THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
FEDERAL DEATH PENALTY: SAMPLE INSTRUCTIONS
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10th Circuit Criminal Pattern Jury Instructions 2005

DEATH PENALTY INSTRUCTIONS

    Scope of Instructions
    3.01         Sentencing Choices and Responsibility
    3.02         Summary of Deliberative Process
    3.03         Evidence
    3.04         Special Findings For
    3.05         Age at Time of Offense
    3.06         Intent Requirement
    3.07         Aggravating and Mitigating Factors Generally
    3.08         Statutory Aggravating Factors
    3.08.1      Death Occurring During Commission of Another Crime
    3.08.2      Previous Conviction of Violent Felony Involving Firearm
    3.08.2.1   Firearm Defined
    3.08.2.2   Firearm Silencer and Firearm Muffler Defined
    3.08.2.3   Destructive Device Defined
    3.08.3      Previous Conviction of Offense for Which a Sentence of Death or 
                    Life Imprisonment Was Authorized
    3.08.4      Previous Conviction of Other Serious Offenses
    3.08.4.1   Exclusions to the Term ‘‘Felony’’
    3.08.5      Grave Risk of Death to Additional Persons
    3.08.6      Heinous, Cruel, or Depraved Manner of Committing the Offense
    3.08.7      Procurement of the Offense by Payment
    3.08.8      Pecuniary Gain
    3.08.9      Substantial Planning and Premeditation
    3.08.10    Conviction for Two Felony Drug Offenses
    3.08.11    Victim’s Vulnerability
    3.08.12    Conviction for Serious Federal Drug Offense
    3.08.13    Continuing Criminal Enterprise Involving Drug Sales to Minors
    3.08.14    High Public Officials
    3.08.15    Prior Conviction of Sexual Assault or Child Molestation
    3.08.16    Multiple Killings or Attempted Killings
    3.09         Non-Statutory Aggravating Factors
    3.10         Mitigating Factors
    3.10.1      Impaired Capacity
    3.10.2      Duress
    3.10.3      Minor Participation
    3.10.4      Equally Culpable Defendants
    3.10.5      No Prior Criminal History
    3.10.6      Disturbance
    3.10.7      Victim’s Consent
    3.10.8      Other Mitigating Factors
    3.11         Weighing Aggravation and Mitigation
    3.12         Right to Justice Without Discrimination
    Special Findings Form

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Comment

Scope of Instructions

These instructions have been prepared for homicide offenses, governed by the Federal Death Penalty Act (FDPA), 18 USC 3591 et seq. This reflects the most likely type of death penalty case, where the law relating to instructional issues has been developed to an extent that it may be set out in a set of standardized instructions. The instructions do not encompass capital offenses relating to continuing criminal enterprises, which implicate both the FDPA and a series of provisions in the Continuing Criminal Enterprise (CCE) statute, 21 USC 848(e)-(r)). The timing (FDPA was passed six years after the CCE death penalty provisions) and overlap of these statutes may well raise fundamental questions regarding comparative reach, potential conflict, implicit repeal, and potential reconciliation that have simply not been addressed in the case law. Any set of instructions would, from the outset, necessarily presume/imply answers to these questions. These pattern instructions are limited to homicides.

To avoid proliferation of alternative instructions and bracketed language, this set of instructions is drafted for the basic case in which the jury must choose between a sentence of death and a sentence of life without possibility of release. The adjustments necessary to accommodate other sentencing choices, though unwieldy and impractical for pattern instructions, should be a straightforward matter in any particular case.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

Members of the jury, you have unanimously found the defendant, [_______], guilty of [_______] as charged in count [_______] of the indictment. This offense is punishable by death or by imprisonment for life without possibility of release. The choice between these alternatives is left exclusively to you. Your unanimous decision will be binding on the court, and I will impose sentence on the defendant according to your choice. If you cannot unanimously agree on the appropriate punishment, I will sentence the defendant to life imprisonment without possibility of release.

"Upon a [jury's] recommendation under [the Federal Death Penalty Act, 18 USC 3591 et seq.] that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly." 18 USC 3594. As explained in Jones v. United States, 527 U.S. 373, 380–81 (1999), if the jury is unable to reach a unanimous verdict, the sentencing determination passes to the court (i.e., the court does not discharge the jury and hold a second sentencing hearing, which was the view expressed in the circuit decision under review, United States v. Jones, 132 F.3d 232, 242–43 (5th Cir. 1998)). When the sentencing options are limited to death or life without possibility of release (which is the basic case this set of instructions is drafted to cover), there is only one sentence the court may impose. Thus, if the jury does not unanimously agree on a death sentence, it has effectively chosen a sentence of life without possibility of release, regardless of whether the jurors unanimously agreed on that alternative sentence, and it makes no sense to ask the jury whether they have done so. Therefore these instructions are most naturally written simply to ask the jury whether they have unanimously agreed on a death sentence and, if not, to direct them to indicate that a sentence of life without release should be imposed. Although a jury need not as a general matter always be told the consequences of their failure to return a unanimous verdict, Jones, 527 U.S. at 381–83, in this context it seems to be the most straightforward approach.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

Let me summarize the deliberative process you must follow in considering the sentencing decision before you. After this broad summary, I will discuss specific matters in more detail.

Your deliberations will be organized into two separate steps, each with its own distinct focus. First, you must determine whether the defendant is eligible for a sentence of death. Unless and until you find that the defendant is eligible for a death sentence, it is improper for you even to consider whether such a sentence would be justified. Second, if you find the defendant is eligible for a death sentence, you must determine whether such a sentence is justified and, thus, must be imposed.

Eligibility for death sentence: To find the defendant eligible for a death sentence, you must be convinced that the government has proved each of the following beyond a reasonable doubt:

First: the defendant was at least eighteen years old when the capital offense was committed;

Second: the defendant acted with a level of intent sufficient to allow consideration of the death penalty, which may be different than the intent required to convict the defendant of the offense, and

Third: the existence of at least one statutory aggravating factor.

Aggravating factors will be explained in a later instruction, but generally they reflect circumstances that tend to support imposition of the death penalty, just as mitigating factors reflect circumstances that tend to suggest a sentence of death should not be imposed. If you find that any one or more of these three eligibility conditions has not been proved beyond a reasonable doubt by the government, the defendant is not eligible for a sentence of death, and your deliberations are over. If you find that the government has proved beyond a reasonable doubt that all of these conditions are satisfied, the defendant is eligible for a death sentence and you must proceed to the next stage of deliberations, to decide whether such a sentence is justified.

