8th Circuit Death Penalty Instructions

THE NATIONAL CRIMINAL JURY INSTRUCTION COMPENDIUM
FEDERAL DEATH PENALTY: SAMPLE INSTRUCTIONS
Go to Sample Instructions Table of Contents

8th Circuit Model Jury Instructions, Criminal 2008 - Death Penalty Instructions

Preliminary Instructions
    12.01     Introduction to Preliminary Instructions
    12.02     Burden of Proof
    12.03     Evidence

Final Instructions
    12.04     Introduction to Final Instructions
    12.05     Finding as to Defendant’s Age (18 USC 3591) (Homicide)
    12.06     Finding of Requisite Mental State (18 USC 3591) (Homicide)
    12.07     Statutory Aggravating Factors (18 USC 3592) (Homicide)
    12.07A Death or Injury Resulting in Death During the Commission of an Offense
                  Listed Under 18 USC 3592(c)(1)
    12.07B Defendant’s Prior Conviction of a Violent Felony Involving a
                  Firearm (18 USC 3592(c)(2))
    12.07C Defendant’s Prior Conviction of an Offense Resulting in Death for Which
                  a Sentence of Life Imprisonment or Death Was Authorized by
                  Statute (18 USC 3592(c)(3), (D)(1))
    12.07D Defendant’s Prior Conviction of Two or More Offenses Involving the Infliction
                  of Serious Bodily Injury or Death (18 USC 3592(c)(4), (D)(2))
    12.07E Creation of a Grave Risk of Death to One or More Persons in Addition to the
                  Victim (18 USC 3592(c)(5); 21 USC 848(n)(5))
    12.07F Commission of the Offense in an Especially Heinous Cruel or Depraved
                  Manner (18 USC 3592(c)(6))
    12.07G Procurement of Commission of the Offense by Payment of Something of Pecuniary
                  Value (18 USC 3592(c)(7); 21 USC 848(n)(6) and (7))
    12.07H Commission of the Offense for Pecuniary Gain (18 USC 3592(c)(8);
                  21 USC 848(n)(7))
    12.07I   Commission of the Offense after Substantial Planning and Premeditation
                  (18 USC 3592(c)(9); 21 USC 848(n)(8))
    12.07J   Defendant’s Prior Convictions for Two or More Felony Drug Distribution
                  Offenses (18 USC 3592(c)(10), (D)(2); 21 USC 848(n)(4))
    12.07K Vulnerable Victim (18 USC 3592(c)(11); 21 USC 848(n)(9))
    12.07L   Previous Conviction for a Federal Narcotics Violation for Which a Sentence of Five
                  or More Years May Be Imposed, or Prior Conviction for a Continuing Criminal
                  Enterprise (18 USC 3592(c)(12), (D)(3); 21 USC 848(n)(10))
    12.07M Continuing Criminal Enterprise Involving Drug Sales to Minors
                  (18 USC 3592(c)(13), (D)(5)(6) and (7); 21 USC 848(n)(11);
                  21 USC 802(8) (11))
    12.07O Defendant’s Previous Conviction for Sexual Assault, Child Molestation
                  (18 USC 3592(c)(15))
    12.08     Nonstatutory Aggravating Factors
    12.09     Mitigating Factors
    12.10     Mitigating Factors Enumerated (18 USC 3592(a))
    12.11     Weighing Aggravation and Mitigation
    12.12     Consequences of Deliberations (18 USC 3594)
    12.13     Justice Without Discrimination (18 USC 3593(f))
    12.14     Defendant’s Right Not to Testify
    12.15 - 12.19 [Reserved for Future Use]
    12.20     Special Verdict (18 USC 3593(d); 21 USC 848(k), (q))
    12.21     Concluding Instruction
    12.22     Special Verdict Form

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.00 HOMICIDE - DEATH PENALTY - SENTENCING
(18 USC 3591 et seq.)

Instructions 12.01-.03 are to be given at the beginning of the sentencing phase, before the introduction of evidence. They are intended to be a concise overview, so that the jury has a basic understanding of the decisions it will be called upon to make.

Instructions 12.04-.22 are to be given after all evidence has been presented and prior to deliberations.

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.01
INTRODUCTION TO PRELIMINARY INSTRUCTIONS

Members of the jury, you have unanimously found the defendant¹ guilty of the offense of as charged in Count [repeat for each offense] of the indictment. You must now consider whether imposition of a sentence of death is justified, or whether the defendant should be sentenced to life imprisonment without the possibility of release²[, or a lesser sentence] for commission of this [these] crime[s].

This decision is left exclusively to you, the jury. If you determine³ that the defendant should be sentenced to death, or to life imprisonment without possibility of release, the court is required to impose that sentence.

Before you may consider whether to impose a sentence of death, you must make each of the following three findings unanimously and beyond a reasonable doubt:

[First, you must find unanimously and beyond a reasonable doubt that the defendant was at least 18 years of age at the time of the offense[s]⁴; and]

[First] [Second], you must find unanimously and beyond a reasonable doubt that the defendant

[intentionally killed (name of victim)]

[intentionally inflicted serious bodily injury that resulted in the death of (name of victim)]

[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 (name of victim) died as a direct result of the act]

[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 (name of victim) died as a direct result of the act]; and

[Second] [Third], you must find unanimously and beyond a reasonable doubt that the government has proved the existence of at least one statutory aggravating factor. I will define the term "aggravating factors" for you shortly.

If, after fair and impartial consideration of all the evidence in this case, any one of you does not make these [two] [three] findings beyond a reasonable doubt, your deliberations will be over. If you do unanimously make these [two] [three] findings beyond a reasonable doubt, you will then proceed to determine whether you unanimously find that the government has proved the existence of any nonstatutory aggravating factors beyond a reasonable doubt, and whether any of you find that the defendant has proved any mitigating factors by a preponderance of the evidence. You must then engage in a weighing process. If you unanimously find that the aggravating factor or factors, which you all found to exist, sufficiently outweigh any mitigating factor or factors, which any one of you⁵ found to exist to justify imposition of⁶ a sentence of death, or, if, in the absence of a mitigating factor or factors, you find that the aggravating factor or factors alone are sufficient to justify imposition of a sentence of death, and that death is therefore the appropriate sentence in this case, the law provides that the defendant must⁷ be sentenced to death.

If, after weighing the aggravating and mitigating factors, any one of you finds that a sentence of death is not justified, the jury must then determine whether the defendant should be sentenced to life imprisonment without possibility of release, or be given a lesser sentence to be determined by the court.

Again, whether or not the circumstances in this case justify a sentence of death is a decision that is entirely yours. [You must not take anything I may say or do during this phase of the trial as indicating [what I think of the evidence or] what I think your verdict should be.]

Two terms that you have already heard and will hear throughout this phase of the case are "aggravating factors" and "mitigating factors." These factors concern the circumstances of the crime or the personal traits, character or background of the defendant [and the effect of the offense on the victim (and the victim’s family]⁸.

[The word "aggravate" means "to make worse or more offensive" or "to intensify." The word "mitigate" means "to make less severe" or "to moderate."]⁹ An aggravating factor[, then,] is a fact or circumstance which would tend to support imposition of the death penalty. A mitigating factor is any aspect of a defendant's character or background, any circumstance of the offense(s), or any other relevant fact or circumstance which might indicate that the defendant should not be sentenced to death.

In the death penalty statute, a number of aggravating factors are listed. These are called "statutory aggravating factors." As I instructed you earlier, before you may consider imposition of the death penalty, you must find that the government proved at least one of these aggravating factors specifically listed in the death penalty statute, and your finding must be unanimous and beyond a reasonable doubt. [In addition to statutory aggravating factors, there may also be aggravating factors not specifically set out in the death penalty statute. Again, your finding that any non statutory aggravating factor exists must be unanimous and beyond a reasonable doubt.]

The defendant has the burden of proving any mitigating factors. However, there is a different standard of proof as to mitigating factors. You need not be convinced beyond a reasonable doubt about the existence of a mitigating factor; you need only be convinced that it is more likely true than not true in order to find that it exists. A unanimous finding is not required. Any one of you may find the existence of a mitigating factor, regardless of the number of other jurors who may agree.

If you have unanimously found that at least one statutory aggravating factor exists, you then must weigh the aggravating factors you have all found to exist against any mitigating factors you have individually found to exist, to determine the appropriate sentence. Any juror may also weigh a mitigating factor found by another juror, even if he or she did not also find that factor to be mitigating.¹⁰ I will give you detailed instructions regarding the weighing of aggravating [and mitigating] factors before you begin your deliberations. However, I instruct you now that you must not simply count the number of aggravating [and mitigating] factors and reach a decision [based on which number is greater]; you must consider the weight and value of each factor.

[The government alleges the following statutory aggravating factors: [list factors] The government also alleges the following nonstatutory aggravating factors: [list factors] The defendant alleges the following mitigating factors: [list factors]]¹¹

Notes on Use

1. These instructions have been prepared in a single-defendant format. Appropriate modifications for proceedings involving multiple defendants would be necessary.

2. In Simmons v. South Carolina, 512 U.S. 154, 156 (1994), the Supreme Court held that where a defendant's future dangerousness was at issue and the only sentencing alternative to the death penalty under state law was life imprisonment without possibility of parole, due process required that the sentencing jury be informed that the defendant was ineligible for parole. The Court reiterated that holding in Shafer v. South Carolina, 532 U.S. 36, 51 (2001).

Sections 3593(e) and 3594, Title 18, United States Code, provide that the jury shall make a recommendation regarding whether the defendant should be sentenced to death or life imprisonment without the possibility of release, which would require that they be informed of this option for offenses under sections 3591(b)(1)-(2). The practice in most states is to inform the sentencing jury of life without parole as an alternative to capital punishment. Simmons v. South Carolina, 512 U.S. at 167-68 nn.7-8.

