Free Proposed Jury Instructions - District Court of Colorado - Colorado

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

GOVERNMENT'S REVISED JURY INSTRUCTIONS AND VERDICT FORM

Plaintiff, the United States of America, respectfully submits its proposed jury instructions for the trial and sentencing hearing in this matter to which the parties have not been able to stipulate. Respectfully submitted this 19 th day of February, 2007.

TROY A. EID United States Attorney

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BY: s/ Brenda K. Taylor BRENDA K. TAYLOR Assistant U.S. Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

BY: s/ Philip A. Brimmer PHILIP A. BRIMMER Assistant U.S. Attorney U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, Colorado 80202 Telephone (303)454-0100 FAX: (303) 454-0406 E-mail address: [email protected] Attorney for Government

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CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of February, 2007, I electronically filed the foregoing GOVERNMENT'S REVISED JURY INSTRUCTIONS AND VERDICT FORM with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses:

Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected]

s/ Janet D. Zinser JANET D. ZINSER Supervisory Legal Assistant U.S. Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone (303) 454-0327 Fax (303) 454-0403 E-mail address [email protected]

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GOVERNMENT'S INSTRUCTION NO. 1 INTRODUCTION TO FINAL INSTRUCTIONS Members of the Jury: In any jury trial there are, in effect, two judges. I am one of the judges; you are the other. I am the judge of the law. You, as jurors, are the judges of the facts. I presided over the trial and decided what evidence was proper for your consideration. It is also my duty at the end of the trial to explain to you the rules of law that you must follow and apply in arriving at your verdict. In explaining the rules of law that you must follow, first, I will give you some general instructions which apply in every criminal case--for example, instructions about burden of proof and insights that may help you to judge the believability of witnesses. Then I will give you some specific rules of law that apply to this particular case and, finally, I will explain the procedures you should follow in your deliberations, and the possible verdict you may return. These instructions will be given to you for use in the jury room, so you need not take notes.

1.03 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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GOVERNMENT'S INSTRUCTION NO. 2 DUTY TO FOLLOW INSTRUCTIONS You, as jurors, are the judges of the facts. It is your duty as jurors to follow the law as stated in all of the instructions of the Court and to apply these rules of law to the facts as you find them to be from the evidence received during the trial. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences. However, you should not read into these instructions, or anything else I may have said or done, any suggestion as to what your verdict should be. That is entirely up to you. It is also your duty to base your verdict solely upon the evidence, without prejudice, bias, or sympathy. That was the promise you made and the oath you took.

1.04 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (second sentence modified and "bias" added to second to the last sentence). -5-

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GOVERNMENT'S INSTRUCTION NO. 3 PRESUMPTION OF INNOCENCE BURDEN OF PROOF - REASONABLE DOUBT

The indictment or formal charge against the defendant is not evidence of guilt. Indeed, the defendant is presumed by the law to be innocent. The law does not require a defendant to prove his innocence or produce any evidence at all. The government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the defendant not guilty. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. It is only required that the government's proof exclude any "reasonable doubt" concerning the defendant's guilt. A reasonable doubt is a doubt based on reason and common sense after careful and impartial consideration of all evidence in the case. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If, on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

1.05 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) -6-

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GOVERNMENT'S INSTRUCTION NO. 4 EXPERT WITNESS In some cases, such as this one, scientific, technical, or other specialized knowledge may assist the jury in understanding the evidence or in determining a fact in issue. A witness who has knowledge, skill, experience, training or education, may testify and state an opinion concerning such matters. You may accept such an opinion in whole or in part, or reject it in whole or in part. You should consider opinion testimony just as you consider other testimony in this trial. Give opinion testimony as much weight as you think it deserves, considering the education and experience of the witness, the soundness of the reasons given for the opinion, and other evidence in the trial.

1.17 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (first sentence in second paragraph replaced to add concept of jury being able to accept or reject in whole or in part).

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GOVERNMENT'S INSTRUCTION NO. 5 CAUTION - CONSIDER ONLY CRIME CHARGED You are here to decide whether the government has proved beyond a reasonable doubt that the defendant is guilty of the crime charged. The defendant is not on trial for any act, conduct, or crime not charged in the indictment. It is not up to you to decide whether anyone who is not on trial in this case should be prosecuted for the crime charged. The fact that another person also may be guilty is no defense to a criminal charge. The question of the possible guilt of others should not enter your thinking as you decide whether this defendant has been proved guilty of the crime charged.

1.19 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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GOVERNMENT'S INSTRUCTION NO. 6 EVIDENCE ADMITTED FOR A LIMITED PURPOSE ONLY In certain instances evidence may be admitted only concerning a particular party or only for a particular purpose and not generally against all parties or for all purposes. For the limited purpose for which this evidence has been received you may give it such weight as you feel it deserves. You may not, however, use this evidence for any other purpose or against any party not specifically mentioned.

O'Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 11.09

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GOVERNMENT'S INSTRUCTION NO. 7 JURY'S RECOLLECTION CONTROLS If any reference by the Court or by counsel to matters of testimony or exhibits does not coincide with your own recollection of that evidence, it is your recollection which should control during your deliberations and not the statements of the Court or of counsel. You are the sole judges of the evidence received in this case.

