty to the count relating to Officer Camacho, the government dismissed the other count and agreed to "recommend and vigorously support" a sentence of one year in jail. The admission of the testimony of Ralph Rangamar and/or Alex Matteo regarding facts beyond the offense of conviction would deny the defendant the benefit of the plea agreement. See ¶ 1(f) above for relevant argument and authority. Moreover, the agreement contained a stipulated factual basis: On February 8, 1997, while a prisoner in the detention unit of the Division of Corrections, the defendant confronted Officer Joaquin K. Camacho. During that confrontation, the defendant inflected a minor cut on Officer Camacho's thumb by use of a small piece of metal.
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If the government is allowed to use this conviction despite its lack of severity, it should be limited to the stipulated factual basis.

(d) The government proffers the testimony of Mr. Rangamar about the defendant "get[ting hold of some keys from Rangamar's packet [and] [o]nce secured in his cell . . . refus[ing] to release them for half an hour." (Proffer at 12). The relevancy of the keys is not apparent. If the keys did not fit the lock on the cell, possession of them is irrelevant. And even it they did fit, they were not used to, but were returned.

(e) The government's proffer includes the proposed testimony of Alex Matteo to include "information that William Sablan had caused some damage in the facility and that a piece of ironwork was missing from the padlock on the cell." (Proffer at 13). Property damage is irrelevant to the jury's life and death decision. Given the fact that the public and law enforcement officers of this country are precluded from using deadly force to protect property, surely the prosecution cannot use property damage as a basis for seeking a death sentence.

6. NOI ¶: C 1 (f) BOP Incident Report No. 731923 FCI Florence 11/18/99 Rule Violation ­ destroying/altering a security device (a) This violation of code 208 is irrelevant to the question of future dangerousness,
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that is, whether William "is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others." (Document 1844 at 5) (emphasis added). The violation of a Bureau of Prison ("BOP") rule does not constitute a criminal act. As such, it is distinguishable from unadjudicated criminal conduct upon to which the Court refused to impose a per se ban. (Document 1836 at 31).

(b) Moreover, it was not an act of violence. When the restraints were broken, William was alone in a locked holding cell. Therefore, there was no serious threat to the lives and safety of others and, in fact, no one was harmed.

(c) The incident was originally written-up as destruction of government property under $100.00. Property damage is not an appropriate aggravating circumstance for a life and death decision.

(d) For the reasons specified above, this incident should be excluded under § 3593(c) because its probative value is outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury.

7. NOI ¶: C 1 (g) BOP Incident Report No. 736490 FCI Florence 12/5/99 Rule Violations ­ failing to stand for count and threatening another with bodily harm
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(a) This incident involved violation of code 320, failing to stand for count, and code 203, threatening another with bodily harm. Both are irrelevant to the question of future dangerousness, that is, whether William "is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others." (Document 1844 at 5) (emphasis added). Violations of BOP rules, including making threats are not criminal acts. As such, they are distinguishable from unadjudicated criminal conduct upon to which the Court refused to impose a per se ban. (Document 1836 at 31).

(b) Presumably, the government is attempting to use this incident because its theory of prosecution in the instant case is that Joey Estrella's throat was slashed with a razor blade. According to the proffer of Officer Masopust's testimony, William held up "a razor blade." (Proffer at 14). As this Court knows from previous evidentiary hearings, BOP provides inmates with razors for shaving, so William was not in possession of a prohibited item. Nor was the act of "holding it up" prohibited; such conduct cannot even be considered brandishing because the officer whom he allegedly threatened was not present.

(c) Threats of violence, especially when the possibility of carrying them out is illusory, constitute warped bravado and are irrelevant to the grave decision between life
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and death. See ¶ 4 (g) above for relevant argument and authority.

(d) The videotape of the use-of-force team should be excluded under § 3593(c). In its introduction, an officer, other than Masopust and contrary to Masopust's statement, reports that William has a weapon that he made from a razor. Although a use-of-force team was assembled, William agreed to be handcuffed, so the team did not have to enter the cell to forcibly handcuff him. More importantly, no weapon or razor was ever found. As such, the unfair prejudice of the videotape outweighs its probative value. No use-offorce team had to force William from his cell in order to recover a weapon made from a razor.