3. Although the statute uses the word "recommend," the jury's determination is binding; the court MUST impose the sentence the jury "recommends" unless a new trial is ordered. The Committee recommends use of the word "determine," because of concern that use of the word "recommend" might tend to diminish the jury's sense of its ultimate responsibility for determining the sentence. See Caldwell v. Mississippi, 472 U.S. 320 (1985).

4. Courts have consistently held that where a statute requires that a defendant be of a certain age in order to be guilty of an offense, the defendant’s age is an element of the offense and must be proven beyond a reasonable doubt. See, e.g., Watson v. State, 140 N.E.2d 109, 110-11 (Ind. 1957); State v. Thompson, 365 N.W.2d 40, 41-42 (Iowa 1985); Barnett v. State, 488 So. 2d 24 (Ala. Crim. App. 1986); State v. Lauritsen, 261 N.W.2d 755, 756 (Neb. 1978); Lee v. State, 481 S.E.2d 264, 265-66 (Ga. App. 1997); State in the Interest of A.N., A Juvenile, 630 A.2d 1183, 1184 (N.J. Super. 1993); State v. Collins, 620 A.2d 1051, 1053 (N.J. Super. 1993). Therefore, the Committee recommends that the issue be submitted to the jury, unless the defendant agrees to stipulate that he/she was at least 18 years of age at the time of the offense.

5. In Jones v. United States, 527 U.S. 373, 377 (1999), the Supreme Court held that the jury may consider a mitigating factor in its weighing process so long as one juror accepts the factor as mitigating by a preponderance of the evidence.

6. The Committee was concerned that absence of the words "imposition of" rendered the decision before the jury too abstract.

7. In United States v. Allen, 247 F.3d 741, 780 (8^th Cir. 2001), judgment vacated and remanded on other grounds, 536 U.S. 953 (2002), the Eighth Circuit held that this instruction and Instruction12.11 (the weighing instruction), which the defendant had attacked as impermissibly mandatory in nature, "accurately explain the jury’s role in sentencing under the FDPA." The court also held that the district court did not abuse its discretion in refusing to give the defendant’s "mercy" instruction, which closely followed the language in the Title 21 statute, to the effect that the jury, "regardless of its findings with respect to aggravating and mitigating factors, is never required to impose a death sentence." It concluded that

Under the FDPA, the jury exercises complete discretion in its determination of whether the aggravating factors outweigh the mitigating factors. The jury was informed that whether or not the circumstances justify a sentence of death was a decision left entirely to them. Mercy is not precluded from entering into the balance of whether the aggravating circumstances outweigh the mitigating circumstances. The FDPA merely precludes the jurors from arbitrarily disregarding its unanimous determination that a sentence of death is justified.

Id. at 781. The Eighth Circuit reaffirmed its holding in Allen in United States v. Ortiz, 315 F.3d 873 (8^th Cir. 2002).

8. This phrase should be used with extreme caution. Section 3593(a), Title 18, United States Code, provides that aggravating factors "may include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim's family . . ." Some kinds of "victim impact" evidence are clearly admissible, i.e., evidence which amounts to "circumstances of the crime." See Payne v. Tennessee, 501 U.S. 808 (1991). Other "personal traits" of the victim are clearly not to be considered as part of the sentencing determination, i.e., race, color, religion, national origin or gender. See 18 USC 3593(f); Zant v. Stephens, 462 U.S. 862, 885 (1983). Some "victim impact" evidence might be mitigating and must be submitted as such under Lockett v. Ohio, 438 U.S. 586, 604-08 (1978).

9. Whether to define the words "aggravate" and "mitigate" is a decision best left to the district court.

10. See Note 1, Instruction 12.09, infra.

11. Whether to list the aggravating and mitigating factors for the jury at the preliminary stage of the sentencing phase is a decision for the district court to make depending on the circumstances of the case before it.

In Ring v. Arizona, 536 U.S. 584, 609 (2002), the Supreme Court held that statutory aggravating factors must be found by the jury beyond a reasonable doubt. By implication, those factors, as well as the requisite intent state, must also be alleged in the indictment. Id.; United States v. Cotton, 535 U.S. 625 (2002). Further, section 3593(a) requires the government to give notice of aggravating factors prior to trial or plea of guilty. The government is therefore precluded from offering evidence during the penalty phase of additional statutory aggravating factors which were not alleged in the indictment and of nonstatutory aggravating factors for which notice was not given. However, the statute does not require the defendant to disclose mitigating factors. Therefore, the district court should not limit the defendant in presenting evidence of any mitigating factor. Further, although Rule 16 gives the district court broad discretion to regulate discovery, the Committee takes no position on whether the district court can order the defendant to disclose, prior to the penalty phase hearing, the mitigating factors he or she intends to prove.

(For 2006 version see below)

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2006 Version

Members of the jury, you have unanimously found the defendant¹ guilty of the offense of as charged in Count [repeat for each offense] of the indictment. You must now consider whether imposition of a sentence of death is justified, or whether the defendant should be sentenced to life imprisonment without the possibility of release²[, or a lesser sentence] for commission of this [these] crime[s].

This decision is left exclusively to you, the jury. If you determine³ that the defendant should be sentenced to death, or to life imprisonment without possibility of release, the court is required to impose that sentence.

Before you may consider whether to impose a sentence of death, you must make each of the following three findings unanimously and beyond a reasonable doubt:

[First, you must find unanimously and beyond a reasonable doubt that defendant was at least 18 years of age at the time of the offense[s]⁴; and]

[First] [Second], you must find unanimously and beyond a reasonable doubt that defendant

[intentionally killed (name of victim)]

[intentionally inflicted serious bodily injury that resulted in the death of (name of victim)]

[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 (name of victim) died as a direct result of the act]

[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 (name of victim) died as a direct result of the act]; and

[Second] [Third], you must find unanimously and beyond a reasonable doubt that the government has proved the existence of at least one statutory aggravating factor. I will define the term "aggravating factors" for you shortly.

If, after fair and impartial consideration of all the evidence in this case, any one of you does not make these [two] [three] findings beyond a reasonable doubt, your deliberations will be over. If you do unanimously make these [two] [three] findings beyond a reasonable doubt, you will then proceed to determine whether you unanimously find that the government has proved the existence of any nonstatutory aggravating factors beyond a reasonable doubt, and whether any of you find that the defendant has proved any mitigating factors by a preponderance of the evidence. You must then engage in a weighing process. If you unanimously find that the aggravating factor or factors, which you all found to exist, sufficiently outweigh any mitigating factor or factors, which any one of you⁵ found to exist to justify imposition of⁶ a sentence of death, or, if, in the absence of a mitigating factor or factors, you find that the aggravating factor or factors alone are sufficient to justify imposition of a sentence of death, and that death is therefore the appropriate sentence in this case, the law provides that the defendant must⁷ be sentenced to death.

If, after weighing the aggravating and mitigating factors, any one of you finds that a sentence of death is not justified, the jury must then determine whether the defendant should be sentenced to life imprisonment without possibility of release, or be given a lesser sentence to be determined by the court.

Again, whether or not the circumstances in this case justify a sentence of death is a decision that is entirely yours. [You must not take anything I may say or do during this phase of the trial as indicating [what I think of the evidence or] what I think your verdict should be.]

Two terms that you have already heard and will hear throughout this phase of the case are "aggravating factors" and "mitigating factors." These factors concern the circumstances of the crime or the personal traits, character or background of the defendant [and the effect of the offense on the victim (and the victim’s family]⁸.

[The word "aggravate" means "to make worse or more offensive" or "to intensify." The word "mitigate" means "to make less severe" or "to moderate."]⁹ An aggravating factor[, then,] is a fact or circumstance which would tend to support imposition of the death penalty. A mitigating factor is any aspect of a defendant's character or background, any circumstance of the offense(s), or any other relevant fact or circumstance which might indicate that the defendant should not be sentenced to death.

In the death penalty statute, a number of aggravating factors are listed. These are called "statutory aggravating factors." As I instructed you earlier, before you may consider imposition of the death penalty, you must find that the government proved at least one of these aggravating factors specifically listed in the death penalty statute, and your finding must be unanimous and beyond a reasonable doubt. [In addition to statutory aggravating factors, there may also be aggravating factors not specifically set out in the death penalty statute. Again, your finding that any non statutory aggravating factor exists must be unanimous and beyond a reasonable doubt.]

The defendant has the burden of proving any mitigating factors. However, there is a different standard of proof as to mitigating factors. You need not be convinced beyond a reasonable doubt about the existence of a mitigating factor; you need only be convinced that it is more likely true than not true in order to find that it exists. A unanimous finding is not required. Any one of you may find the existence of a mitigating factor, regardless of the number of other jurors who may agree.

If you have unanimously found that at least one statutory aggravating factor exists, you then must weigh the aggravating factors you have all found to exist against any mitigating factors you have individually found to exist, to determine the appropriate sentence. Any juror may also weigh a mitigating factor found by another juror, even if he or she did not also find that factor to be mitigating.¹⁰ I will give you detailed instructions regarding the weighing of aggravating [and mitigating] factors before you begin your deliberations. However, I instruct you now that you must not simply count the number of aggravating [and mitigating] factors and reach a decision [based on which number is greater]; you must consider the weight and value of each factor.

[The government alleges the following statutory aggravating factors: [list factors] The government also alleges the following nonstatutory aggravating factors: [list factors] The defendant alleges the following mitigating factors: [list factors]]¹¹

Notes on Use

1. These instructions have been prepared in a single-defendant format. Appropriate modifications for proceedings involving multiple defendants would be necessary.