O'Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 12.07

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GOVERNMENT'S INSTRUCTION NO. 8 THE INDICTMENT IS NOT EVIDENCE An indictment is but a formal method used by the government to accuse a defendant of a crime. It is not evidence of any kind against a defendant. The defendant is presumed to be innocent of the crime charged. Even though this indictment has been returned against the defendant, the defendant begins this trial with absolutely no evidence against him. The defendant has pleaded "Not Guilty" to this indictment and, therefore, denies that he is guilty of the charge.

O'Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 13.04

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GOVERNMENT'S INSTRUCTION NO. 9 "ON OR ABOUT"-EXPLAINED The indictment charges that the offense was committed "on or about" a certain date. Although it is necessary for the government to prove beyond a reasonable doubt that the offense was committed on a date reasonably near the date alleged in the indictment, it is not necessary for the government to prove that the offense was committed precisely on the date charged.

O'Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 13.05

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GOVERNMENT'S INSTRUCTION NO. 10 VOLUNTARINESS OF STATEMENT BY DEFENDANT (SINGLE DEFENDANTS) Evidence has been presented about statements attributed to the defendant alleged to have been made after the commission of the crime charged in this case but not made in court. Such evidence should always be considered by you with caution and weighed with care. Any such statements should be disregarded entirely unless the other evidence in the case convinces you by a preponderance of the evidence that the statement was made knowingly and voluntarily. In determining whether any such statement was knowingly and voluntarily made, consider, for example, the age, gender, training, education, occupation, and physical and mental condition of the defendant, and any evidence concerning his treatment while under interrogation if the statement was made in response to questioning by government officials, and all the other circumstances in evidence surrounding the making of the statement. If, after considering all this evidence, you conclude by a preponderance of the evidence that the defendant's statement was made knowingly and voluntarily, you may give such weight to the statement as you feel it deserves under all the circumstances. A preponderance of evidence is evidence sufficient to persuade you that a fact is more likely present than not present.

1.25 and 1.05.01 Pattern Jury Instructions, Criminal Cases, Tenth Circuit ( 2005) -13-

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GOVERNMENT'S INSTRUCTION NO. 11 SELF-DEFENSE OR DEFENSE OF ANOTHER You have heard evidence that William Sablan was acting in self-defense. A person is entitled to defend himself against the immediate use of unlawful force. But the right to use force in such a defense is limited to using only as much force as reasonably appears to be necessary under the circumstances. A person may use force which is intended or likely to cause death or great bodily harm only if he reasonably believes that force is necessary to prevent death or great bodily harm to himself. To find the defendant guilty of the crime charged in the indictment or any of its lesser-included offenses, you must be convinced that the government has proved beyond a reasonable doubt: Either, the defendant did not act in self-defense, Or, it was not reasonable for the defendant to think that the force he used was necessary to defend himself against an immediate threat.

1.28 Pattern Jury Instructions, Criminal Cases, Tenth Circuit ( 2005) (modified to refer to lesser-included offenses). -14-

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GOVERNMENT'S INSTRUCTION NO. 12 FIRST DEGREE MURDER 18 U.S.C. § 1111 The defendant is charged with first degree murder in violation of 18 U.S.C. § 1111. Section 1111 makes it a crime to unlawfully kill a human being with malice aforethought. Every murder committed by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing, is murder in the first degree. To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: the defendant caused the death of Joey Jesus Estrella; Second: the defendant killed Mr. Estrella with malice aforethought and not in sudden quarrel or under heat of passion; Third: the killing was premeditated; Fourth: the killing took place at the Special Housing Unit of the United States Penitentiary in Florence, Colorado, a place within the special maritime and territorial jurisdiction of the United States; and Fifth: the defendant did not kill Mr. Estrella in self-defense. To kill "with malice aforethought" means either to kill another person deliberately and intentionally, or to act with callous and wanton disregard for human life. To find malice aforethought, you need not be convinced that the defendant hated Mr. Estrella or felt ill will toward him at the time. -15-

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In determining whether the killing was with malice aforethought, you may consider the use of a weapon or instrument, and the manner in which death was caused. The term "heat of passion" means a passion, fear or rage in which the defendant loses his normal self-control, as a result of circumstances that provoke such a passion in an ordinary person, but which did not justify the use of deadly force. A killing is "premeditated" when it is the result of planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough for the killer, after forming the intent to kill, to be fully conscious of that intent. You should consider all the facts and circumstances preceding, surrounding, and following the killing, which tend to shed light upon the condition of the defendant's mind, before and at the time of the killing.

2.52 Pattern Jury Instructions, Criminal Cases, Tenth Circuit ( 2005) (modified territorial and maritime jurisdictional definition incorporated in elements); United States v. Visinaiz, 428 F.3d 1300, 1308-09 (10 th Cir. 2005) (combining heat of passion with malice aforethought as linked concepts). -16-

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GOVERNMENT'S INSTRUCTION NO. 13 INTOXICATION DEFENSE FIRST DEGREE MURDER One of the issues in this case is whether the defendant was intoxicated at the time the first degree murder was committed. Being under the influence of alcohol provides a legal excuse for the commission of first degree murder only if the effect of the alcohol was so extreme that it entirely suspended the defendant's power of reason, or rendered the defendant wholly incapable of forming the requisite premeditation to commit first degree murder.