Justification and selection of sentence: The justification stage, which focuses on all relevant aggravating and mitigating factors, is broken down into two steps. First, you must determine what factors have been proved. As for the aggravating factors, you must unanimously determine that the government has proved beyond a reasonable doubt any additional statutory or non-statutory factors relied upon to support the death sentence. In contrast, the defendant may prove mitigating factors by just a preponderance of the evidence. Moreover, it is up to each juror to decide individually whether any mitigating factor exists–there is no requirement that the defendant establish mitigating factors unanimously.

The second step involves a weighing process. You must decide whether the proved aggravating factors outweigh the proved mitigating factors sufficiently to justify the death sentence. (If you do not find any mitigating factors, you still must decide whether the aggravating factors are sufficient to justify imposition of a death sentence.) If you determine as a result of this weighing process that the factors do not justify a death sentence, such a sentence may not be imposed, and your deliberations are over.

If you determine that the factors do justify a death sentence, that sentence must be imposed. But as I will instruct you, weighing aggravating and mitigating factors is not a mechanical process, and the judgment involved is exclusively yours. Whatever findings you make with respect to aggravating and mitigating factors, the result of the weighing process is never foreordained. For that reason a jury is never required to impose a sentence of death. At this last stage of your deliberations, it is up to you to decide whether, for any proper reason established by the evidence, you choose not to impose such a sentence on the defendant.

Any decision to impose a sentence of death must be unanimous.

There is the appearance of a debate in the case law as to whether the jury should be instructed that it is "never required to impose a death sentence" in capital cases under 18 USC 3591. Congress has expressly required the instruction in continuing criminal enterprise cases under 21 USC 848(k), but has not explicitly required (or prohibited) such an instruction in conjunction with § 3593. A provision similar to that in § 848(k) was deleted from § 3593 in the course of its passage, but the reason is not clear. For a thorough discussion of the relevant legislative history, see United States v. Haynes, 265 F. Supp. 2d 914, 917–20 (W.D. Tenn. 2003). Many cases reflect use of the "never required" (or a substantively identical) instruction in connection with § 3593. See, e.g., United States v. Higgs, 353 F.3d 281, 331–32 (4th Cir. 2003); United States v. Paul, 217 F.3d 989, 999 (8th Cir. 2000); United States v. Jones, 132 F.3d 232, 244 (5th Cir. 1998), aff'd, 527 U.S. 373 (1999); Haynes, 265 F. Supp. 2d at 914–15, 922 (holding instruction appropriate, and noting nine other district court cases using instruction which were not disturbed on appeal). The Eighth Circuit, however, has held that the defendant is not entitled to such an instruction under § 3593 because, "[b]ased upon the plain language of the statute, once a jury makes a final unanimous determination that a sentence of death is justified, then the [Federal Death Penalty Act] requires its imposition." United States v. Allen, 247 F.3d 741, 780 (8th Cir. 2001), vacated on other grounds, 536 U.S. 953 (2002), reaff'd in United States v. Ortiz, 315 F.3d 873, 900–01 (8th Cir. 2002).

On a close reading of the relevant cases, however, the debate here is really about when, not whether, the jury exercises the discretion reflected in the "never required" instruction. Even in Allen, the Eighth Circuit acknowledged that "the jury exercises complete discretion in its determination of whether the aggravating factors outweigh the mitigating factors" and should be so informed. Allen, 247 F.3d at 781. The Eighth Circuit's point in connection with the "never required" instruction was that once the jury has made this determination and found that a death sentence is justified, it is then required to impose that sentence (and, thus, it is incorrect to broadly instruct the jury, without specific reference to the weighing process, that it is never required to impose a death sentence). See id. at 781–82; Ortiz, 315 F.3d at 900–01. This nuanced view is strongly supported, if not dictated, by the terms of § 3591(a), which states that the defendant "shall be sentenced to death if, after a consideration of the factors set forth in section 3592 in the course of a hearing held pursuant to section 3593, it is determined that imposition of a sentence of death is justified." (Emphasis added). See Allen, 247 F.3d at 781–82 (discussing interplay between § 3591(a) and § 3593(e)). Indeed, the Haynes decision cited above, which specifically held that a "never required" instruction should be given in § 3593 cases, expressly notes its agreement with Allen on this point, citing the same interplay between §§ 3591(a) and 3593(e) and explaining that once the jury has decided that a death sentence is proper based on the weighing process in § 3593(e), "the jury is no longer entitled to exercise discretion with respect to that decision." Haynes, 265 F.Supp.2d at 916–17, 922–23. In sum, the debate over the "never required" instruction dissolves if the instruction is tied to the weighing process and resultant finding that a death sentence is justified under § 3593(e); the jury just should not be instructed in a way that suggests that once they have concluded that their discretionary weighing of aggravating and mitigating circumstances directs a death sentence, they retain some last reservoir of essentially undirected discretion to withhold the penalty that they have unanimously found should be imposed under the § 3593(e) scheme. The pattern instruction is drafted in accordance with this understanding.

We note that, though it was never an issue in the appellate proceedings, the jury charge in the trial underlying the Jones case cited above included a "never required" instruction placed immediately after an instruction telling the jury that "if you unanimously conclude that the aggravating factors found to exist sufficiently outweigh any mitigating factor or factors found to exist ... to justify a sentence of death, ... you may recommend a sentence of death." Jones, 132 F.3d at 244, 527 U.S. at 385. This sequence of instructions seems to suggest that the jury need not impose a death sentence even after determining it was justified by the § 3593(e) weighing process. For the reasons stated above, that suggestion appears contrary to the plain language of § 3591(a), and the pattern instructions have been drafted so as to avoid such a suggestion.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

3.03
EVIDENCE

Volume 17: Death Penalty (Chapters 301-304)

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

3.05
AGE AT TIME OF OFFENSE

Volume 17: Death Penalty (Chapters 301-304)

Before you may consider whether the death penalty is an appropriate sentence in this case, you must unanimously find beyond a reasonable doubt that the government has proved the defendant was at least eighteen (18) years old at the time of the offense. If you do so find, answer "yes" on the appropriate page of the Special Findings Form and continue your deliberations. If you do not so find, answer "no" on the Form, sign Verdict III–B (Life Imprisonment), and certify your decision as described in section IV of the Form, which will conclude your deliberations.