2. In Simmons v. South Carolina, 512 U.S. 154, 156, 114 S. Ct. 2187, 2190 (1994), the Supreme Court held that where a defendant's future dangerousness was at issue and the only sentencing alternative to the death penalty under state law was life imprisonment without possibility of parole, due process required that the sentencing jury be informed that the defendant was ineligible for parole. The Court reiterated that holding in Shafer v. South Carolina, 532 U.S. 36, 51, 121 S. Ct. 1263, 1273 (2001).

6. The Committee was concerned that absence of the words "imposition of" rendered the decision before the jury too abstract.

7. In United States v. Allen, 247 F.3d 741, 780 (8^th Cir. 2001), judgment vacated and remanded on other grounds, 122 S. Ct. 2653 (2002), the Eighth Circuit held that this instruction and Instruction12.11 (the weighing instruction), which the defendant had attacked as impermissibly mandatory in nature, "accurately explain the jury’s role in sentencing under the FDPA." The court also held that the district court did not abuse its discretion in refusing to give the defendant’s "mercy" instruction, which closely followed the language in the Title 21 statute, to the effect that the jury, "regardless of its findings with respect to aggravating and mitigating factors, is never required to impose a death sentence." It concluded that

Under the FDPA, the jury exercises complete discretion in its determination of whether the aggravating factors outweigh the mitigating factors. The jury was informed that whether or not the circumstances justify a sentence of death was a decision left entirely to them. Mercy is not precluded from entering into the balance of whether the aggravating circumstances outweigh the mitigating circumstances. The FDPA merely precludes the jurors from arbitrarily disregarding its unanimous determination that a sentence of death is justified.

Id. at 781. The Eighth Circuit reaffirmed its holding in Allen in United States v. Ortiz, 315 F.3d 873 (8^th Cir. 2002).

8. This phrase should be used with extreme caution. Section 3593(a), Title 18, United States Code, provides that aggravating factors "may include factors concerning the effect of the offense on the victim and the victim's family, and may include oral testimony, a victim impact statement that identifies the victim of the offense and the extent and scope of the injury and loss suffered by the victim and the victim's family . . ." Some kinds of "victim impact" evidence are clearly admissible, i.e., evidence which amounts to "circumstances of the crime." See Payne v. Tennessee, 501 U.S. 808, 111 S. Ct. 2597 (1991). Other "personal traits" of the victim are clearly not to be considered as part of the sentencing determination, i.e., race, color, religion, national origin or gender. See 18 USC 3593(f); Zant v. Stephens, 462 U.S. 862, 885 (1983). Some "victim impact" evidence might be mitigating and must be submitted as such under Lockett v. Ohio, 438 U.S. 586, 604-08 (1978).

9. Whether to define the words "aggravate" and "mitigate" is a decision best left to the district court.

10. See Note 1, Instruction 12.09, infra.

In Ring v. Arizona, 536 U.S. 584, ___, 122 S. Ct. 2428, 2443 (2002), the Supreme Court held that statutory aggravating factors must be found by the jury beyond a reasonable doubt. By implication, those factors, as well as the requisite intent state, must also be alleged in the indictment. Id.; United States v. Cotton, 122 S. Ct. 1781 (2002). Further, section 3593(a) requires the government to give notice of aggravating factors prior to trial or plea of guilty. The government is therefore precluded from offering evidence during the penalty phase of additional statutory aggravating factors which were not alleged in the indictment and of nonstatutory aggravating factors for which notice was not given. However, the statute does not require the defendant to disclose mitigating factors. Therefore, the district court should not limit the defendant in presenting evidence of any mitigating factor. Further, although Rule 16 gives the district court broad discretion to regulate discovery, the Committee takes no position on whether the district court can order the defendant to disclose, prior to the penalty phase hearing, the mitigating factors he or she intends to prove.

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.02
BURDEN OF PROOF

This instruction is to be given at the beginning of the sentencing phase, before the introduction of evidence.

As I have just instructed you, the government must meet its burden of proof beyond a reasonable doubt. A "reasonable doubt" is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence¹ received in this trial. It is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

The defendant does not have the burden of disproving the existence of anything the government must prove beyond a reasonable doubt. The burden is wholly upon the government; the law does not require the defendant to produce any evidence at all.

It is the defendant's burden to establish any mitigating factors, by a preponderance of the evidence. To prove something by the preponderance of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which of the evidence is more believable. [If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.]

[The preponderance of the evidence is not necessarily determined by the greater number of witnesses or exhibits presented by the government or the defendant.]

[To prove something by the preponderance of the evidence is a lesser standard of proof than proof beyond a reasonable doubt.]

Notes on Use

1. The Supreme Court has emphasized the importance of providing the jury with all relevant and reliable information, Jurek v. Texas, 428 U.S. 262, 276 (1976); Gregg v. Georgia, 428 U.S. 153, 203-04 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) ("it [is] desirable for the jury to have as much information as possible when it makes the sentencing decision"); accord Payne v. Tennessee, 501 U.S. 808, 820-21 (1991) (the prosecutor is free to offer "a wide range of relevant material" in a capital sentencing proceeding). See also 18 USC 3661 (use of information for sentencing) ("No limitation shall be placed on the information concerning the background, character, and conduct of [the defendant]."); accord FRCP 32(a).

Probably for this reason, section 3593(c) uses the word "information" rather than "evidence." It provides that "[i]nformation is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Nevertheless, the Committee recommends use of the word "evidence," to avoid the possibility of juror confusion.

The Eighth Circuit has rejected the contention that the "relaxed" evidentiary standards applicable at the penalty phase of the trial violate a capital defendant’s constitutional rights. United States v. Allen, 247 F.3d 741, 759-60 (8^th Cir. 2001), judgment vacated and remanded on other grounds, 536 U.S. 953 (2002). For a discussion of some of the issues that have arisen because of the nonapplicability of the Federal Rules of Evidence in capital sentencing proceedings, see United States v. Beckford, 964 F. Supp. 993 (E.D. Va. 1997).

Committee Comments

See Instructions 3.11, 6.21.853, supra; 8^th Cir. Civil Jury Instr. 3.04 (2005).

(For 2006 version see below)

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2006 Version

This instruction is to be given at the beginning of the sentencing phase, before the introduction of evidence.

As I have just instructed you, the government must meet its burden of proof beyond a reasonable doubt. A "reasonable doubt" is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence¹ received in this trial. It is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

The defendant does not have the burden of disproving the existence of anything the government must prove beyond a reasonable doubt. The burden is wholly upon the government; the law does not require the defendant to produce any evidence at all.

It is the defendant's burden to establish any mitigating factors, by a preponderance of the evidence. To prove something by the preponderance of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which of the evidence is more believable. [If, on any issue in the case, the evidence is equally balanced, you cannot find that issue has been proved.]

[The preponderance of the evidence is not necessarily determined by the greater number of witnesses or exhibits presented by the government or the defendant.]

[To prove something by the preponderance of the evidence is a lesser standard of proof than proof beyond a reasonable doubt.]

Notes on Use

1. The Supreme Court has emphasized the importance of providing the jury with all relevant and reliable information, Jurek v. Texas, 428 U.S. 262, 276 (1976); Gregg v. Georgia, 428 U.S. 153, 203-04 (1976) (opinion of Stewart, Powell, and Stevens, JJ.) ("it [is] desirable for the jury to have as much information as possible when it makes the sentencing decision"); accord Payne v. Tennessee, 501 U.S. 808, 820-21, 111 S. Ct. 2597, 2606 (1991) (the prosecutor is free to offer "a wide range of relevant material" in a capital sentencing proceeding). See also 18 USC 3661 (use of information for sentencing) ("No limitation shall be placed on the information concerning the background, character, and conduct of [the defendant]."); accord FRCPP 32(a).

The Eighth Circuit has rejected the contention that the "relaxed" evidentiary standards applicable at the penalty phase of the trial violate a capital defendant’s constitutional rights. United States v. Allen, 247 F.3d 741, 759-60 (8^th Cir. 2001), judgment vacated and remanded on other grounds, 122 S. Ct. 2653 (2002). For a discussion of some of the issues that have arisen because of the nonapplicability of the Federal Rules of Evidence in capital sentencing proceedings, see United States v. Beckford, 964 F. Supp. 993 (E.D. Va. 1997); United States v. Fell, 2002 WL 31113946 (D. Vt. Sept. 24, 2002) (holding FDPA unconstitutional because imposition of death penalty based on information not subject to constitutional guarantees of evidentiary admissibility.)

Committee Comments

See Instructions 3.11, 6.21.853, supra; Eighth Circuit Manual of Model Civil Jury Instructions, § 3.04.

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.03
EVIDENCE ¹

This instruction is to be given at the beginning of the sentencing phase, before the introduction of evidence.

In making all the determinations you are required to make in this phase of the trial, you may consider any evidence that was presented during the guilt phase of the trial as well as evidence that is presented at this sentencing phase of the trial.

In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it. [In deciding what testimony of any witness to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with other evidence that you believe.]

Notes on Use

1. See Note 1, Instruction 12.02.

Committee Comments

See Instructions 1.03-.05, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

This instruction is to be given at the beginning of the sentencing phase, before the introduction of evidence.

In making all the determinations you are required to make in this phase of the trial, you may consider any evidence that was presented during the guilt phase of the trial as well as evidence that is presented at this sentencing phase of the trial.

In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it. [In deciding what testimony of any witness to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with other evidence that you believe.]

Notes on Use

1. See Note 1, Instruction 12.02.

Committee Comments

See Instructions 1.03-.05, supra.

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.04
INTRODUCTION TO FINAL INSTRUCTIONS

Regardless of any opinion you may have as to what the law may be - or should be - it would be a violation of your oaths as jurors to base your verdict upon any view of the law other than that given to you in these instructions.