9.06 Manual of Model Jury Instructions, Eighth Circuit (West 2003) (modified w/ definition of intoxication as stated in United States v. Nacotee, 159 F.3d 1073, 1076 (7 th Cir. 1998)) -17-

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GOVERNMENT'S INSTRUCTION NO. 14 DEFENSE OF ABNORMAL MENTAL CONDITION FIRST DEGREE MURDER

The existence of a mental disease or defect will not alone suffice to diminish the defendant's criminal responsibility. You must determine, considering all the evidence, whether the defendant's mental disease or defect rendered him unable to act with deliberation and premeditation at the time of the offense.

United States v. Peterson, 509 F.2d 408, 414 (D.C.Cir. 1973)

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GOVERNMENT'S INSTRUCTION NO. 15 LESSER INCLUDED OFFENSE - SECOND DEGREE MURDER 18 U.S.C. § 1111 If you unanimously find the defendant not guilty of first degree murder, or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense, then you must determine whether the defendant is guilty or not guilty of second degree murder. The difference between first degree murder and second degree murder is that, to convict the defendant of second degree murder, the government does not have to prove that the killing was premeditated. Premeditation is typically associated with killing in cold blood, and requires a period of time in which the accused deliberates or thinks the matter over before acting. This is an element of the greater offense, but not of the lesser included offense. For you to find the defendant guilty of second degree murder, the government must prove each of the following elements beyond a reasonable doubt: First: the defendant caused the death of Joey Jesus Estrella; Second: the defendant killed Mr. Estrella with malice aforethought; and Third: the killing took place at the Special Housing Unit of the United States Penitentiary in Florence, Colorado, a place within the special maritime and territorial jurisdiction of the United States. If you are convinced that the government has proved all of these elements beyond a reasonable doubt, you may find the defendant guilty of the lesser included offense of

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second degree murder. If you have a reasonable doubt about any of these elements, then you must find the defendant not guilty of second degree murder. You are instructed that intoxication and having an abnormal mental condition are not defenses to second degree murder.

1.33 and 2.53 Pattern Jury Instructions, Criminal Cases, Tenth Circuit ( 2005) (modified); United States v. Hatatley, 130 F.3d 1399, 1405 (10 th Cir. 1997) (intoxication not a defense to second degree murder); United States v. Veach, 455 F.3d 628, 631 (6 th Cir. 2006) (diminished capacity is not a defense to a general intent crime).

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GOVERNMENT'S INSTRUCTION NO. 16 LESSER INCLUDED OFFENSE - VOLUNTARY MANSLAUGHTER 18 U.S.C. § 1112 If you unanimously find the defendant not guilty of first degree murder and second degree murder, or if, after all reasonable efforts, you are unable to agree on a verdict as to either of those offenses, then you must determine whether the defendant is guilty or not guilty of voluntary manslaughter. One difference between second degree murder and voluntary manslaughter is that, to convict the defendant of voluntary manslaughter, the government does not have to prove malice aforethought. This is an element of the greater offense, but not of the lesser included offense. For you to find the defendant guilty of voluntary manslaughter, the government must prove each of the following elements beyond a reasonable doubt: First: the defendant killed Joey Jesus Estrella; Second: the defendant acted unlawfully; Third: while in sudden quarrel or heat of passion, and therefore without malice, the defendant: (a) intentionally killed Joey Jesus Estrella; or (b) intended to cause Mr. Estrella serious bodily injury; or (c) acted recklessly with extreme disregard for human life;

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Fourth: the killing took place at the Special Housing Unit of the United States Penitentiary in Florence, Colorado, a place within the special maritime and territorial jurisdiction of the United States. The term "intentionally killed" as used in this instruction means either 1. a specific purpose to take the life of another human being, or 2. a willingness to act knowing that the death of another human being is practically certain to follow from that conduct. The term "heat of passion" means a passion, fear or rage in which the defendant loses his normal self-control, as a result of circumstances that provoke such a passion in an ordinary person, but which did not justify the use of deadly force. If you are convinced that the government has proved all of these elements beyond a reasonable doubt, you may find the defendant guilty of the lesser included offense of voluntary manslaughter. If you have a reasonable doubt about any of these elements, then you must find the defendant not guilty of voluntary manslaughter. You are instructed that intoxication and having an abnormal mental condition are not defenses to voluntary manslaughter.

1.33 and 2.54 Pattern Jury Instructions, Criminal Cases, Tenth Circuit ( 2005) (modified); United States v. Brown, 287 F.3d 965, 977 (10 th Cir. 2002) (voluntary intoxication not a defense to voluntary manslaughter); United States v. Veach, 455 F.3d 628, 631 (6 th Cir. 2006) (diminished capacity is not a defense to a general intent crime).

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GOVERNMENT'S INSTRUCTION NO. 17 AID AND ABET 18 U.S.C. § 2(A) The indictment also charges a violation of 18 U.S.C. § 2, which provides that: "Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." This law makes it a crime to intentionally help someone else commit a crime. To find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: someone else committed the charged crime, and Second: the defendant intentionally associated himself in some way with the crime and intentionally participated in it as he would in something he wished to bring about. This means that the government must prove that the defendant consciously shared the other person's knowledge of the underlying criminal act and intended to help him. The defendant need not perform the underlying criminal act, be present when it is performed, or be aware of the details of its commission to be guilty of aiding and abetting. But a general suspicion that an unlawful act may occur or that something criminal is happening is not enough. Mere presence at the scene of a crime and knowledge that a crime is being committed are also not sufficient to establish aiding and abetting.