Comment

"[N]o person may be sentenced to death who was less than 18 years of age at the time of the offense." 18 USC 3591(a).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

3.06
INTENT REQUIREMENT

Volume 17: Death Penalty (Chapters 301-304)

Before you may consider whether the death penalty is an appropriate sentence in this case, you must unanimously find beyond a reasonable doubt that the government proved that, in committing the offense charged in count [ ___ ], the defendant committed one of the following acts:

1. intentionally killed the victim;

2. intentionally inflicted serious bodily injury that resulted in the death of the victim;

3. intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a result of the act; or

4. intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act. (Please refer to note (1) of the Use Note and modify this instruction as appropriate.)

These alternatives are set out in the Special Findings Form, and you must consider and resolve them separately. For each one, you must decide whether you unanimously agree that it has been proved beyond a reasonable doubt, (Please refer to note (2) of the Use Note and modify this instruction as appropriate), and indicate your answer on the Form, and then continue with the next until you have finished. If you answer "no" to all four alternatives, your deliberations are over. Sign Verdict III–B (Life Imprisonment), and certify your decision as described in section IV of the Form. If you answer "yes" to one or more, proceed to the next step in your deliberations.

(1) 18 USC 3591(a)(2)(A)-(D). "The best way to comply with section 3591(a)(2) is to actually use the language of the statute in the jury instruction." United States v. Paul, 217 F.3d 989, 997 (8th Cir. 2000). These intent findings are, in the section 3591 context, conditions of eligibility and not aggravating factors to be considered in the weighing process–as the intent requirements are in death penalty cases under the continuing criminal enterprise statute, 21 USC 848(k). In section 848 cases, there is a concern that allowing multiple intent findings could create a set of duplicative aggravating factors that will accumulate on the aggravation side of the scale and unconstitutionally skew the weighing process in favor of the death penalty. See, e.g., United States v. McCullah, 87 F.3d 1136, 1137–38 (10th Cir. 1996) (on denial of reh'g). While the eligibility factors in section 3591 cases do not present this difficulty, it may be prudent to suggest that the court instruct only on those intent findings that are clearly supported by the evidence, to avoid unnecessarily stacking the deck against the defendant.

(2) The statute is arguably ambiguous as to the nature of the unanimity that is required here: must the jury unanimously agree on a particular one of the listed forms of intent, or is it sufficient if the jury unanimously finds that at least one of the forms of intent applies though they do not necessarily agree on which one? And, given the Supreme Court's splintered decision in Schad v. Arizona, 501 U.S. 624 (1991), it is not entirely clear whether, if Congress intended to require only the latter "weak" form of unanimity, the statute would be constitutional. To avoid creating constitutional complications, the pattern instruction and Special Findings Form require the strong form of jury unanimity on this crucial eligibility finding. This is consistent with the approach followed in the Fifth Circuit. See United States v. Webster, 162 F.3d 308, 323 (5th Cir. 1998).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

3.07
AGGRAVATING AND MITIGATING FACTORS GENERALLY

Volume 17: Death Penalty (Chapters 301-304)

Although it is left solely to you to decide whether the death penalty should be imposed, Congress has narrowed and channeled your discretion in specific ways, particularly by directing you to consider and weigh aggravating and mitigating factors presented by the case. These factors guide your deliberations by focusing on certain circumstances surrounding the crime, [characteristics of the victim], and personal traits, character, and background of the defendant.

Aggravating factors are considerations that tend to support imposition of the death penalty. The government is required to specify the factors it relies on, and your deliberations are constrained by its choice. Even if you believe that the evidence reveals other aggravating factors, you may not consider them.

Mitigating factors are considerations that suggest that a sentence of death should not be imposed. They need not justify or excuse the defendant's conduct, but they do suggest that a punishment less than death may be sufficient to do justice in the case.

Aside from the condition that the government prove at least one statutory aggravating factor, your task is not simply to decide whether, which, or how many aggravating and mitigating factors are present in the case. You also must evaluate and weigh such factors and, ultimately, make a unique individualized judgment about the justification for and appropriateness of the death penalty as a punishment for the defendant.

"[T]he attorney [for the government] shall, a reasonable time before the trial ... sign and file with the court, and serve on the defendant, a notice ... setting forth the aggravating factor or factors that the government, if the defendant is convicted, proposes to prove as justifying a sentence of death." 18 USC 3593(a)(2). "The government may present any information relevant to an aggravating factor for which notice has been provided under subsection (a)." Id., § 3593(c) (emphasis added); see also 18 USC 3592(b) (directing that the jury "shall consider each of the ... aggravating factors for which notice has been given"). The same statutes do not similarly limit the presentation of mitigating factors by the defense. See id., § 3592(a) (directing that the jury "shall consider any mitigating factor"); id., § 3593(c) ("[t]he defendant may present any information relevant to a mitigating factor"). And the Constitution requires that the defendant be allowed to raise any aspect of his character or background and circumstance of the offense in mitigation. See Penry v. Johnson, 532 U.S. 782, 797 (2001); Penry v. Lynaugh, 492 U.S. 302, 319–28 (1989), abrogated on other grounds by Atkins v. Virginia, 536 U.S. 304 (2002); Lockett v. Ohio, 438 U.S. 586, 604 (1978)(Burger, C.J., dissenting).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

3.08
STATUTORY AGGRAVATING FACTORS

Volume 17: Death Penalty (Chapters 301-304)

Before you may consider whether the death penalty is an appropriate sentence for the defendant, you must unanimously find beyond a reasonable doubt that the government has proved at least one of the following aggravating factors prescribed by Congress and alleged by the government in this case:

[Insert the appropriate statutory aggravating factors]

There are specific factual circumstances that must be established by proof beyond a reasonable doubt for each of these statutory aggravating factors. These will be explained in individual instructions to follow.

The statutory aggravating factors are set out in the Special Findings Form and you must consider and resolve them separately. You must decide for each one whether you unanimously agree that it has been proved beyond a reasonable doubt, indicate your answer on the Form, and continue until you have finished with them all. If you answer "no" to all of the statutory aggravating factors, sign Verdict III–B (Life Imprisonment) and certify your decision as described in section IV of the Form, which will conclude your deliberations. If you answer "yes" to one or more of the statutory factors, proceed to the next step in your deliberations, which involves consideration of any non-statutory aggravating factors.