Some of the legal principles that you must apply to this sentencing decision duplicate those you followed in reaching your verdict as to guilt or innocence. Others are different. The instructions I am giving you now are a complete set of instructions on the law applicable to the sentencing decision. I have prepared them to ensure that you are clear in your duties at this extremely serious stage of the case. I have also prepared a special verdict form that you must complete. The form details special findings you must make in this case and will help you perform your duties properly.

Committee Comments

The Committee recommends that the court give each jury member a copy of the instructions and the Special Verdict Form to read and notate.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

Regardless of any opinion you may have as to what the law may be - or should be - it would be a violation of your oaths as jurors to base your verdict upon any view of the law other than that given to you in these instructions.

Some of the legal principles that you must apply to this sentencing decision duplicate those you followed in reaching your verdict as to guilt or innocence. Others are different. The instructions I am giving you now are a complete set of instructions on the law applicable to the sentencing decision. I have prepared them to ensure that you are clear in your duties at this extremely serious stage of the case. I have also prepared a special verdict form that you must complete. The form details special findings you must make in this case and will help you perform your duties properly.

Committee Comments

The Committee recommends that the court give each jury member a copy of the instructions and the Special Verdict Form to read and notate.

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.05
FINDING AS TO DEFENDANT’S AGE
(18 USC 3591) (Homicide)

[Before you may consider the imposition of the death penalty, you must first unanimously agree beyond a reasonable doubt that the defendant was eighteen years of age or older at the time of the offense.

If you unanimously make that finding, you should so indicate on [the appropriate] page [___] of the Special Verdict Form and continue your deliberations. If you do not unanimously make that finding, you should so indicate on [the appropriate] page [___] of the Special Verdict Form and follow the directions on page [ ] of the form. No further deliberations will be necessary.]¹

Notes on Use

1. See Note 4, Instruction 12.01, supra.

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

[Before you may consider the imposition of the death penalty, you must first unanimously agree beyond a reasonable doubt that the defendant was eighteen years of age or older at the time of the offense.

If you unanimously make that finding, you should so indicate on [the appropriate] page [___] of the Special Verdict Form and continue your deliberations. If you do not unanimously make that finding, you should so indicate on [the appropriate] page [___] of the Special Verdict Form and follow the directions on page [ ] of the form. No further deliberations will be necessary.]¹

Notes on Use

1. See Note 4, Instruction 12.01, supra.

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.06
FINDING OF REQUISITE MENTAL STATE
(18 USC 3591) (Homicide)

Before you may consider the imposition of the death penalty, you must [also] unanimously find beyond a reasonable doubt that the defendant intentionally [killed] [committed acts resulting in the death of] (name of victim) in [the] [one of the] manner(s)¹ described below. If you unanimously make that finding [as to the murder of (name of victim)], you should so indicate on [the appropriate] page [___] of the Special Verdict Form and continue your deliberations. If you do not unanimously make that finding [as to the murder of (name of victim)], you should so indicate on [the appropriate] page [___] of the Special Verdict Form, and follow the direction on page [ ]. No further deliberations will be necessary [as to that murder].

The government alleges that [LIST SEPARATELY FOR EACH MURDER AS APPROPRIATE]:²

[Examples]

1(A). [The defendant] intentionally killed the victim, [name of victim], by [summarize pertinent predicate facts, e.g., shooting her in the head]. To establish that the defendant intentionally killed the victim, the government must prove that the defendant killed the victim with a conscious desire to cause the victim's death.

1(B). [The defendant] intentionally inflicted serious bodily injury that resulted in the death of the victim, [name of victim], by [summarize pertinent predicate facts, e.g., (inflicting a severe blow to the head of) (shooting) (stabbing)] [name of victim], which resulted in the death of (name of victim). The government must prove that the defendant deliberately caused serious injury to the victim's body which in turn caused the victim's death. "Serious bodily injury" means a significant or considerable amount of injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of a body member, organ or mental faculty.

1(C). [The defendant] intentionally participated in an act, [contemplating that the life of a person [name of victim] would be taken] [intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim, [name of victim] died as a direct result of the act], by [summarize pertinent predicate facts, e.g., (ordering) (directing) (hiring) (another) (others) to (inflict a severe blow to the head of) (shoot) (stab) [name of victim], which directly resulted in the death of [name of victim]]. The government must prove that the defendant deliberately [describe act(s) committed] with a conscious desire that a person be killed or that lethal force be employed against a person. The phrase "lethal force" means an act [or acts] of violence capable of causing death.

1(D). [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 [name of victim] died as a direct result of the act, by [summarize pertinent predicate facts].

[Intent or knowledge may be proved like anything else. You may consider any statements made and acts done by the defendant, and all the facts and circumstances in evidence which may aid in a determination of the defendant's knowledge or intent.]³

[You may, but are not required to, infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.]

Notes on Use

1. If the court instructs on multiple intent states, it must ensure the instructions state clearly that the jury’s finding as to a particular mental state be unanimous. See Special Verdict Form, pp. 83-84.

2. Impermissible duplication. In a death penalty case arising under 21 USC 848(e), which defines these mental states as aggravating factors, the court in United States v. Tipton, 90 F.3d 861, 899 (4th Cir. 1996), stated that the purpose for requiring the finding of intent is

to focus the jury’s attention upon the different levels of moral culpability that these specific circumstances might reasonably be thought to represent, thereby channeling jury discretion in the weighing process.

The court went on to note that:

To allow cumulative findings of these intended alternative circumstances, all of which do involve different forms of criminal intent, runs a clear risk of skewing the weighing process in favor of the death penalty and thereby causing it to be imposed arbitrarily, hence unconstitutionally.

Id.; accord United States v. McCullah, 87 F.3d 1136, 1137-38 (10th Cir. 1996); United States v. Beckford, 968 F. Supp. 1080 (E.D. Va. 1997) (jury could consider any mental states supported by the evidence, but could return a finding as to only one of the submitted factors); United States v. Johnson, 1997 WL 534163 (N.D. Ill. Aug. 20, 1997); but see United States v. Flores, 63 F.3d 1342, 1369-72 (5th Cir. 1995). Although section 3591(a)(2) does not define 1(A) - (D) as statutory aggravating factors which are weighed in determining whether to impose the death penalty, see Instruction 12.11, and therefore the same concerns addressed in Tipton and McCullah are not present, the Committee suggests that, to avoid any concern over "stacking the deck" in favor of the death penalty, the court instruct only on those mental states clearly supported by the evidence.

3. If "intent" is included in other instructions in addition to this one, the Committee recommends that a separate intent instruction be given based upon Instruction 7.05, supra.

Committee Comments

The mental states set forth in 18 USC 3591(a)(2) concern the defendant's state of mind at the time of perpetrating or participating in the killing. At least one of the following mental states must be found to exist before the death penalty may be considered.

(A) The defendant intentionally killed the victim. See Baldwin v. Alabama, 472 U.S. 372, 385 (1985).

(B) The defendant intentionally inflicted serious bodily injury which resulted in the death of the victim. See Lowenfield v. Phelps, 484 U.S. 231, 246 (1988).

(C) The defendant intentionally engaged in conduct intending that the victim be killed or that lethal force be employed against the victim, which resulted in the death of the victim. See Enmund v. Florida, 458 U.S. 782, 801 (1982).

(D) The defendant intentionally engaged in conduct which –

(i) the defendant knew would create a grave risk of death to a person, other than one of the participants in the offense; and

(ii) resulted in the death of the victim. See Tison v. Arizona, 481 U.S. 137, 158 (1987).

In United States v. Paul, 217 F.3d 989, 997 (8^th Cir. 2000), the court stated that "[t]he best way to comply with section 3591(a)(2) is to actually use the language of the statute in the jury instruction." Instruction 12.06(1)(A) - (D) use the exact language of the statute.

See Instruction 7.05, supra. Francis v. Franklin, 471 U.S. 307, 315 (1985); Sandstrom v. Montana, 442 U.S. 510, 515 (1979); 1A Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 17.07 (5th ed. 2000).

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

Before you may consider the imposition of the death penalty, you must [also] unanimously find beyond a reasonable doubt that the defendant intentionally [killed] [committed acts resulting in the death of] (name of victim) in [the] [one of the] manner(s)¹ described below. If you unanimously make that finding [as to the murder of (name of victim)], you should so indicate on [the appropriate] page [___] of the Special Verdict Form and continue your deliberations. If you do not unanimously make that finding [as to the murder of (name of victim)], you should so indicate on [the appropriate] page [___] of the Special Verdict Form, and follow the direction on page [ ]. No further deliberations will be necessary [as to that murder].

The government alleges that [LIST SEPARATELY FOR EACH MURDER AS APPROPRIATE]:²

[Examples]

1(A). [The defendant] intentionally killed the victim, [name of victim], by [summarize pertinent predicate facts, e.g., shooting her in the head]. To establish that the defendant intentionally killed the victim, the government must prove that the defendant killed the victim with a conscious desire to cause the victim's death.

1(B). [The defendant] intentionally inflicted serious bodily injury that resulted in the death of the victim, [name of victim], by [summarize pertinent predicate facts, e.g., (inflicting a severe blow to the head of) (shooting) (stabbing)] [name of victim], which resulted in the death of (name of victim). The government must prove that the defendant deliberately caused serious injury to the victim's body which in turn caused the victim's death. "Serious bodily injury" means a significant or considerable amount of injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of a body member, organ or mental faculty.

1(C). [The defendant] intentionally participated in an act, [contemplating that the life of a person [name of victim] would be taken] [intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim, [name of victim] died as a direct result of the act], by [summarize pertinent predicate facts, e.g., (ordering) (directing) (hiring) (another) (others) to (inflict a severe blow to the head of) (shoot) (stab) [name of victim], which directly resulted in the death of [name of victim]]. The government must prove that the defendant deliberately [describe act(s) committed] with a conscious desire that a person be killed or that lethal force be employed against a person. The phrase "lethal force" means an act [or acts] of violence capable of causing death.