2.06 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) -23-

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GOVERNMENT'S INSTRUCTION NO. 18 PROOF OF KNOWLEDGE OR INTENT The intent of a person or the knowledge that a person possesses at any given time may not ordinarily be proved directly because there is no way of directly scrutinizing the workings of the human mind. In determining the issue of what a person knew or what a person intended at a particular time, you may consider any statements made or acts done by that person and all other facts and circumstances received in evidence which may aid in your determination of that person's knowledge or intent. You may infer, but you are certainly not required to infer, that a person intends the natural and probable consequences of acts knowingly done. It is entirely up to you, however, to decide what facts to find from the evidence received during this trial.

O'Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 17.07

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GOVERNMENT'S INSTRUCTION NO. 19 DUTY TO DELIBERATE--VERDICT FORM In a moment the bailiff will escort you to the jury room and provide each of you with a copy of the instructions that I have just read. Any exhibits admitted into evidence will also be placed in the jury room for your review. When you go to the jury room, you should first select a foreperson, who will help to guide your deliberations and will speak for you here in the courtroom. The second thing you should do is review the instructions. Not only will your deliberations be more productive if you understand the legal principles upon which your verdict must be based, but for your verdict to be valid, you must follow the instructions throughout your deliberations. Remember, you are the judges of the facts, but you are bound by your oath to follow the law stated in the instructions. To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on the crime charged in the indictment. Your deliberations will be secret. You will never have to explain your verdict to anyone. You must consult with one another and deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. -25-

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Remember at all times, you are judges--judges of the facts. You must decide whether the government has proved the defendant guilty beyond a reasonable doubt. A form of verdict has been prepared for your convenience. [Explain the Verdict Form] The foreperson will write the unanimous answer of the jury in the space provided, either guilty or not guilty. At the conclusion of your deliberations, the foreperson should date and sign the verdict. If you need to communicate with me during your deliberations, the foreperson should write the message and give it to the bailiff. I will either reply in writing or bring you back into the court to respond to your message. Under no circumstances should you reveal to me the numerical division of the jury.

1.23 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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GOVERNMENT'S INSTRUCTION NO. 20 COMMUNICATION WITH THE COURT If you want to communicate with me at any time during your deliberations, please write down your message or question and give it to [the bailiff] [my law clerk], who will bring it to my attention. I will respond as promptly as possible, either in writing or by having you return to the courtroom so that I can address you orally. I caution you, however, that with any message or question you might send, you should not tell me any details of your deliberations or indicate how many of you are voting in a particular way on any issue. Let me remind you again that nothing I have said in these instructions, nor anything I have said or done during the trial and sentencing proceedings, was meant to suggest to you what I think your decision should be. That is your exclusive responsibility.

1.43 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 00-cr-00531-WYD-1 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant.

SPECIAL VERDICT FORM

FIRST DEGREE MURDER - As Charged We, the jury, upon our oaths, unanimously find the defendant WILLIAM CONCEPCION SABLAN: Not Guilty Guilty of first degree murder as charged in the indictment.

FOREPERSON

Dated this

day of

, 2007.

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SECOND DEGREE MURDER - Lesser Included Offense We, the jury, upon our oaths, having found the defendant WILLIAM CONCEPCION SABLAN "Not Guilty" of the crime of first degree murder, now find the defendant Not Guilty Guilty of the lesser included offense of second degree murder, which is necessarily included in the crime of first degree murder charged in the indictment.

FOREPERSON

Dated this

day of

, 2007.

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VOLUNTARY MANSLAUGTHTER - Lesser Included Offense We, the jury, upon our oaths, having found the defendant WILLIAM CONCEPCION SABLAN "Not Guilty" of the crime of second degree murder, now find the defendant Not Guilty Guilty of the lesser included offense of voluntary manslaughter, which is necessarily included in the crime of first degree murder charged in the indictment.

FOREPERSON

Dated this

day of

, 2007.

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GOVERNMENT'S INSTRUCTION NO. 1 SENTENCING CHOICES AND RESPONSIBILITY Members of the jury, you have unanimously found the defendant, William Concepcion Sablan, guilty of first degree murder as charged in the indictment. This offense is punishable by death or by imprisonment for life. In the federal system, a sentence of life imprisonment precludes release at any time because there is no parole. The choice between these alternatives is left exclusively to you. Your unanimous decision will be binding on the court, and I will impose sentence on the defendant according to your choice. If you cannot unanimously agree on the appropriate punishment, I will sentence the defendant to life imprisonment without possibility of release.

3.01 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (modified to add sentence re life meaning no release because no parole in the federal system).

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GOVERNMENT'S INSTRUCTION NO. 2 SUMMARY OF DELIBERATIVE PROCESS Let me summarize the deliberative process you must follow in considering the sentencing decision before you. After this broad summary, I will discuss specific matters in more detail. Your deliberations will be organized into two separate steps, each with its own distinct focus. First, you must determine whether the defendant is eligible for a sentence of death. Unless and until you find that the defendant is eligible for a death sentence, it is improper for you even to consider whether such a sentence would be justified. Second, if you find the defendant is eligible for a death sentence, you must determine whether such a sentence is justified. Eligibility for death sentence: To find the defendant eligible for a death sentence, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: the defendant was at least eighteen years old when the capital offense was committed; Second: the defendant acted with a level of intent sufficient to allow consideration of the death penalty, which may be different than the intent required to convict the defendant of the offense, and Third: the existence of at least one statutory aggravating factor.