Comment

The statutory aggravating factors are listed in 18 USC 3592(c)(1)-(16). "The burden of establishing the existence of any aggravating factor is on the government, and is not satisfied unless the existence of such a factor is established beyond a reasonable doubt." 18 USC 3593(c). And "[a] finding with respect to any aggravating factor must be unanimous." Id. § 3593(d).

Instructions defining and explaining many of the sixteen statutory aggravating factors appear following this instruction, and are numbered 3.08 et seq. (Subsidiary instructions are designated, for example, as 3.08.1 et seq.).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the victim's death, or injury resulting in death, occurred during the commission or attempted commission of, or during the immediate flight from the commission of [insert relevant crime from among those listed in 18 USC 3592(c)(1)].

Comment

18 USC 3592(c)(1).

This instruction should also include the elements of the specific crime during which the killing is alleged to have occurred. See United States v. McVeigh, 944 F. Supp. 1478, 1490 (D. Colo. 1996).

The government can allege that the killing(s) occurred during more than one of the crimes specified in 18 USC 3592(c)(1). See McVeigh, 944 F.Supp. at 1489. In such a case, however, the instructions should "clearly advise [jurors] that these [several] offenses are simply multiple means for determining that this single aggravating factor, a killing in the course of another offense, is shown to exist." Id. Furthermore, "the jury can be required by a special interrogatory to show unanimity in finding which of the underlying offenses they rely on if an affirmative finding is made with respect to this ... aggravating factor." Id.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant was previously convicted of [insert name of felony], a felony involving the [use] [attempted use] or [threatened use] of a firearm against another person. If you are convinced that the government has, in fact, proved beyond a reasonable doubt that the defendant was previously convicted of [insert name of felony], you are instructed that [insert name of felony] is, in fact, a felony.

18 USC 3592(c)(2).

This aggravating factor applies to capital offenses "other than an offense for which a sentence of death is sought on the basis of [18 USC] section 924(c)." 18 USC 3592(c)(2).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

A firearm is (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; or (B) the frame or receiver of any such weapon; or (C) any firearm muffler or firearm silencer; or (D) any destructive device. A firearm, however, does not include an antique firearm.

Comment

18 USC 921(a)(3).

Refer to 18 USC 921(a)(16) for definition of "antique firearm."

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

The terms "firearm silencer" and "firearm muffler" mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in assembly or fabrication.

Comment

18 USC 921(a)(24).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

A destructive device is:

(A) any explosive, incendiary, or poison gas—(1) a bomb, or (2) grenade, or (3) rocket having a propellant charge of more than four ounces, or (4) missile having an explosive or incendiary charge of more than one-quarter ounce, or (5) mine, or (6) device similar to any of those devices; or

(B) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; or

(C) any combination of parts either designed or intended for use in converting any device into any destructive device described above and from which a destructive device may be readily assembled.

A destructive device, however, does not include any device (1) that is neither designed nor redesigned for use as a weapon; (2) any device, although originally designed for use as a weapon, that is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; or (3) surplus ordinance sold, loaned, or given by the Secretary of the Army.

18 USC 921(a)(4).

Use Note

This definition of a destructive device excludes a shotgun and a shotgun shell that the "Attorney General [of the United States] finds [are] generally recognized as particularly suitable for sporting purposes." 18 USC 921(a)(4).

This definition also excludes "any other device which the Attorney General [of the United States] finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes." Id.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant was previously convicted of [insert name of other offense], another offense resulting in the death of a person for which a sentence of life imprisonment or a sentence of death was authorized by statute. If you are convinced that the government has, in fact, proved beyond a reasonable doubt that the defendant was previously convicted of [insert name of other offense], you are instructed that [insert name of other offense] is, in fact, an offense for which a sentence of life imprisonment or a sentence of death was authorized by statute.

18 USC 3592(c)(3).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant was previously convicted of two or more felonies committed on different occasions; that is, he was convicted of committing [insert name of felony] on [insert date that felony was committed] and [insert name of felony] on [insert date that felony was committed] each involving infliction of, or attempted infliction of, serious bodily injury or death upon another person. If you are convinced that the government has, in fact, proved beyond a reasonable doubt that the defendant was previously convicted of [insert names of previous felonies and dates], you are instructed that [insert names of previous felonies] are, in fact, felonies involving the infliction of, or attempted infliction of, serious bodily injury or death upon another person.

18 USC 3592(c)(4).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

3.08.4.1
EXCLUSIONS TO THE TERM "FELONY"

Volume 17: Death Penalty (Chapters 301-304)

The term "felony" does not include:

(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business, or

(B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment for two years or less.

18 USC 921(a)(20).

This instruction is only to be used if the defendant was convicted of one of the previous offenses referred to in Instr. 3.08.4.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant, in committing the offense, or in escaping apprehension for committing the offense, knowingly created a grave risk of death to one or more persons, in addition to the victim(s) of the offense. In this case [insert government specification of grave risk].

18 USC 3592(c)(5); compare United States v. Barnette, 211 F.3d 803, 819 (4th Cir. 2000), with United States v. McVeigh, 944 F. Supp. 1478, 1490 (D. Colo. 1996).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

3.08.6
HEINOUS, CRUEL, OR DEPRAVED MANNER OF COMMITTING THE OFFENSE

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant committed the offense in an especially heinous, cruel, or depraved manner in that it involved either torture or serious physical abuse to the victim.

Torture includes severe mental as well as physical abuse. For such abuse to amount to torture, the victim must have been conscious of it at the time it was inflicted. Further, the defendant must have specifically intended to inflict severe mental or physical pain upon the victim, apart from killing the victim.

On the other hand, serious physical abuse may be inflicted regardless of whether the victim is conscious of the abuse at the time it was inflicted. The defendant, however, must have specifically intended the abuse, apart from the killing. Serious physical abuse means a significant or considerable amount of injury or damage to the victim's body which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

Pertinent factors which you may consider in determining whether a killing was especially heinous, cruel, or depraved include:

[Insert factors as appropriate].

Comment

18 USC 3592(c)(6); United States v. Chanthadara, 230 F.3d 1237, 1261–62 (10th Cir. 2000); see also, e.g., United States v. Jones, 132 F.3d 232, 249–50 & 250 n.12 (5th Cir. 1998), aff'd on other grounds, 527 U.S. 373 (1999).