1(D). [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 [name of victim] died as a direct result of the act, by [summarize pertinent predicate facts].

[Intent or knowledge may be proved like anything else. You may consider any statements made and acts done by the defendant, and all the facts and circumstances in evidence which may aid in a determination of defendant's knowledge or intent.]³

[You may, but are not required to, infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.]

Notes on Use

2. Impermissible duplication. In a death penalty case arising under 21 USC 848(e), which defines these mental states as aggravating factors, the court in United States v. Tipton, 90 F.3d 861, 899 (4th Cir. 1996), cert. denied, 520 U.S. 1253 (1997), stated that the purpose for requiring the finding of intent is

to focus the jury’s attention upon the different levels of moral culpability that these specific circumstances might reasonably be thought to represent, thereby channeling jury discretion in the weighing process.

The court went on to note that:

To allow cumulative findings of these intended alternative circumstances, all of which do involve different forms of criminal intent, runs a clear risk of skewing the weighing process in favor of the death penalty and thereby causing it to be imposed arbitrarily, hence unconstitutionally.

Id.; accord United States v. McCullah, 87 F.3d 1136, 1137-38 (10th Cir. 1996), cert. denied, 520 U.S. 1213 (1997); United States v. Beckford, 968 F. Supp. 1080 (E.D. Va. 1997) (jury could consider any mental states supported by the evidence, but could return a finding as to only one of the submitted factors); United States v. Johnson, 1997 WL 534163 (N.D. Ill. Aug. 20, 1997); but see United States v. Flores, 63 F.3d 1342, 1369-72 (5th Cir. 1995), cert. denied, 519 U.S. 825 (1996). Although section 3591(a)(2) does not define 1(A) - (D) as statutory aggravating factors which are weighed in determining whether to impose the death penalty, see Instruction 12.11, and therefore the same concerns addressed in Tipton and McCullah are not present, the Committee suggests that, to avoid any concern over "stacking the deck" in favor of the death penalty, the court instruct only on those mental states clearly supported by the evidence.

3. If "intent" is included in other instructions in addition to this one, the Committee recommends that a separate intent instruction be given based upon Instruction 7.05, supra.

Committee Comments

(A) The defendant intentionally killed the victim. See Baldwin v. Alabama, 472 U.S. 372, 385 (1985).

(B) The defendant intentionally inflicted serious bodily injury which resulted in the death of the victim. See Lowenfield v. Phelps, 484 U.S. 231, 246 (1988).

(D) The defendant intentionally engaged in conduct which –

(i) the defendant knew would create a grave risk of death to a person, other than one of the participants in the offense; and

(ii) resulted in the death of the victim. See Tison v. Arizona, 481 U.S. 137, 158 (1987).

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.07
STATUTORY AGGRAVATING FACTORS
(18 USC 3592) (Homicide)

If you unanimously find beyond a reasonable doubt that [the defendant] intentionally [committed the murder of] [committed acts resulting in the death of] (name of victim) in the manner described in Instruction [ ], you must then proceed to determine whether the government has proved beyond a reasonable doubt the existence of [any of] the following alleged statutory aggravating factor(s) [with respect to the same murder(s).] If you unanimously make that finding in the affirmative [as to the murder of (name of victim)], you should so indicate in Section III on [the appropriate] page [___] of the Special Verdict Form and continue your deliberations. If you do not unanimously make that finding in the affirmative [as to the murder of (name of victim)], you should so indicate on [the appropriate] page [___] of the Special Verdict Form, and follow the directions on page [ ]. No further deliberations will be necessary [as to that murder].

The first statutory aggravating factor alleged by the government is that [LIST AGGRAVATING FACTOR FROM §§ 12.07A THROUGH 12.07P SEPARATELY FOR EACH KILLING AS APPROPRIATE]:

The second statutory aggravating factor alleged by the government is that [LIST AGGRAVATING FACTOR FROM §§ 12.07A THROUGH 12.07P SEPARATELY FOR EACH KILLING AS APPROPRIATE]:

The law directs you to consider and decide at this point the existence or nonexistence of only the statutory aggravating factors specifically claimed by the government. You are reminded that to find the existence of a statutory aggravating factor, your decision must be unanimous and beyond a reasonable doubt.

Committee Comments

The Constitution requires that the class of defendants eligible for the death penalty be narrowed by means of statutory aggravating factors that furnish principled guidance for the choice between death and a lesser penalty. See Maynard v. Cartwright, 486 U.S. 356, 361-64 (1988); Godfrey v. Georgia, 446 U.S. 420, 427-33 (1980); Gregg v. Georgia, 428 U.S. 153, 201 & n.54 (1976).

Identifying at least one nonduplicative statutory aggravating factor at either the guilt phase or the penalty phase of the trial is sufficient to meet this requirement. See Gregg v. Georgia, 428 U.S. 153, 206-07 (1976); Jurek v. Texas, 428 U.S. 262, 276 (1976); Proffitt v. Florida, 428 U.S. 242, 259-60 (1976). An "aggravating circumstance may be contained in the definition of the crime or in a separate sentencing factor (or in both)," Tuilaepa v. California, 512 U.S. 967, 972 (1994).

The statutory aggravating factors under 18 USC 3592(c) correspond generally to "traditional" statutory aggravating factors upheld by the Supreme Court in reviewing state death penalty statutes. An issue that commonly arises is whether one aggravating factor impermissibly duplicates another. Justice Thomas, joined by three other justices, noted in Jones v. United States, 527 U.S.373, 398 (1999) that:

[w]e have never before held that aggravating factors could be duplicative so as to render them constitutionally invalid, nor have we passed on the "double counting" theory that the Tenth Circuit advanced in McCullah and the Fifth Circuit appears to have followed here. What we have said is that the weighing process may be impermissibly skewed if the sentencing jury considers an invalid factor. (citations and footnotes omitted).

Justice Thomas went on to point out that, even accepting for the sake of argument the duplication theory, in the Jones case the factors "as a whole were not duplicative - at best, certain evidence was relevant to two different aggravating factors." Id. at 399.

Lower courts have expressed concern about the problem of duplicative factors. As noted above in Note 2, Instruction 12.06, supra, courts have warned of the dangers of submitting duplicative mental intent states to the jury. As to aggravating factors, in United States v. Bin Laden, 126 F. Supp.2d 290, 299 (S.D.N.Y. 2001), the court held that

an aggravating factor that is necessarily and wholly subsumed by a different aggravator within the same death penalty notice is invalid per se and should not be submitted to the penalty jury for sentencing consideration. . . [A] duplicative aggravator of this sort serves no significant sentencing role other than to cloud the issues and place an unwarranted thumb on death’s scale.

The court went on to state that

the Government’s attempt to spin off multiple freestanding aggravators from what should really only be one represents a strategy that should not be permitted. . . [T]he sole motivation for doing so is to ratchet up the number of aggravating factors and "give the government free reign to trump whatever mitigating factors are raised by the defendant." (United States v. Bradley, 880 F. Supp. 271, 285 (M.D. Pa. 1994).)

The Bin Laden court also reserved until after the jury returned a liability verdict the issue of whether a single aggravating factor may be alleged more than once, i.e., for each capital offense in a prosecution of multiple murders. The court noted that a "grouping" approach was taken in the McVeigh prosecution: each aggravating factor was alleged only once, even though both defendants faced eleven capital counts each. Id. n.14.

The Committee recommends that care be taken to ensure that aggravating factors, whether statutory or nonstatutory, are submitted in such a way that they do not impermissibly duplicate the requirements under sections 3591(a) and (b) or each other. As the Eighth Circuit held in Sloan v. Delo, 54 F.3d 1371, 1385 (8th Cir. 1995), where the death penalty statute calls for the weighing of aggravating circumstances against mitigating circumstances, "the invalidation of an aggravating circumstance is of tremendous import because the removal of that factor from the equation might change the result. See Stringer v. Black, 503 U.S. 222, 230-32 (1992)."

(For 2006 version see below)

***************************************************************************************************************************

2006 Version

If you unanimously find beyond a reasonable doubt that [the defendant] intentionally [committed the murder of] [committed acts resulting in the death of] (name of victim) in the manner described in Instruction [ ], you must then proceed to determine whether the government has proved beyond a reasonable doubt the existence of [any of] the following alleged statutory aggravating factor(s) [with respect to the same murder(s).] If you unanimously make that finding in the affirmative [as to the murder of (name of victim)], you should so indicate in Section III on [the appropriate] page [___] of the Special Verdict Form and continue your deliberations. If you do not unanimously make that finding in the affirmative [as to the murder of (name of victim)], you should so indicate on [the appropriate] page [___] of the Special Verdict Form, and follow the directions on page [ ]. No further deliberations will be necessary [as to that murder].

The first statutory aggravating factor alleged by the government is that [LIST AGGRAVATING FACTOR FROM §§ 12.07A THROUGH 12.07P SEPARATELY FOR EACH KILLING AS APPROPRIATE]:

The second statutory aggravating factor alleged by the government is that [LIST AGGRAVATING FACTOR FROM §§ 12.07A THROUGH 12.07P SEPARATELY FOR EACH KILLING AS APPROPRIATE]:

The law directs you to consider and decide at this point the existence or nonexistence of only the statutory aggravating factors specifically claimed by the government. You are reminded that to find the existence of a statutory aggravating factor, your decision must be unanimous and beyond a reasonable doubt.

Committee Comments

[w]e have never before held that aggravating factors could be duplicative so as to render them constitutionally invalid, nor have we passed on the "double counting" theory that the Tenth Circuit advanced in McCullah and the Fifth Circuit appears to have followed here. What we have said is that the weighing process may be impermissibly skewed if the sentencing jury considers an invalid factor. (citations and footnotes omitted).

an aggravating factor that is necessarily and wholly subsumed by a different aggravator within the same death penalty notice is invalid per se and should not be submitted to the penalty jury for sentencing consideration. . . [A] duplicative aggravator of this sort serves no significant sentencing role other than to cloud the issues and place an unwarranted thumb on death’s scale.