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Aggravating factors will be explained in a later instruction, but generally they reflect circumstances that tend to support imposition of the death penalty, just as mitigating factors reflect circumstances that tend to suggest a sentence of death should not be imposed. If you find that any one or more of these three eligibility conditions has not been proved beyond a reasonable doubt by the government, the defendant is not eligible for a sentence of death, and your deliberations are over. If you find that the government has proved beyond a reasonable doubt that all of these conditions are satisfied, the defendant is eligible for a death sentence and you must proceed to the next stage of deliberations, to decide whether such a sentence is justified. Selection of Sentence: The selection stage, which focuses on all relevant aggravating and mitigating factors, is broken down into two steps. First, you must determine what factors have been proved. As for the aggravating factors, you must unanimously determine that the government has proved beyond a reasonable doubt any additional statutory or non-statutory factors relied upon to support the death sentence. In contrast, the defendant may prove mitigating factors by just a preponderance of the evidence. Moreover, it is up to each juror to decide individually whether any mitigating factor exists­there is no requirement that the defendant establish mitigating factors unanimously. The second step involves a weighing process. You must decide whether the proved aggravating factors outweigh the proved mitigating factors sufficiently to justify the death sentence. (If you do not find any mitigating factors, you still must decide whether the aggravating factors are sufficient to justify imposition of a death sentence.) If you determine -33-

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

3.02 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (modified to strike "and, thus, must be imposed" in second paragraph; by striking "Justification and" and "justification" on the second page; and by striking the first sentence of the penultimate paragraph).

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GOVERNMENT'S INSTRUCTION NO. 3 EVIDENCE You will be called upon to make findings on various matters. In doing so you are to consider only the testimony and exhibits admitted into evidence during the trial on the offense charged and the sentencing proceeding that has just concluded. I remind you that the statements, questions, and arguments of counsel are not evidence. And, of course, anything else you may have seen or heard outside the courtroom is not evidence and must be disregarded. During these proceedings, I have ruled on objections to certain testimony and items of evidence. The admissibility of evidence is a legal matter for the court to resolve, and you must not concern yourselves with the reasons for my rulings. In your deliberations, you may not draw any inferences from my decision to exclude or admit evidence. You are the sole judges of the credibility or "believability" of each witness and the weight to be given to the witness's testimony. An important part of your job will be making judgments about the testimony of the witnesses [including the defendant] who testified in this case. You should think about the testimony of each witness you have heard and decide whether you believe all or any part of what each witness had to say, and how important that testimony was. In making that decision, I suggest that you ask yourself a few questions: Did the witness impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome in this case? Did the witness have any relationship with either the government or the defense? Did the witness seem to -35-

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have a good memory? Did the witness clearly see or hear the things about which he/she testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness's testimony differ from the testimony of other witnesses? When weighing the conflicting testimony, you should consider whether the discrepancy has to do with a material fact or with an unimportant detail. And you should keep in mind that innocent misrecollection - like failure of recollection - is not uncommon. [The testimony of the defendant should be weighed and his credibility evaluated in the same way as that of any other witness.] In some cases, such as this one, scientific, technical, or other specialized knowledge may assist the jury in understanding the evidence or in determining a fact in issue. A witness who has knowledge, skill, experience, training or education, may testify and state an opinion concerning such matters. You may accept such an opinion in whole or in part, or reject it in whole or in part. You should consider opinion testimony just as you consider other testimony in this trial. Give opinion testimony as much weight as you think it deserves, considering the education and experience of the witness, the soundness of the reasons given for the opinion, and other evidence in the trial.

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In reaching a conclusion on particular point, or ultimately in selecting a sentence in this case, do not make any decisions simply because there were more witnesses on one side than on the other.

3.03 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005); 1.08 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005); 1.17 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (first sentence in second paragraph replaced to add concept of jury being able to accept or reject in whole or in part).

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GOVERNMENT'S INSTRUCTION NO. 4 SPECIAL FINDINGS FORM The process by which you must reach your decision requires that you make and record certain findings in a specific order. To ensure that your findings are stated clearly and in the required sequence, you will be given a Special Findings Form, to which I will refer throughout my instructions. You will also be given a copy of my instructions. In light of the complexity and importance of your task, it is essential that you consider and follow the instructions and Form together as you conduct your deliberations. Moreover, if any statement by counsel about the law guiding your deliberations appears to be different, you must be guided by the instructions and Form that I give you. It would be a violation of your sworn duty as jurors to base your decision upon any view of the law other than that reflected in the instructions and Form.

3.04 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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GOVERNMENT'S INSTRUCTION NO. 5 AGE AT TIME OF OFFENSE Before you may consider whether the death penalty is an appropriate sentence in this case, you must unanimously find beyond a reasonable doubt that the government has proved the defendant was at least eighteen (18) years old at the time of the offense. If you do so find, answer "yes" on the appropriate page of the Special Findings Form and continue your deliberations. If you do not so find, answer "no" on the Form, sign Verdict III­B (Life Imprisonment), and certify your decision as described in section IV of the Form, which will conclude your deliberations.