The phrase "especially heinous, cruel, or depraved," by itself, is unconstitutionally vague. See, e.g., Maynard v. Cartwright, 486 U.S. 356, 363–64 (1988) (addressing similar aggravating factor applying when murder was especially heinous, atrocious, or cruel). Nonetheless, the statutory language limiting this aggravating factor to situations involving torture or serious physical abuse cures any vagueness problems. See, e.g., Walton v. Arizona, 497 U.S. 639, 654–55 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 588–89 (2002); see also Cartwright, 486 U.S. at 364–65.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

3.08.7
PROCUREMENT OF THE OFFENSE BY PAYMENT

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value. "Anything of pecuniary value" means anything in the form of money, property, or anything else having some economic value, benefit, or advantage.

Comment

18 USC 3592(c)(7).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value. "Anything of pecuniary value" means anything in the form of money, property, or anything else having some economic value, benefit, or advantage. The defendant must have expected to receive this pecuniary gain as a result of the victim's death.

Comment

18 USC 3592(c)(8); United States v. Chanthadara, 230 F.3d 1237, 1263–64 (10th Cir. 2000).

Particularly where the capital offense is felony murder, the instruction should make clear that the defendant must have expected the pecuniary gain involved to result from the killing itself, and not an underlying felony, such as robbery. See Chanthadara, 230 F.3d at 1263–64.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant committed the offense after substantial planning and premeditation to cause the death of a person or commit an act of terrorism. "Substantial planning" means planning that is ample or considerable for the commission of the crime at issue.

18 USC 3592(c)(9); see United States v. McCullah, 76 F.3d 1087, 1110–11 (10th Cir. 1996) (applying similar aggravating factor, 21 USC 848(n)(8)).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant was previously convicted of two or more felonies committed on different occasions; that is, defendant was convicted of committing [insert name of previous felony] on [date felony was committed] and [name of previous felony] on [date felony was committed], each involving the distribution of a controlled substance. If you are convinced that the government has, in fact, proved beyond a reasonable doubt that the defendant was previously convicted of [insert names of previous felonies and dates], you are instructed that [insert names of previous felonies] are, in fact, felonies involving the distribution of a controlled substance.

18 USC 3592(c)(10).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

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You must unanimously find that the government has proved beyond a reasonable doubt that the victim was particularly vulnerable due to old age, youth, or infirmity.

18 USC 3592(c)(11).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant was previously convicted of [insert name of offense], which is [an offense violating title II or III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 for which a sentence of five or more years may be imposed], or [a continuing criminal enterprise]. If you are convinced that the government has, in fact, proved beyond a reasonable doubt that the defendant was previously convicted of [insert name of offense], you are instructed that [insert name of offense] is [an offense violating title II or III of the Comprehensive Drug Abuse Prevention and Control Act of 1970 for which a sentence of five or more years may be imposed] or [a continuing criminal enterprise].

18 USC 3592(c)(12); see also 21 USC 848(c) (regarding continuing criminal enterprise).

The Fourth Circuit has held that this "aggravating factor encompasses all predicate convictions occurring prior to [the capital] sentencing, even those occurring after the conduct giving rise to the capital charges." United States v. Higgs, 353 F.3d 281, 318 (4th Cir. 2003).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant committed the offense in the course of engaging in a continuing criminal enterprise, and that violation involved distributing drugs to persons under the age of twenty-one and defendant is a person over the age of eighteen.

A person engages in a continuing criminal enterprise if (1) he commits [a felony defined in 21 USC 848(c)] and (2) that offense was part of a continuing series of offenses [specified in 21 USC 848(c)(1)] (A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and (2) from which such person obtains substantial income or resources.

18 USC 3592(c)(13); 21 USC 848(c), 859.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

You must unanimously find that the government has proved beyond a reasonable doubt that the defendant committed the offense against:

(A) the President of the United States, the President-elect, the Vice President, the Vice President-elect, the Vice President-designate, or, if there is no Vice President, the officer next in order of succession to the office of the President of the United States, or any other person who is acting as President under the Constitution and laws of the United States; or

(B) a chief of state, head of government, or the political equivalent, of a foreign nation; or

(C) a foreign official, who is a Chief of State or the political equivalent, President, Vice President, Prime Minister, Ambassador, Foreign Minister, or other officer of Cabinet rank or above of a foreign government or the chief executive officer of an international organization, or any person who has previously served in such capacity, and any member of his family, in the United States on official business; or

(D) a Federal public servant who is a judge, a law enforcement officer, or an employee of a United States penal or correctional institution (i) while he or she is engaged in the performance of his or her official duties; or (ii) because of the performance of his or her official duties; or (iii) because of his or her status as a public servant. "Law enforcement officer" means a public servant authorized by law or a Government agency or Congress to conduct or engage in the prevention, investigation, or prosecution or adjudication of an offense, and includes those engaged in corrections, parole, or probation functions.

18 USC 3592(c)(14); 18 USC 1116(b)(3)

This instruction should be tailored to address the specific facts of a given case.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

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You must unanimously find that the government has proved beyond a reasonable doubt that the defendant was previously convicted of [insert name of previous offense], which is a crime of [sexual assault] [child molestation]. If you are convinced that the government has, in fact, proved beyond a reasonable doubt that the defendant was previously convicted of [insert name of previous offense], you are instructed that [insert name of previous offense] is a crime of [sexual assault] [crime of child molestation].

18 USC 3592(c)(15).

This aggravating factor is available only when the capital offense involves sexual abuse under chapter 109A, or sexual abuse of children under chapter 110. 18 USC 3592(c)(15).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

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You must unanimously find that the government has proved beyond a reasonable doubt that the defendant intentionally killed or attempted to kill more than one person in a single criminal episode.

Comment

18 USC 3592(c)(16).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

The government has also alleged the existence of non-statutory aggravating factors in this case. These factors tend to support imposition of the death penalty, though they have not been specifically listed by Congress. The factors alleged by the government are:

[Insert the appropriate non-statutory aggravating factors]

These non-statutory aggravating factors are set out in the Special Findings Form and, just as with the statutory factors, you must consider them separately. You must decide for each one whether you unanimously agree that it has been proved by the government beyond a reasonable doubt, indicate your answer on the Form, and continue until you have finished with them all. Regardless of your findings on these non-statutory factors, you must proceed to the next step in your deliberations, which involves consideration of mitigating factors.