The court went on to state that

the Government’s attempt to spin off multiple freestanding aggravators from what should really only be one represents a strategy that should not be permitted. . . [T]he sole motivation for doing so is to ratchet up the number of aggravating factors and "give the government free reign to trump whatever mitigating factors are raised by the defendant." (United States v. Bradley, 880 F. Supp. 271, 285 (M.D. Pa. 1994).)

The Committee recommends that care be taken to ensure that aggravating factors, whether statutory or nonstatutory, are submitted in such a way that they do not impermissibly duplicate the requirements under sections 3591(a) and (b) or each other. As the Eighth Circuit held in Sloan v. Delo, 54 F.3d 1371, 1385 (8th Cir. 1995), cert. denied, 516 U.S. 1056 (1996), where the death penalty statute calls for the weighing of aggravating circumstances against mitigating circumstances, "the invalidation of an aggravating circumstance is of tremendous import because the removal of that factor from the equation might change the result. See Stringer v. Black, 503 U.S. 222, 230-32 (1992)."

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.07A
DEATH OR INJURY RESULTING IN DEATH DURING THE
COMMISSION OF AN OFFENSE LISTED UNDER 18 USC 3592(c)(1)

The [death] [injury resulting in death] occurred [during the [attempted] commission of] [during the immediate flight from the commission of] [state the qualifying offenses, e.g., kidnaping, listed under section 3592(c)(1)]. The government must prove beyond a reasonable doubt that [list elements of qualifying offense or attempt as in the corresponding verdict director, e.g., first, the defendant knowingly and willfully seized, confined, kidnaped, abducted, or carried away (name of victim); second, (name of victim) was thereafter transported in interstate commerce while so seized, confined, kidnaped, or abducted; and third, the defendant held (name of victim) for ransom, reward, or other benefit or reason.] [Alternatively, refer to separate count for which the defendant was found guilty at the first stage.]¹

Notes on Use

1. There may be instances in which the qualifying offense listed under section 3592(c)(1) was not charged in the indictment. It is not necessary for the government to charge the qualifying offense in the indictment for it to be alleged as an aggravating factor.

Committee Comments

Section 3592(c)(1) establishes as an aggravating factor that the death, or injury resulting in death, occurred during the commission or attempted commission of, or during the immediate flight from the commission of an offense under one of the following sections:

Title 18:

-- 32 (destruction of aircraft or aircraft facilities),

-- 33 (destruction of motor vehicles or motor vehicle facilities),

-- 36 (violence at international airports),

-- 351 (violence against Members of Congress, Cabinet Officers, or Supreme Court Justices),

-- 751 (prisoners in custody of institution or officer),

-- 794 (gathering or delivering defense evidence to aid foreign government),

-- 844(d) (transportation of explosives in interstate commerce for certain purposes),

-- 844(f) (destruction of Government property by explosives),

-- 1118 (prisoners serving life term),

-- 1201 (kidnaping),

-- 844(i) (destruction by explosives of property affecting interstate commerce),

-- 1116 (killing or attempted killing of diplomats),

-- 1203 (hostage taking),

-- 1992 (wrecking trains),

-- 2280 (maritime violence),

-- 2281 (maritime platform violence),

-- 2332 (terrorist acts abroad against U.S. Nationals),

-- 2339 (use of weapons of mass destruction),

-- 2381 (treason),

Title 49:

-- 1472(i) (aircraft piracy within special aircraft jurisdiction), and/or

-- 1472(n) (aircraft piracy outside special aircraft jurisdiction).

In United States v. Jones, 132 F.3d 232, 249 (5th Cir. 1998), aff’d, 527 U.S. 373 (1999), the court rejected the defendant’s contention that a statutory aggravating factor providing that the defendant caused the death of the victim, which occurred during the commission of a kidnaping, failed to genuinely narrow the class of persons eligible for the death penalty. The court concluded that

Although the jury had already found the defendant guilty of kidnaping with death resulting at the guilt phase of the trial, the jury did not consider whether [the defendant] caused the death of the victim during the commission of the crime of kidnaping until the penalty phase of the trial. The jury could have convicted [the defendant] of kidnaping with death resulting in the guilt phase of the trial and still answered "no" to statutory aggravating factor 2(A) in the penalty phase if the jury found that [the defendant] did not cause the death of the victim during the commission of the crime of kidnaping. The submission of the elements of the crime as an aggravating factor merely allowed the jury to consider the circumstances of the crime when deciding whether to impose the death penalty. Thus, the kidnaping was weighed only once by the jury during the penalty phase of the trial. Consequently, the repetition of the elements of the crime as an aggravating factor did not contradict the constitutional requirement that aggravating factors genuinely narrow the jury’s discretion.

Accord United States v. Hall, 152 F.3d 381, 416-17 (5^th Cir. 1998), abrogated in part on other grounds, United States v. Martinez-Salazar, 528 U.S. 304 (2000).

In a closely related issue, the courts are divided on the question whether this statutory aggravating factor is impermissibly duplicative and therefore improperly tilts the jury in favor of the death penalty. In United States v. Bin Laden, 126 F. Supp.2d 290, 301 (S.D.N.Y. 2001), the court rejected the duplication argument, concluding that it was proper for the jury to consider the crimes for which it had found the defendant guilty in determining sentencing, and that "the impermissible double-counting caused by an aggravator that is duplicative of another aggravator is simply not at issue here." Accord United States v. Johnson, 136 F. Supp.2d 553, 559 (W.D. Va. 2001); United States v. Cooper, 91 F. Supp.2d 90, 108-09 (D.D.C. 2000); United States v. Frank, 8 F. Supp.2d 253, 276 (S.D.N.Y. 1998); United States v. Edelin, 134 F. Supp.2d 59 (D.D.C. 2001) (§ 848).

On the other hand, the courts in United States v. McVeigh, 944 F. Supp. 1478, 1489-90 (D. Colo. 1996), and United States v. Kaczynski, 1997 WL 716487, at *23 (E.D. Cal. 1997), dismissed statutory aggravating factors which were based on the crimes alleged in those cases. The court in Kaczynski, at *23, stated that:

To allow the jury to weigh as an aggravating factor a crime which they had already necessarily found beyond a reasonable doubt would unfairly tip the scale toward death. This skews the weighing process by beginning the penalty phase with one aggravating factor already on death’s side of the scale. Furthermore, when dealing with a weighing statute, there is always the danger that one or more jurors will weigh by counting. (internal citations omitted)

(For 2006 version see below)

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2006 Version

The [death] [injury resulting in death] occurred [during the [attempted] commission of] [during the immediate flight from the commission of] [state the qualifying offenses, e.g., kidnaping, listed under section 3592(c)(1)]. The government must prove beyond a reasonable doubt that [list elements of qualifying offense or attempt as in the corresponding verdict director, e.g., first, the defendant knowingly and willfully seized, confined, kidnaped, abducted, or carried away (name of victim); second, (name of victim) was thereafter transported in interstate commerce while so seized, confined, kidnaped, or abducted; and third, the defendant held (name of victim) for ransom, reward, or other benefit or reason.] [Alternatively, refer to separate count for which defendant was found guilty at the first stage.]¹

Notes on Use

Committee Comments

Title 18:

-- 32 (destruction of aircraft or aircraft facilities),

-- 33 (destruction of motor vehicles or motor vehicle facilities),

-- 36 (violence at international airports),

-- 351 (violence against Members of Congress, Cabinet Officers, or Supreme Court Justices),

-- 751 (prisoners in custody of institution or officer),

-- 794 (gathering or delivering defense evidence to aid foreign government),

-- 844(d) (transportation of explosives in interstate commerce for certain purposes),

-- 844(f) (destruction of Government property by explosives),

-- 1118 (prisoners serving life term),

-- 1201 (kidnaping),

-- 844(i) (destruction by explosives of property affecting interstate commerce),

-- 1116 (killing or attempted killing of diplomats),

-- 1203 (hostage taking),

-- 1992 (wrecking trains),

-- 2280 (maritime violence),

-- 2281 (maritime platform violence),

-- 2332 (terrorist acts abroad against U.S. Nationals),

-- 2339 (use of weapons of mass destruction),

-- 2381 (treason),

Title 49:

-- 1472(i) (aircraft piracy within special aircraft jurisdiction), and/or

-- 1472(n) (aircraft piracy outside special aircraft jurisdiction).

In United States v. Jones, 132 F.3d 232, 249 (5th Cir. 1998), aff’d, 527 U.S. 373 (1999), the court rejected defendant’s contention that a statutory aggravating factor providing that defendant caused the death of the victim, which occurred during the commission of a kidnaping, failed to genuinely narrow the class of persons eligible for the death penalty. The court concluded that

Although the jury had already found the defendant guilty of kidnaping with death resulting at the guilt phase of the trial, the jury did not consider whether [the defendant] caused the death of the victim during the commission of the crime of kidnaping until the penalty phase of the trial. The jury could have convicted [the defendant] of kidnaping with death resulting in the guilt phase of the trial and still answered "no" to statutory aggravating factor 2(A) in the penalty phase if the jury found that [the defendant] did not cause the death of the victim during the commission of the crime of kidnaping. The submission of the elements of the crime as an aggravating factor merely allowed the jury to consider the circumstances of the crime when deciding whether to impose the death penalty. Thus, the kidnaping was weighed only once by the jury during the penalty phase of the trial. Consequently, the repetition of the elements of the crime as an aggravating factor did not contradict the constitutional requirement that aggravating factors genuinely narrow the jury’s discretion.