3.05 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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GOVERNMENT'S INSTRUCTION NO. 6 INTENT REQUIREMENT Before you may consider whether the death penalty is an appropriate sentence in this case, you must unanimously find beyond a reasonable doubt that the government proved that, in committing the offense charged in the indictment, the defendant committed one of the following acts: 1. intentionally killed the victim; or 2. intentionally inflicted serious bodily injury that resulted in the death of the victim; or 3. intentionally participated in an act, contemplating that the life of a person would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a result of the act; or 4. intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act. These alternatives are set out in the Special Findings Form, and you must consider and resolve them separately. For each one, you must decide whether you unanimously agree that it has been proved beyond a reasonable doubt, and indicate your answer on the Form, and then continue with the next until you have finished. If you answer "no" to all four -40-

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alternatives, your deliberations are over. Sign Verdict III­B (Life Imprisonment) and certify your decision as described in section IV of the Form. If you answer "yes" to one or more, proceed to the next step in your deliberations.

3.06 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005).

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GOVERNMENT'S INSTRUCTION NO. 7 AGGRAVATING AND MITIGATING FACTORS GENERALLY Although it is left solely to you to decide whether the death penalty should be imposed, Congress has narrowed and channeled your discretion in specific ways, particularly by directing you to consider and weigh aggravating and mitigating factors presented by the case. These factors guide your deliberations by focusing on certain circumstances surrounding the crime, characteristics of the victim, and personal traits, character, and background of the defendant. Aggravating factors are considerations that tend to support imposition of the death penalty. The government is required to specify the factors it relies on, and your deliberations are constrained by its choice. Even if you believe that the evidence reveals other aggravating factors, you may not consider them. Mitigating factors are considerations that suggest that a sentence of death should not be imposed. They need not justify or excuse the defendant's conduct, but they do suggest that a punishment less than death may be sufficient to do justice in the case. Aside from the condition that the government prove at least one statutory aggravating factor, your task is not simply to decide whether, which, or how many aggravating and mitigating factors are present in the case. You also must evaluate and weigh such factors and,

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ultimately, make a unique individualized judgment about the justification for and appropriateness of the death penalty as a punishment for the defendant.

3.07 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) -43-

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GOVERNMENT'S INSTRUCTION NO. 8 STATUTORY AGGRAVATING FACTORS Before you may consider whether the death penalty is an appropriate sentence for the defendant, you must unanimously find beyond a reasonable doubt that the government has proved at least one of the following aggravating factor prescribed by Congress and alleged by the government in this case: 1. Previous Conviction of Violent Felony Involving Firearm. The defendant was previously convicted of a federal or state offense punishable by a term of imprisonment of more than one year, involving the use or attempted use or threatened use of a firearm (as defined in the instruction below) against another person. The facts underlying this prior conviction involved the takeover of the Central Male Detention Facility of the Department of Public Safety, Saipan, Commonwealth of the Northern Mariana Islands, by the defendant and other inmates at that facility. Chinese inmates were held hostage and threatened with injury and death by the defendant. Defendant was convicted of hostage taking, being a felon in possession of a firearm, and transferring a firearm knowing that it would be used to commit a crime of violence, to wit: assault with a dangerous weapon. These convictions are regarded as "federal" offenses for purposes of this aggravating factor. 2. Heinous or Depraved Manner of Committing the Offense. The defendant committed the offense in an especially heinous and depraved manner that involved serious physical abuse to the victim.

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

3.08 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (modified as to delineation of "federal" offenses)

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GOVERNMENT'S INSTRUCTION NO. 9 PREVIOUS CONVICTION OF VIOLENT FELONY INVOLVING FIREARM You must unanimously find that the government has proved beyond a reasonable doubt that the defendant was previously convicted of a felony involving the use or attempted or threatened use of a firearm against another person. If you are convinced that the government has, in fact, proved beyond a reasonable doubt that the defendant was previously convicted of hostage taking, being a felon in possession of a firearm, and transferring a firearm knowing that it will be used to commit a crime of violence, you are instructed that these offenses are, in fact, felonies.

3.08.2 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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GOVERNMENT'S INSTRUCTION NO. 10 FIREARM DEFINED A firearm is (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; or (B) the frame or receiver of any such weapon; or (C) any firearm muffler or firearm silencer; or (D) any destructive device. A firearm, however, does not include an antique firearm.

3.08.2.1 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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GOVERNMENT'S INSTRUCTION NO. 11 HEINOUS, CRUEL, OR DEPRAVED MANNER OF COMMITTING THE OFFENSE You must unanimously find that the government has proved beyond a reasonable doubt that the defendant committed the offense in an especially heinous or depraved manner in that it involved serious physical abuse to the victim. Serious physical abuse may be inflicted regardless of whether the victim is conscious of the abuse at the time it was inflicted. The defendant, however, must have specifically intended the abuse, apart from the killing. Serious physical abuse means a significant or considerable amount of injury or damage to the victim's body which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Serious physical abuse may be inflicted either before or after death. Pertinent factors which you may consider in determining whether a killing was especially heinous, cruel, or depraved include: 1. Whether the defendant demonstrated enjoyment of the killing. 2. Whether the conduct constituted intentional infliction of senseless and gratuitous violence.