In addition to the aggravating factors specified by Congress, "[t]he jury ... may consider whether any other aggravating factor for which notice has been given exists." 18 USC 3592(c). The courts have held that "the prosecutor's authority to define non-statutory aggravating factors is a constitutional delegation of Congress' legislative power." United States v. Paul, 217 F.3d 989, 1003 (8th Cir. 2000) (following United States v. Jones, 132 F.3d 232, 239–40 (5th Cir. 1998), aff'd, 527 U.S. 373 (1999)); see also United States v. McCullah, 76 F.3d 1087, 1106–07 (10th Cir. 1996) (upholding similar delegation of authority to specify non-statutory aggravating factors under 21 USC 848).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

3.10
MITIGATING FACTORS

Volume 17: Death Penalty (Chapters 301-304)

The law never assumes or presumes that a defendant should be sentenced to death. Accordingly, the defense is under no obligation to establish the existence of any mitigating factors (or to disprove the existence of any aggravating factors). A defendant may, of course, choose to argue specific mitigating factors, and the defendant has offered evidence on the following factors in this case:

[Insert mitigating factors.]

The defendant need only prove these mitigating factors by a preponderance of the evidence; that is, by evidence sufficient to persuade you that the factor is more likely present than not present. (Please refer to note (1) of the Use Note and modify this instruction as appropriate.) And the law does not require unanimous agreement with regard to mitigating factors. Any juror may find the existence of a mitigating factor and must then consider that factor in weighing the aggravating and mitigating factors even though other jurors may not agree that the particular mitigating factor has been established. (Please refer to note (2) of the Use Note and modify this instruction as appropriate.) Moreover, any juror may consider a mitigating factor found by another juror, even if he or she did not concur in that finding. (Please refer to note (3) of the Use Note and modify this instruction as appropriate.)

Your discretion in considering mitigating factors is much broader than your discretion in considering aggravating factors. The law permits you to consider any other relevant mitigating information presented in this proceeding, in addition to the specific factors recited above, so long as its existence was proved by a preponderance of the evidence. "Relevant mitigating information" includes anything in the defendant's background, record, character, or any circumstances of the offense, which suggests to you that a sentence of death should not be imposed. (Please refer to note (4) of the Use Note and modify this instruction as appropriate.) Throughout these instructions, references to mitigating factors should be understood to include other relevant mitigating information.

Record your findings as to the mitigating factors as indicated by the Special Findings Form. (Please refer to note (5) of the Use Note and modify this instruction as appropriate.) Regardless of your findings as to these factors, however, you must proceed to the next step in your deliberations, which involves weighing aggravating and mitigating factors.

(1) "The burden of establishing the existence of any mitigating factor is on the defendant, and is not satisfied unless the existence of such a factor is established by a preponderance of the information." 18 USC 3593(c). In contrast to the unanimity required for aggravating factors, "[a] finding with respect to a mitigating factor may be made by 1 or more members of the jury." Id., § 3593(d).

(2) The instruction explains how non-unanimous mitigating factors fit into the weighing process. Accommodating the mandatory directive in § 3593(e) that the jury "shall consider ... all the mitigating ... factors found to exist" with the qualification in § 3593(d) that a non-unanimous factor is to be considered by "any member of the jury who finds the existence of [that] mitigating factor" (emphasis added), the instruction states that inclusion of non-unanimous mitigating factors in the weighing process is mandatory–as it is with all proven factors–for any juror who finds they exist. United States v. Jackson, 327 F.3d 273, 301–02 (4th Cir. 2003) (discussing § 3593(d) & (e) and approving instruction directing that "[a]ny juror who is persuaded of the existence of a mitigating factor must consider it"); see United States v. Paul, 217 F.3d 989, 999 (8th Cir. 2000) (approving instruction insofar as it directed jurors that "each of you must weigh any mitigating factors that you individually find to exist").

(3) The instruction follows the practice of the Eighth Circuit in permitting (but not requiring) each juror to weigh mitigating factors found by other jurors even if that juror did not find the factors himself. See Model Jury Instructions for the District Courts of the Eighth Circuit, FEDCRIM–JI8, 12.09 (Westlaw database); United States v. Paul, 217 F.3d 989, 999 (8th Cir. 2000). The Fifth Circuit disagrees with this approach. See United States v. Webster, 162 F.3d 308, 327 (5th Cir. 1998). The Committee chose to follow the Eighth Circuit practice favoring the defendant, absent authoritative guidance from the Tenth Circuit.

(4) The defendant may frame and rely on mitigating factors not prescribed by Congress (the counterpart to the prosecution's non-statutory aggravating factors). 18 USC 3592(a)(8). In addition, the Supreme Court has repeatedly held that substantive or procedural limitations (statutory, evidentiary, instructional) on a jury's meaningful consideration of all relevant mitigating information violate constitutional guarantees. See, e.g., Penry v. Johnson, 532 U.S. 782, 796–804 (2001); Skipper v. South Carolina, 476 U.S. 1, 4 (1986); Lockett v. Ohio, 438 U.S. 586, 605 (1978) (plurality opinion, adopted by majority in Eddings v. Oklahoma, 455 U.S. 104, 110 (1982)). Adhering to the consistent thrust of these decisions, the pattern instruction tells the jury it is free to consider all relevant mitigating evidence, without any preemptive limitation to just the categories of mitigation explicitly framed by Congress or the defendant. The definition of "relevant mitigating evidence" is the standard formulation derived from Lockett. See, e.g., Coleman v. Saffle, 869 F.2d 1377, 1392 (10th Cir. 1989) (quoting Lockett, 438 U.S. at 604).

(5) Regarding the return of special findings on mitigating factors, the statute permits but does not require the jury to return such findings. 18 USC 3593(d) (requiring special findings only as to aggravating factors); see United States v. Paul, 217 F.3d 989, 999 n.6 (8th Cir. 2000); United States v. Chandler, 996 F.2d 1073, 1087 (11th Cir. 1993). The instruction (and associated section of the Special Findings Form) is drafted on the assumption that the court will direct the jury to return special findings on mitigation. There are two prudential reasons to encourage doing this. First, such findings facilitate meaningful judicial review of death sentences (including assisting an appellate court with prejudice/harmless error determinations with respect to various other instructions). See generally Paul, 217 F.3d at 999 n.6 (questioning whether review of challenge regarding proper effectuation of mitigating evidence was possible absent special findings on the matter). Second, "equal treatment" of mitigating and aggravating factors in this way avoids any implicit suggestion that decisions with respect to mitigating factors are less important and/or subject to less searching scrutiny than those with respect to the aggravating factors.