Accord United States v. Hall, 152 F.3d 381, 416-17 (5^th Cir. 1998), abrogated in part on other grounds, United States v. Martinez-Salazar, 528 U.S. 304 (2000).

To allow the jury to weigh as an aggravating factor a crime which they had already necessarily found beyond a reasonable doubt would unfairly tip the scale toward death. This skews the weighing process by beginning the penalty phase with one aggravating factor already on death’s side of the scale. Furthermore, when dealing with a weighing statute, there is always the danger that one or more jurors will weigh by counting. (internal citations omitted)

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.07B
DEFENDANT’S PRIOR CONVICTION OF A VIOLENT FELONY
INVOLVING A FIREARM (18 USC 3592(c)(2))

[The defendant] has been [previously] convicted¹ of [describe the federal or state offense punishable by a term of imprisonment of more than one year, involving the [use] [attempted use] [threatened use] of a firearm against another person.] [The term "firearm" means [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] [the frame or receiver of any such weapon] [any firearm muffler or firearm silencer] [any destructive device]. [It does not include an antique firearm.]

Notes on Use

1. Although section 3592(c)(2) uses language that the defendant "has previously been convicted," the statute does not make clear whether the jury may only consider convictions which occurred prior to the date of the murder with which the defendant was charged. Although there are as yet no federal cases on the issue, the majority of state courts that have examined this question have found that the term "prior conviction" in the context of a statutory aggravating factor simply means a conviction that has become final prior to the date of sentencing, regardless of the date of occurrence of the crime itself. Daugherty v. State, 419 S.2d 1067, 1069 (Fla. 1982); Ruffin v. State, 397 S.2d 277, 282 (Fla. 1981); State v. Brooks, 541 S.2d 801, 809-10 (La. 1989); People v. White, 870 P.2d 424, 442-46 (Colo., en banc, 1994); People v. McClain, 757 P.2d 569 (1988); People v. Grant, 755 P.2d 894 (1988); People v. Hendrix, 737 P.2d 1350 (1987); Stephens v. Hopper, 247 S.E.2d 92, 97 (Ga. 1978); Templeman v. Commonwealth, 785 S.W.2d 259, 260 (Ky. 1990); State v. Biegenwald, 542 A.2d 442, 446 (N.J. 1988); State v. Teague, 680 S.W.2d 785, 789-90 (Tenn. 1984). Thus, criminal activity subsequent to the present homicide has been found sufficient to support statutory aggravating factors requiring "prior convictions." See also State v. Coffey, 444 S.E.2d 431 (N.C. 1994), in which the North Carolina Supreme Court interpreted a statutory provision referring to "prior criminal activity" as opposed to "prior convictions." Of note, another North Carolina court has concluded that the term "prior convictions" includes convictions for offenses which occurred subsequent to the charged offense but became final prior to trial. See State v. McCullers, 335 S.E.2d 348, 350 (N.C. App. 1985).

On the other hand, in Thompson v. State, 492 N.E.2d 264 (Ind. 1986), the court held that the phrase "prior convictions" included only convictions which occurred prior to the presently charged murder. However, the court also held that the Indiana death penalty provisions specifically allow the use as a statutory aggravating factor of the commission of another murder, regardless of when committed. Id. at 269.

Subsequent serious criminal activity can be used as nonstatutory aggravating evidence. United States v. Pitera, 795 F. Supp. 546, 564 (E.D.N.Y.), aff’d, 986 F.2d 499 (2d. Cir. 1992).

(For 2006 version see below)

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2006 Version

[The defendant] has been [previously] convicted¹ of [describe the federal or state offense punishable by a term of imprisonment of more than one year, involving the [use] [attempted use] [threatened use] of a firearm against another person.] [The term "firearm" means [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] [the frame or receiver of any such weapon] [any firearm muffler or firearm silencer] [any destructive device]. [It does not include an antique firearm.]

Notes on Use

1. Although section 3592(c)(2) uses language that the defendant "has previously been convicted," the statute does not make clear whether the jury may only consider convictions which occurred prior to the date of the murder with which the defendant was charged. Although there are as yet no federal cases on the issue, the majority of state courts that have examined this question have found that the term "prior conviction" in the context of a statutory aggravating factor simply means a conviction that has become final prior to the date of sentencing, regardless of the date of occurrence of the crime itself. Daugherty v. State, 419 S.2d 1067, 1069 (Fla. 1982), cert. denied, 459 U.S. 1228 (1983), Ruffin v. State, 397 S.2d 277, 282 (Fla.), cert. denied, 454 U.S. 882 (1981), State v. Brooks, 541 S.2d 801, 809-10 (La. 1989), People v. White, 870 P.2d 424, 442-46 (Colo., en banc, 1994), People v. McClain, 757 P.2d 569 (1988), cert. denied, 489 U.S. 1072 (1989), People v. Grant, 755 P.2d 894 (1988), cert. denied, 488 U.S. 1050 (1989), People v. Hendrix, 737 P.2d 1350 (1987), cert. denied, 488 U.S. 900 (1988), Stephens v. Hopper, 247 S.E.2d 92, 97 (Ga.), cert. denied, 439 U.S. 991 (1978), Templeman v. Commonwealth, 785 S.W.2d 259, 260 (Ky. 1990), State v. Biegenwald, 542 A.2d 442, 446 (N.J. 1988), State v. Teague, 680 S.W.2d 785, 789-90 (Tenn. 1984), cert. denied, 473 U.S. 911 (1985). Thus, criminal activity subsequent to the present homicide has been found sufficient to support statutory aggravating factors requiring "prior convictions." See also State v. Coffey, 444 S.E.2d 431 (N.C. 1994), in which the North Carolina Supreme Court interpreted a statutory provision referring to "prior criminal activity" as opposed to "prior convictions." Of note, another North Carolina court has concluded that the term "prior convictions" includes convictions for offenses which occurred subsequent to the charged offense but became final prior to trial. See State v. McCullers, 335 S.E.2d 348, 350 (N.C. App. 1985).

Subsequent serious criminal activity can be used as nonstatutory aggravating evidence. United States v. Pitera, 795 F. Supp. 546, 564 (E.D.N.Y.), aff’d, 986 F.2d 499 (2d. Cir. 1992).

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.07C
DEFENDANT’S PRIOR CONVICTION OF AN OFFENSE RESULTING IN
DEATH FOR WHICH A SENTENCE OF LIFE IMPRISONMENT OR DEATH
WAS AUTHORIZED BY STATUTE (18 USC 3592(c)(3), (d)(1))

[The defendant] has been [previously] convicted¹ of [name of offense], a [federal] [state] offense which resulted in the death of [name of victim], for which a sentence of life imprisonment or a sentence of death was authorized by statute.

Notes on Use

1. See Note 1, Instruction 12.07B, supra.

(For 2006 version see below)

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2006 Version

[The defendant] has been [previously] convicted¹ of [name of offense], a [federal] [state] offense which resulted in the death of [name of victim], for which a sentence of life imprisonment or a sentence of death was authorized by statute.

Notes on Use

1. See Note 1, Instruction 12.07B, supra.

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.07D
DEFENDANT’S PRIOR CONVICTION OF TWO OR MORE
OFFENSES INVOLVING THE INFLICTION OF SERIOUS BODILY
INJURY OR DEATH (18 USC§ 3592(c)(4), (d)(2))

[The defendant] has [previously] been convicted¹ of two or more [state] [federal] offenses each of which is punishable by a term of imprisonment of more than one year, committed on different occasions, and involves the [infliction of] [attempted infliction of] serious bodily injury upon another person, [summarize pertinent aspects of the predicate offense(s) including name of each offense and whether each offense involved infliction of or attempted infliction of seriously bodily injury upon another person].

Notes on Use

1. See Note 1, Instruction 12.07B, supra.

(For 2006 version see below)

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2006 Version

[The defendant] has [previously] been convicted¹ of two or more [state] [federal] offenses each of which is punishable by a term of imprisonment of more than one year, committed on different occasions, and involves the [infliction of] [attempted infliction of] serious bodily injury upon another person, [summarize pertinent aspects of the predicate offense(s) including name of each offense and whether each offense involved infliction of or attempted infliction of seriously bodily injury upon another person].

Notes on Use

1. See Note 1, Instruction 12.07B, supra.

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.07E
CREATION OF A GRAVE RISK OF DEATH TO ONE OR
MORE PERSONS IN ADDITION TO THE VICTIM
(18 USC 3592(c)(5); 21 USC 848(n)(5))

[In the commission of the offense] [In escaping apprehension for the offense], [the defendant] knowingly created a grave risk of death to one or more persons in addition to (the [intended]¹ victim[s]) [summarize pertinent predicate facts].

To establish the existence of this factor, the government must prove that the defendant knowingly created a grave risk of death² to one or more persons in addition to the victim(s) of the offense, [in committing the offense] [or] [in escaping apprehension for the offense]. "Persons in addition to the victim(s)" include innocent bystanders in the zone of danger created by the defendant's acts, but does not include other participants in the offense.]³ "Grave risk of death" means a significant and considerable possibility that another person might be killed. "Knowingly" creating such a risk means that the defendant was conscious and aware that his conduct in the course of [committing the offense] [or] [escaping apprehension for the offense] might have this result.

[Knowledge may be proved like anything else. You may consider any statements made and acts done by the defendant(s), and all the facts and circumstances in evidence which may aid in a determination of the defendant's(s’) knowledge.]

Notes on Use

1. This factor is broadly worded, and may be applicable to intended victims who escape death. See, e.g., United States v. Tipton, 90 F.3d 861, 869, 894 (4th Cir. 1996). However, the court in United States v. Glover, 43 F. Supp.2d 1217, 1221-22 (D. Kan. 1999), held that this factor and the factor enumerated in section 3592(c)(16), that "the defendant attempted to kill more than one person," were impermissibly duplicative, and that the government had to strike one of the aggravators in advance of trial.