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3. Whether significant injury and damage was inflicted upon the victim's body above and beyond what was necessary to commit the murder.

3.08.6 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (modified to remove references to torture and cruel); United States v. Jones, 132 F.3d 232, 250 (5 th Cir. 1998) (definition of "depraved"); Richmond v. Lewis, 506 U.S. 40, 51 (1992) (serious physical abuse may be inflicted before or after death); Lewis v. Jeffers, 497 U.S. 764, 766-67 (1990) (same); United States v. Hall, 152 F.3d 381, 414 (5 th Cir. 1998) (same).

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GOVERNMENT'S INSTRUCTION NO. 12 NON-STATUTORY AGGRAVATING FACTORS The government has also alleged the existence of a non-statutory aggravating factor in this case. Non-statutory aggravating factors tend to support imposition of the death

penalty, though they have not been specifically listed by Congress. The factor alleged by the government is: 1. Future Dangerousness of the Defendant. This involves the likelihood that defendant will continue to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others. This non-statutory aggravating factor is set out in the Special Findings Form and, just as with the statutory factors, you must consider it separately. You must decide whether you unanimously agree that it has been proved by the government beyond a reasonable doubt, and indicate your answer on the Form. Regardless of your findings on this non-statutory factor, you must proceed to the next step in your deliberations, which involves consideration of mitigating factors.

3.09 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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GOVERNMENT'S INSTRUCTION NO. 13 MITIGATING FACTORS The law never assumes or presumes that a defendant should be sentenced to death. Accordingly, the defense is under no obligation to establish the existence of any mitigating factors (or to disprove the existence of any aggravating factors). A defendant may, of course, choose to argue specific mitigating factors, and the defendant has offered evidence on the following factors in this case: [Insert mitigating factors.] The defendant need only prove these mitigating factors by a preponderance of the evidence; that is, by evidence sufficient to persuade you that the factor is more likely present than not present. And the law does not require unanimous agreement with regard to mitigating factors. Any juror may find the existence of a mitigating factor and must then consider that factor in weighing the aggravating and mitigating factors even though other jurors may not agree that the particular mitigating factor has been established. Your discretion in considering mitigating factors is much broader than your discretion in considering aggravating factors. The law permits you to consider any other relevant mitigating information presented in this proceeding, in addition to the specific factors recited above, so long as its existence was proved by a preponderance of the evidence. "Relevant mitigating information" includes anything in the defendant's background, record, character, or any circumstances of the offense, which suggests to you that a sentence of death should not be imposed. Throughout these instructions, references to mitigating factors should be -51-

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understood to include other relevant mitigating information. Record your findings as to the mitigating factors as indicated by the Special Findings Form. Regardless of your findings as to these factors, however, you must proceed to the next step in your deliberations, which involves weighing aggravating and mitigating factors.

3.10 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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GOVERNMENT'S INSTRUCTION NO. 14 IMPAIRED CAPACITY In order for the jury to find that the mitigating factor of impaired capacity exists, at least one of you must find that the defendant has proved by a preponderance of the evidence that the defendant's capacity to appreciate the wrongfulness of his conduct or conform his conduct to the requirements of law was significantly impaired, even though his capacity was not so impaired as to constitute a defense to the charge.

3.10.1 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (modified with introductory sentence)

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GOVERNMENT'S INSTRUCTION NO. 15 WEIGHING AGGRAVATION AND MITIGATION After completing your findings regarding aggravating and mitigating factors, you must engage in a weighing process to determine whether a sentence of death is justified. In this process, you must consider only those aggravating factors, statutory and non-statutory, that you unanimously found to exist. Each of you must also consider any mitigating factors that you individually found to exist, and you each may consider any mitigating factors found by any of the other jurors. You must determine whether the proven aggravating factors sufficiently outweigh any proven mitigating factors to justify a sentence of death. The task of weighing aggravating and mitigating factors against each other, or weighing aggravating factors alone if there are no mitigating factors, is not a mechanical process. You should not simply count the number of factors, but consider the particular character of each, which may be given different weight or value by different jurors. What constitutes sufficient justification for a sentence of death in this case is exclusively left to you. Your role is to be the conscience of the community in making a moral judgment about the worth of an individual life balanced against the societal value of what the government contends is deserved punishment for the defendant's offense. Whatever aggravating and mitigating factors are found, a jury is never required to conclude the weighing process in favor of a sentence of death. But your decision must be a reasoned one, free from the influence of passion, prejudice, or arbitrary consideration.

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

3.11 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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GOVERNMENT'S INSTRUCTION NO. 16 RIGHT TO JUSTICE WITHOUT DISCRIMINATION In considering whether a sentence of death is justified, you shall not consider the race, color, religious beliefs, national origin, or gender of the defendant or of any victim. You are not to impose a death sentence unless you conclude that you would do so no matter what the race, color, religious beliefs, national origin, or gender of the defendant or the victim may be. Whatever sentencing decision you reach, each of you is required by law to sign a certification attesting to the fact that you have followed this instruction. The certification is set out in section IV of the Special Findings Form.