(e) For the reasons specified above, this incident and/or its related videotape should be excluded under § 3593(c) because its probative value is outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury.

8. NOI ¶: C 1 (h) FCI Englewood 1/19/01 Incident - No Report (a) Here the alleged threats were made against a fellow inmate who was locked in a separate cell. A threat of violence, especially when the possibility of carrying it out is illusory, constitutes warped bravado and are irrelevant to the grave decision between life
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and death. See ¶ 4 (g) above for relevant argument and authority.

(b) Any damage to the desk or the cell door is not an appropriate aggravating circumstance for jury consideration in a capital case.

(c) For the reasons specified above, this incident should be excluded under § 3593(c) because its probative value is outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury.

9. NOI ¶: C 1 (I) FCI Englewood 2/9/01 Incident ­ No Report

(a) This threat of violence, especially when the possibility of carrying it out was illusory, (William in locked cell; staff outside of cell) constitute warped bravado and is irrelevant to the grave decision between life and death. See ¶ 4 (g) above for relevant argument and authority.

(b) The vulgar language attributed to William is unduly prejudicial. The statements included: "who the fuck was in here shaking down my room"; [y]ou motherfuckers can't do this to me. I am a death row inmate and I don't play these fucking games with you people. Do you people understand that I came from Florence and I am
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here for killing a motherfucker"; "[y]ou had better respect me, because I am not like the rest of these guys in here and I will fuck you up, you motherfucker." (Proffer at 16). See United States v. Walker, 910 F. Supp. 837 (N.D.N.Y. 1995) (striking the nonstatutory aggravating factor of lack of remorse based upon statement we "killed the motherfucker", "in light of the obvious prejudice entailed by singling out and presenting this epithet . . . and in light of the numerous competing inferences which can be drawn from the use of such vulgarism, and overall, in light of the sheer triviality of this allegation as compared to the portentous purposes for which it is alleged").

(c) For the reasons specified above, this incident should be excluded under § 3593(c) because its probative value is outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury. 10. NOI ¶: C 1 (j) BOP Incident Reports 857603 & 857606 FCI Englewood 2/12/01 Rule Violations ­ assault and threatening bodily harm

(a) These incident involved violation of codes 101 for throwing coffee on an officer, 203 for threatening an officer with bodily harm, and 224 for attempting to bite a member of the use-of-force team. These incidents are irrelevant to the question of future dangerousness, that is, whether William "is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of
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others." (Document 1844 at 5). Violations of BOP rules are not criminal acts. As such, they are distinguishable from unadjudicated criminal conduct upon to which the Court refused to impose a per se ban. (Document 1836 at 31).

(b) To the extent throwing coffee may be considered a criminal "assault", it is of insufficient gravity to be appropriate for jury consideration. At the time, William was locked in his cell and Officer Hunt was in the sallyport ­ the area between the inner cell bars and the door to the hallway. The Officer subsequently received minor first aid, i.e., a cool compress was applied to his neck. In view of the fact that William was still in his cell at the time, there was no serious threat to the officer's life and safety.

(c) According to the proffer, William threatened to kill Officer Hunt. At the time, William was locked in his cell. A threat of violence, especially when the possibility of carrying it out is illusory, constitutes warped bravado and are irrelevant to the grave decision between life and death. See ¶ 4 (g) above for relevant argument and authority.

(d) The videotape does not show, either in William's cell or in the holding cell, an attempt to bite staff. Instead, the listener can hear one of the officers claiming that William was trying to bite when they were with him in the holding cell. None of the useof-force team reported injury, however.

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(e) For the reasons specified above, this incident and/or the videotape should be excluded under § 3593(c) because their probative value is outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury.

11. NOI ¶: C 1 BOP Incident Report 869064 ADX Florence 3/24/01 Rule Violations ­ assault and refusing to obey an order (a) This incident involved violation of code 307, failing to obey an order. As such, this aspect of the incident is irrelevant to the question of future dangerousness, that is, whether William "is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others." (Document 1844 at 5). Refusing an order of BOP staff is not a criminal act. As such, it is distinguishable from unadjudicated criminal conduct upon to which the Court refused to impose a per se ban. (Document 1836 at 31).