It should be noted, however, that one circuit has read into the permissive statutory language of 21 USC 848(k)–which is the same in this respect as § 3593(d)–a novel idea about the respective authority of the trial court and jury here that conflicts with the recommended approach. In Chandler, the Eleventh Circuit held not that it was up to the trial court to decide whether to instruct the jury to return special findings on mitigation, but that it was up to the jury to decide whether they wished to do so: "we find that Section 848 requires that the jury be instructed that it has the option to return written findings of mitigating factors if it so chooses." Chandler, 996 F.2d at 1087. As a general matter, decisions about the content and use of special verdicts–like decisions about the instructions they are analogous to–are reserved to the discretionary judgment of the trial court. United States v. Reed, 147 F.3d 1178, 1180 (9th Cir. 1998); see Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1249 (10th Cir. 1998) (following Reed); United States v. Ellis, 168 F.3d 558, 562 (1st Cir. 1999) (same). There is nothing in the statute to suggest that this decision about trial procedure is to be delegated by the trial court to the jury.

Use Note

Instructions defining and explaining the eight statutory mitigating factors follow this instruction, beginning with Instruction 3.10.1.

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

At least one of you must find that the defendant has proved by a preponderance of the evidence that the defendant's capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of law was significantly impaired, even though his capacity was not so impaired as to constitute a defense to the charge.

18 USC 3592(a)(1).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

At least one of you must find that the defendant has proved by a preponderance of the evidence that the defendant was under unusual and substantial duress, even though the duress was not of such a degree as to constitute a defense to the charge.

18 USC 3592(a)(2).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

3.10.3
MINOR PARTICIPATION

Volume 17: Death Penalty (Chapters 301-304)

At least one of you must find that the defendant has proved by a preponderance of the evidence that the defendant's participation in the offense was relatively minor, even though the defendant's participation was not so minor as to constitute a defense to the charge.

Comment

18 USC 3592(a)(3).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

At least one of you must find that the defendant has proved by a preponderance of the evidence that another defendant or defendants, equally culpable in the crime, will not be punished by death.

18 USC 3592(a)(4).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

3.10.5
NO PRIOR CRIMINAL HISTORY

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At least one of you must find that the defendant has proved by a preponderance of the evidence that the defendant did not have a significant prior history of other criminal conduct.

18 USC 3592(a)(5).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

At least one of you must find that the defendant has proved by a preponderance of the evidence that the defendant committed the offense under severe mental or emotional disturbance.

18 USC 3592(a)(6).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

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At least one of you must find that the defendant has proved by a preponderance of the evidence that the victim consented to the criminal conduct that resulted in the victim's death.

Comment

18 USC 3592(a)(7).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

At least one of you must find that the defendant has proved by a preponderance of the evidence that [list any other factors in the defendant's background, record, or character or any other circumstances of the offense that mitigate against imposing the death sentence.]

Comment

18 USC 3592(a)(8).

The defendant may submit a mitigating factor, under the catch-all provision, section 3592(a)(8), based on any aspect of his character, record, or offense, even if that factor is similar to the other, statutorily defined mitigating factors, because "a capital defendant is constitutionally entitled to offer in mitigation any aspect of his character, record, or offense." United States v. McVeigh, 153 F.3d 1166, 1212 (10th Cir. 1998) (capital defendant entitled to assert, under the catch-all mitigating factor, that he had had a lesser role in the offense, even though that mitigating factor is similar to the statutory mitigating factor applicable when the capital defendant played a minor role in the offense, 18 USC 3592(a)(3)), disapproved of on other grounds by Hooks v. Ward, 184 F.3d 1206, 1227 (10th Cir. 1999), and abrogation on other grounds recognized by United States v. Nichols, 38 Fed. Appx. 534, 537–38 (10th Cir. Apr. 5, 2002).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

After completing your findings regarding aggravating and mitigating factors, you must engage in a weighing process to determine whether a sentence of death is justified. In this process, you must consider only those aggravating factors, statutory and non-statutory, that you unanimously found to exist. Each of you must also consider any mitigating factors that you individually found to exist, and you each may consider any mitigating factors found by any of the other jurors. You must determine whether the proven aggravating factor[s] sufficiently outweigh any proven mitigating factor[s] to justify a sentence of death.

The task of weighing aggravating and mitigating factors against each other, or weighing aggravating factors alone if there are no mitigating factors, is not a mechanical process. You should not simply count the number of factors, but consider the particular character of each, which may be given different weight or value by different jurors. What constitutes sufficient justification for a sentence of death in this case is exclusively left to you. Your role is to be the conscience of the community in making a moral judgment about the worth of an individual life balanced against the societal value of what the government contends is deserved punishment for the defendant's offense.[1] Whatever aggravating and mitigating factors are found, a jury is never required to conclude the weighing process in favor of a sentence of death. But your decision must be a reasoned one, free from the influence of passion, prejudice, or arbitrary consideration.

If you do not unanimously find that the aggravating factor[s] sufficiently outweigh the mitigating factor[s] to justify a sentence of death–or in the absence of any mitigating factor, that the aggravating factor[s], considered alone, justify a sentence of death–answer "no" on the Special Findings Form, sign Verdict III–B (Life Imprisonment), and certify your decision as described in section IV of the Form, which will end your deliberations. If you unanimously find that the comparative weight of the aggravating factor[s] is sufficient to justify a sentence of death, answer "yes" on the Special Findings Form, sign Verdict III–A (Sentence of Death), and certify your decision as described in section IV of the Form.

[1] The basic outline of the weighing process is set out in 18 USC 3593(e). For a further description of the jury's exclusive, discretionary role, see also United States v. Allen, 247 F.3d 741, 781 (8th Cir. 2001) (explaining that "[u]nder the FDPA, the jury exercises complete discretion in its determination of whether the aggravating factors outweigh the mitigating factors" and that "whether or not the circumstances justify a sentence of death [is] a decision left entirely to them"), vacated on other grounds, 536 U.S. 953 (2002), reaff'd in United States v. Ortiz, 315 F.3d 873, 900–01 (8th Cir. 2002).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

In considering whether a sentence of death is justified, you shall not consider the race, color, religious beliefs, national origin, or gender of the defendant or of any victim. You are not to impose a death sentence unless you conclude that you would do so no matter what the race, color, religious beliefs, national origin, or gender of the defendant or the victim(s) may be.

Whatever sentencing decision you reach, each of you is required by law to sign a certification attesting to the fact that you have followed this instruction. The certification is set out in section IV of the Special Findings Form.