3.08.6 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005)

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GOVERNMENT'S INSTRUCTION NO. 17 SPECIAL FINDINGS FORM I. Findings Regarding Defendant's Eligibility for a Death Sentence A. Defendant's Age at Time of Offense Do you unanimously find that the government proved beyond a reasonable doubt that the defendant was eighteen (18) years of age at the time he committed the offense for which sentence is to be imposed? YES _______ NO _______ If you answered yes, proceed to the next section (I­B) of this Form. If you answered no, then stop your deliberations, sign the section of this Form indicating a verdict of life imprisonment (III­B), certify your decision as described in section IV, and notify the court that you have reached a decision. B. Defendant's Intent in Commission of Offense For each type of intent specified below, answer "yes" or "no" according to whether you unanimously find that the government proved beyond a reasonable doubt that the defendant acted with the specified intent: 1. The defendant intentionally killed the victim; YES _______ NO _______

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2. The defendant intentionally inflicted serious bodily injury that resulted in the victim's death; YES _______ NO _______ 3. The defendant intentionally participated in an act, contemplating that a person's life would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a result of the act; YES _______ NO _______ 4. The defendant intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act constituted a reckless disregard for human life and the victim died as a direct result of the act. YES _______ NO _______

If you answered yes to one or more of these alternatives, proceed to the next section (I­C) of this Form. If you answered no to all of them, then stop your deliberations, sign the section of this Form indicating a verdict of life imprisonment (III­B), certify your decision as described in section IV, and notify the court that you have reached a decision. -58-

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C. Statutory Aggravating Factors The government has alleged that the following statutory aggravating factors are present in this case. For each factor, answer "yes" or "no" according to whether you unanimously find that the government proved the existence of the factor beyond a reasonable doubt: 1. The defendant has previously been convicted of a federal or state offense punishable by a term of imprisonment of more than one year, involving the use or attempted or threatened use of a firearm against another person: YES _______ NO _______ 2. The defendant committed the offense in an especially heinous or depraved manner in that it involved serious physical abuse to the victim: YES _______ NO _______ If you answered "yes" to one or more of these statutory aggravating factors, you have found the defendant eligible for a death sentence and you should proceed to the next section (II) of this Form to consider whether such a sentence is justified under the circumstances of the case. If you answered "no" to all of these factors, then you have found the defendant ineligible for a death sentence and you should stop your deliberations, sign the section of this Form indicating a verdict of life imprisonment (III­B), certify your decision as described in section IV, and notify the court that you have reached a decision. -59-

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II. Findings Regarding Justification for a Death Sentence A. Non-Statutory Aggravating Factors The government has alleged that the following non-statutory aggravating factor is present in this case. Answer "yes" or no according to whether you unanimously find that the government proved the existence of the factor beyond a reasonable doubt: 1. Future Dangerousness of the Defendant: the defendant is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others. YES _______ NO _______ Regardless of your findings on these non-statutory factors, you must proceed to the next section (II­B) of this Form. B. Mitigating Factors The defendant has alleged that the following mitigating factors are present in this case. For each of these factors, answer "yes" or "no" according to whether any juror (or jurors) finds that the defendant has proved the existence of the factor by a preponderance of the evidence: Insert alleged mitigating factors (which must match those specified in the associated instruction), each followed by blanks for "yes" or "no" findings. In this instance, the "yes" blank should indicate that any one or more jurors finds the factor was proved, while the "no" blank should -60-

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indicate that no juror finds the factor was proved. As explained in the Court's instructions, the law permits you to consider any other relevant mitigating information, in addition to the specific mitigating factors alleged by the defendant listed above, so long as you find that it was proved by a preponderance of the evidence. As with specific mitigating factors, your findings in this regard need not be unanimous. Did one or more jurors find that other relevant mitigating information was proved? YES _______ NO _______ If you answered "yes," list the additional mitigation information you found to be present in the space provided immediately below: When you have completed your findings regarding mitigation, proceed to the next section (II­C) of this Form, where you will weigh the aggravating factors with the mitigating factors, if any, that you have found to be present in this case. C. Weighing Process The question you must answer at this stage of your deliberations is whether the proven aggravating factors sufficiently outweigh the proven mitigating factors and information to justify a sentence of death or, if you have not found any mitigation present, whether the aggravating factors considered alone justify a death sentence. If you unanimously find that the weight of the aggravating factors is sufficient to justify a sentence of death, answer "yes" below, record your verdict on Verdict--Sentence of Death, certify your decision as described -61-

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in section IV, and notify the court that you have reached a decision. If you do not unanimously find that a death sentence is justified, answer "no" below, stop your deliberations, sign Verdict--Life Imprisonment, certify your decision as described in section IV, and notify the court that you have reached a decision. YES _______ NO _______ III. Imposition of Sentence This is the last step in your deliberations. If you have made all of the findings necessary to make the defendant eligible for a death sentence and have unanimously concluded that such a sentence is justified and therefore must be imposed on the defendant, record your decision by collectively signing the verdict set out in Verdict--Sentence of Death below, sign the certification that follows in section IV, and notify the court that you have reached a decision. If you do not unanimously conclude that a sentence of death is justified and therefore must be imposed, sign the verdict for life imprisonment set out in Verdict--Life Imprisonment below, sign the certification in section IV, and notify the court that you have reached a decision.

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VERDICT­SENTENCE OF DEATH Based upon our consideration of the evidence and in accordance with the court's instructions, we find by unanimous vote that a sentence of death shall be imposed on the defendant. 1. _______________________ 2. _______________________ 3. _______________________ 4. _______________________ 5. _______________________ 6. __