Some states whose capital punishment statutes include a similar aggravating factor have construed that aggravating factor as not including surviving intended victims. See, e.g., State v. Bracy, 703 P.2d 464, 481 (Ariz. En Banc 1985); State v. Rossi, 706 P.2d 371, 378 (Ariz. En Banc 1985); State v. McCall, 677 P.2d 920, 934 (Ariz. En Banc 1983). Proximity to the murderous act is an important factor in applying this aggravating circumstance. See Commonwealth v. Stokes, 615 A.2d 704, 713 (Pa. 1992) ("the aggravating circumstance at issue applies to situations when the defendant in the course of killing his particular victim acts in a manner which endangers the lives of others close in proximity to the intended or actual victim."); State v. Wood, 881 P.2d, 1158, 1174-75 (Ariz. En Banc 1994) ("The grave risk of death to another factor applies only if the defendant’s murderous act itself put other people in the zone of danger. . . . No single factor is dispositive of this circumstance. Our inquiry is whether during the course of the killing, the defendant engaged in conduct that created a real and substantial likelihood that a specific third person might suffer fatal injury.")

2. The term "knowingly create a grave risk of death" has been interpreted to mean "reckless disregard for human life," Tison v. Arizona, 481 U.S. 137, 157-58 (1987), or "extreme indifference to human life," Enmund v. Florida, 458 U.S. 782, 790-91 (1982).

The instruction given at the McVeigh trial reads as follows:

This aggravating factor requires you to find that the defendant’s conduct not only resulted in death but also posed a significant risk of death to other persons who were in close proximity to those who died in terms of time and location. The defendant must have acted knowingly in creating this grave risk of death to other persons, which means that he must have been conscious and aware of the grave risk of death, must have realized what he was doing, and must not have acted because of ignorance, mistake or accident.

3. See Note 1, supra.

Committee Comments

See Profitt v. Florida, 428 U.S. 242, 256 (1976); Tison v. Arizona, 481 U.S. 137, 157-58 (1987); Francis v. Franklin, 471 U.S. 307, 315 (1985); Enmund v. Florida, 458 U.S. 782, 790-91 (1982); Sandstrom v. Montana, 442 U.S. 510, 515 (1979); 1A Kevin F. O’Malley, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 17.04 and 17.07 (5th ed. 2000).

In United States v. Allen, 247 F.3d 741, 786-87 (8^th Cir. 2001), judgment vacated and remanded on other grounds, 536 U.S. 953 (2002), the court rejected the defendant’s challenges that the "grave risk of death" aggravator was unconstitutionally vague and did not serve a narrowing function because it applied to too large a class of defendants.

(For 2006 version see below)

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2006 Version

In the commission of the offense] [In escaping apprehension for the offense], [the defendant] knowingly created a grave risk of death to one or more persons in addition to (the [intended]¹ victim[s]) [summarize pertinent predicate facts].

To establish the existence of this factor, the government must prove that the defendant knowingly created a grave risk of death² to one or more persons in addition to the victim(s) of the offense, [in committing the offense] [or] [in escaping apprehension for the offense]. "Persons in addition to the victim(s)" include innocent bystanders in the zone of danger created by the defendant's acts, but does not include other participants in the offense.]³ "Grave risk of death" means a significant and considerable possibility that another person might be killed. "Knowingly" creating such a risk means that the defendant was conscious and aware that his conduct in the course of [committing the offense] [or] [escaping apprehension for the offense] might have this result.

[Knowledge may be proved like anything else. You may consider any statements made and acts done by the defendant(s), and all the facts and circumstances in evidence which may aid in a determination of defendant's(s’) knowledge.]

Notes on Use

1. This factor is broadly worded, and may be applicable to intended victims who escape death. See, e.g., United States v. Tipton, 90 F.3d 861, 869, 894 (4th Cir. 1996), cert. denied, 520 U.S. 1253 (1997). However, the court in United States v. Glover, 43 F. Supp.2d 1217, 1221-22 (D. Kan. 1999), held that this factor and the factor enumerated in section 3592(c)(16), that "the defendant attempted to kill more than one person," were impermissibly duplicative, and that the government had to strike one of the aggravators in advance of trial.

Some states whose capital punishment statutes include a similar aggravating factor have construed that aggravating factor as not including surviving intended victims. See, e.g., State v. Bracy, 703 P.2d 464, 481 (Ariz. En Banc 1985), cert. denied, 474 U.S. 1110 (1986); State v. Rossi, 706 P.2d 371, 378 (Ariz. En Banc 1985), cert. denied, 506 U.S. 1003 (1992); State v. McCall, 677 P.2d 920, 934 (Ariz. En Banc 1983), cert. denied, 467 U.S. 1220 (1984). Proximity to the murderous act is an important factor in applying this aggravating circumstance. See Commonwealth v. Stokes, 615 A.2d 704, 713 (Pa. 1992) ("the aggravating circumstance at issue applies to situations when the defendant in the course of killing his particular victim acts in a manner which endangers the lives of others close in proximity to the intended or actual victim."); State v. Wood, 881 P.2d, 1158, 1174-75 (Ariz. En Banc 1994) ("The grave risk of death to another factor applies only if the defendant’s murderous act itself put other people in the zone of danger. . . . No single factor is dispositive of this circumstance. Our inquiry is whether during the course of the killing, the defendant engaged in conduct that created a real and substantial likelihood that a specific third person might suffer fatal injury.")

The instruction given at the McVeigh trial reads as follows:

This aggravating factor requires you to find that the defendant’s conduct not only resulted in death but also posed a significant risk of death to other persons who were in close proximity to those who died in terms of time and location. The defendant must have acted knowingly in creating this grave risk of death to other persons, which means that he must have been conscious and aware of the grave risk of death, must have realized what he was doing, and must not have acted because of ignorance, mistake or accident.

3. See Note 1, supra.

Committee Comments

In United States v. Allen, 247 F.3d 741, 786-87 (8^th Cir. 2001), judgment vacated and remanded on other grounds, 122 S. Ct. 2653 (2002), the court rejected defendant’s challenges that the "grave risk of death" aggravator was unconstitutionally vague and did not serve a narrowing function because it applied to too large a class of defendants.

8TH CIRCUIT MODEL JURY INSTRUCTIONS, CRIMINAL 2008 - DEATH PENALTY INSTRUCTIONS

12.07F
COMMISSION OF THE OFFENSE IN AN ESPECIALLY
HEINOUS CRUEL OR DEPRAVED MANNER
(18 USC 3592(c)(6))

[The defendant] committed the offense in an especially [heinous] [cruel] [or] [depraved] manner in that it involved [torture] [or] [serious physical abuse] to the victim, (name of victim) [summarize pertinent predicate facts]. To establish that the defendant killed the victim in an especially heinous, cruel, or depraved manner, the government must prove that the killing involved either torture or serious physical abuse to the victim. You must not find this factor to exist unless you unanimously agree as to which alternative - torture or serious physical abuse - has been proved beyond a reasonable doubt. In other words, all twelve of you must agree that it involved torture and was thus heinous, cruel or depraved, or all twelve of you must agree that it involved serious physical abuse to the victim and was thus heinous, cruel or depraved.]¹

["Heinous" means extremely wicked or shockingly evil, where the killing was accompanied by such additional acts of torture or serious physical abuse of the victim as to set it apart from other killings.]

["Cruel" means that the defendant intended to inflict a high degree of pain by torturing the victim in addition to killing the victim.]

["Depraved" means that the defendant relished the killing or showed indifference to the suffering of the victim, as evidenced by torture or serious physical abuse of the victim.]

["Torture" includes mental as well as physical abuse of the victim. In either case, the victim must have been conscious of the abuse at the time it was inflicted, and the defendant must have specifically intended to inflict severe mental or physical pain or suffering upon the victim, in addition to the killing of the victim.]

[Severe mental pain or suffering means prolonged mental harm caused by or resulting from [intentionally inflicting or threatening to inflict severe physical pain or suffering] [administering or applying, or threatening to administer or apply, mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality] [the threat of imminent death] [the threat that another person will imminently be subjected to death, severe physical pain or suffering] [the threat that another person will imminently be subjected to the administering or applying, or threatening to administer or apply, mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality.]

["Serious physical abuse" means a significant or considerable amount of injury or damage to the victim’s body. Serious physical abuse -- unlike torture -- may be inflicted either before or after death and does not require that the victim be conscious of the abuse at the time it was inflicted. However, the defendant must have specifically intended the abuse in addition to the killing.]

Pertinent factors in determining whether a killing was especially [heinous] [cruel] [or] [depraved] include: an infliction of gratuitous violence upon the victim above and beyond that necessary to commit the killing; the needless mutilation of the victim’s body; the senselessness of the killing; and the helplessness of the victim.

The word "especially" means highly or unusually great, distinctive, peculiar, particular, or significant, when compared to other killings.

Notes on Use

1. This statutory aggravator contains the disjunctive phrases "torture or serious physical abuse." The Committee concluded that juror unanimity as to one of these two disjunctive elements is required to support a finding of this aggravator. The Committee notes that in United States v. Jones, 132 F.3d 232 (5th Cir. 1998), aff’d, 527 U.S. 373 (1999), the instruction given did not require specific unanimity as to whether the defendant inflicted torture or serious physical abuse. Id. at 250 n.12.

Committee Comments

"Heinous" means that a killing was "extremely wicked or shockingly evil." Sochor v. Florida, 504 U.S. 527, 537 (1992) (quoting State v. Davis, 283 S.2d 1, 9 (Fla. 1973)). "Cruel" means that the defendant intended "to inflict a high degree of pain." Id. "Depraved" means that the defendant "relished[d] the murder" or show[ed] indifference to the suffering of the victim.