(b) While being moved during a monthly cell rotation from one cell to another immediately adjacent, i.e., 11-204 to 11-202, William allegedly failed to follow "a direct order to keep walking," by stopping twice, a couple of feet apart, and each time making an "aggressive turn" to his left. (Proffer at 18). What constitutes an "aggressive" turn is so subjective that the incident is insufficiently reliable. It is also irrelevant, particularly in view of the fact that the move was successfully accomplished by one officer holding
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William's handcuffs and the other pressing his baton against William's left side. No staff member was harmed.

(c) The alleged "assault" aspect of the incident occurred after William was locked inside his cell and the officer was standing within the sallyport. According to the discovery, William threw a bar of soap at the officer, hitting him on the shoulder. He also reached through the cell's bars and grabbed the officer's shirt, but released it immediately upon being struck in the arm by the officer's baton. These "assaults" and the supposed "verbal abuse" accompanying them are insufficiently grave to warrant jury consideration.

(d) For the reasons specified above, this incident should be excluded under § 3593(c) because its probative value is outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury.

12. NOI ¶: C 1 (l) BOP Incident Report No. 889220 ADX Florence Rule Violations ­ threatening staff, tampering or interfering with security device and failure to follow safety regulations (a) This incident related to William being taken to a local hospital by prison staff for testing. The rule violations related to William's conduct on the return trip to ADX. They are irrelevant to the NOI's charge of future dangerousness because they do not
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constitute criminal acts.

(b) The threats to staff inside the van were illusory and therefore irrelevant to future dangerousness. William could not remove his restraints and presumably the staff within the vehicle were separated from inmates by a protective screen. In any event, all concerned arrived at ADX safely.

(c) For the reasons specified above, this incident should be excluded under § 3593(c) because its probative value is outweighed by the danger of unfair prejudice, confusion of the issues and misleading the jury.

In evaluating the institutional-setting incidents, it is very important to keep two things in mind. First, many of the incidents are more indicative of William's mental illness and BOP's refusal to treat him, than they are of future dangerousness. The incidents listed in the proffer as ## 8-12 occurred after counsel was appointed and attempted to work with BOP to get it to provide William with appropriate medication. BOP obstinately refused to acknowledge the fact that William needed treatment. Counsel eventually filed a motion seeking the Court's assistance, but the Court denied the motion and deferred to BOP as William's custodian. Meanwhile, the government has argued that incidents such as # 8 (NOI ¶ C 1 (h)) can appropriately be used in aggravation because it "gives insight into the degree of anger experienced by the defendant." (Document 1736
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at 15(6)). We now know, however, that when properly medicated, William is cooperative and can more easily manage his anger, paranoia, and psychosis. In fact, the last institutional-setting incident included in the NOI and the proffer occurred on May 29, 2001, more than five years ago. Under these circumstances, it would be fundamentally unfair and a violation of due process to use those past incidents as grounds for a sentence of death. Second, rather than supporting a finding of future dangerousness, these incidents demonstrate that BOP staff can handle William without harm befalling themselves or other inmates. For example, after incident # 11 (NOI ¶ C 1 (k)), William was placed in a cell with plexiglass over the bar front, which eliminated any risk he might cause someone harm be reaching through the bars. Additionally, in the incidents listed in which BOP utilized a use-of-force team, the team members have reported no injuries. The institutional-setting incidents should be stricken. Conclusion In this case, the government's best evidence of future dangerousness in a prison setting is the charged offense and the charged statutory aggravating factor, "previous conviction of violent felony involving a firearm." 18 U.S.C. § 3592(c)(2). (The latter related to conduct inside a Saipan detention facility on March 9, 1999.) If the Court allows the jury to consider future dangerousness, the government's evidence should be so limited, because the additional incidents listed in the NOI and proffer ­ especially the
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CNMI convictions from over twenty years ago and the institutional setting incidents involving rule violations ­ are insufficiently relevant and/or reliable, are more unfairly prejudicial than probative, and their cumulative presentation will confuse and mislead the jury as to the true focus of its inquiry. More importantly, their presentation makes a mockery of the entire process and the profound moral decision the jury will be called upon to make, that is, whether William should be executed or whether he should be allowed to live, albeit without possibility of release from prison. 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

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CERTIFICATE OF SERVICE I hereby certify that on August 7, 2006 I electronically filed the foregoing William Sablan's Response To The Government's July 24, 2006 Proffer Regarding Future Dangerousness 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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