The trial court is statutorily required to instruct the jury in this, or a similar, manner. 18 USC 3593(f).

CRIMINAL PATTERN JURY INSTRUCTIONS - 10TH CIRCUIT (2005)

Volume 17: Death Penalty (Chapters 301-304)

I. Findings Regarding Defendant's Eligibility for a Death Sentence

    A. Defendant's Age at Time of Offense

    Do you unanimously find that the government proved beyond a reasonable doubt that the defendant was eighteen (18) years of age at the time he committed the offense[s] for which sentence is to be imposed?

YES _______

NO _______

    If you answered yes, proceed to the next section (I–B) of this Form. If you answered no, then stop your deliberations, sign the section of this Form indicating a verdict of life imprisonment (III–B), certify your decision as described in section IV, and notify the court that you have reached a decision.

    B. Defendant's Intent in Commission of Offense

    For each type of intent specified below, answer "yes" or "no" according to whether you unanimously find that the government proved beyond a reasonable doubt that the defendant acted with the specified intent:

    1. The defendant intentionally killed the victim;

YES _______

NO _______

    2. The defendant intentionally inflicted serious bodily injury that resulted in the victim's death;

YES _______

NO _______

    3. The defendant intentionally participated in an act, contemplating that a person's life would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a result of the act;

YES _______

NO _______

    4. The defendant intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act.

YES _______

NO _______

    If you answered yes to one or more of these alternatives, proceed to the next section (I–C) of this Form. If you answered no to all of them, then stop your deliberations, sign the section of this Form indicating a verdict of life imprisonment (III–B), certify your decision as described in section IV, and notify the court that you have reached a decision.

    C. Statutory Aggravating Factors

    The government has alleged that the following statutory aggravating factors are present in this case. For each factor, answer "yes" or "no" according to whether you unanimously find that the government proved the existence of the factor beyond a reasonable doubt:

    [1. Insert alleged statutory aggravating factors here (which must match those specified in the associated instruction), each followed by blanks for "yes" or "no" findings.

    X.]

    If you answered "yes" to one or more of these statutory aggravating factors, you have found the defendant eligible for a death sentence and you should proceed to the next section (II) of this Form to consider whether such a sentence is justified under the circumstances of the case. If you answered "no" to all of these factors, then you have found the defendant ineligible for a death sentence and you should stop your deliberations, sign the section of this Form indicating a verdict of life imprisonment (III–B), certify your decision as described in section IV, and notify the court that you have reached a decision.

II. Findings Regarding Justification for a Death Sentence

    A. Non-Statutory Aggravating Factors

    The government has alleged that the following non-statutory aggravating factors are present in this case. For each factor, answer "yes" or no according to whether you unanimously find that the government proved the existence of the factor beyond a reasonable doubt:

    [1. Insert alleged non-statutory aggravating factors here (which must match those specified in the associated instruction), each followed by blanks for "yes" or "no" findings.

    X.]

    Regardless of your findings on these non-statutory factors, you must proceed to the next section (II–B) of this Form.

    B. Mitigating Factors

    The defendant has alleged that the following mitigating factors are present in this case. For each of these factors, answer "yes" or "no" according to whether any juror (or jurors) finds that the defendant has proved the existence of the factor by a preponderance of the evidence:

    [1. Insert alleged mitigating factors (which must match those specified in the associated instruction), each followed by blanks for "yes" or "no" findings. In this instance, the "yes" blank should indicate that any one or more jurors finds the factor was proved, while the "no" blank should indicate that no juror finds the factor was proved.

    X.]

    As explained in the Court's instructions, the law permits you to consider any other relevant mitigating information, in addition to the specific mitigating factors alleged by the defendant listed above, so long as you find that it was proved by a preponderance of the evidence. As with specific mitigating factors, your findings in this regard need not be unanimous.

    Did one or more jurors find that other relevant mitigating information was proved?

YES _______

NO _______

    If you answered "yes," list the additional mitigation information you found to be present in the space provided immediately below:

    When you have completed your findings regarding mitigation, proceed to the next section (II–C) of this Form, where you will weigh the aggravating factor[s] with the mitigating factor[s], if any, that you have found to be present in this case.

    C. Weighing Process

    The question you must answer at this stage of your deliberations is whether the proven aggravating factor[s] sufficiently outweigh the proven mitigating factors and information to justify a sentence of death or, if you have not found any mitigation present, whether the aggravating factor[s] considered alone justify a death sentence. If you unanimously find that the weight of the aggravating factor[s] is sufficient to justify a sentence of death, answer "yes" below, record your verdict on Verdict—Sentence of Death, certify your decision as described in section IV, and notify the court that you have reached a decision. If you do not unanimously find that a death sentence is justified, answer "no" below, stop your deliberations, sign Verdict—Life Imprisonment, certify your decision as described in section IV, and notify the court that you have reached a decision.

YES _______

NO _______

III. Imposition of Sentence

    This is the last step in your deliberations. If you have made all of the findings necessary to make the defendant eligible for a death sentence and have unanimously concluded that such a sentence is justified and therefore must be imposed on the defendant, record your decision by collectively signing the verdict set out in Verdict—Sentence of Death below, sign the certification that follows in section IV, and notify the court that you have reached a decision. If you do not unanimously conclude that a sentence of death is justified and therefore must be imposed, sign the verdict for life imprisonment set out in Verdict—Life Imprisonment below, sign the certification in section IV, and notify the court that you have reached a decision.

    Based upon our consideration of the evidence and in accordance with the court's instructions, we find by unanimous vote that a sentence of death shall be imposed on the defendant.

____________________________________________

____________________________________________

____________________________________________

____________________________________________

____________________________________________

____________________________________________

Foreperson

Date: ___________________

    Based upon our consideration of the evidence and in accordance with the court's instructions, we find that a sentence of life imprisonment without release shall be imposed on the defendant.

____________________________________________

____________________________________________

____________________________________________

____________________________________________

____________________________________________

____________________________________________

Foreperson

Date: _________

    IV. Certification

    By signing below, each juror certifies that consideration of the race, color, religious beliefs, national origin, or gender of the defendant or the victim(s) was not involved in reaching his or her individual decision, and that the individual juror would have made the same decision regarding the appropriate sentence for the offense in question regardless of the race, color, religious beliefs, national origin, or gender of the defendant or the victim(s).

____________________________________________

____________________________________________

____________________________________________

____________________________________________

____________________________________________

____________________________________________

Foreperson

Date: _________