Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 1 of 31

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

William Sablan's Proposed Jury Instructions For the Penalty Phase ________________________________________________________________________ William Sablan, through undersigned court-appointed counsel submits the attached proposed jury instructions for a penalty phase. We reserve the right to modify and/or add to these proposals in light of further developments. Dated: December 18, 2006 Respectfully submitted, Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Nathan Chambers Chambers, Dansky & Mulvahill 1601Blake Street, Suite 300 Denver, CO 80202 303-825-2222 Counsel of William Sablan

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 2 of 31

TABLE OF CONTENTS Page Sentencing Choices and Responsibility...............................................................................1 Burden of Proof....................................................................................................................4 Evidence ­ Witness Credibility............................................................................................6 Exemptions Age............................................................................................................................8 Mental Retardation....................................................................................................9 Threshold Findings of Intent..............................................................................................10 Aggravating and Mitigating Factors Generally..................................................................12 Statutory Aggravating Factors............................................................................................14 Previous Conviction of Violent Crime Involving a Firearm...................................16 Heinous or Depraved..............................................................................................17 Nonstatutory Aggravating Factors.....................................................................................19 Future Dangerousness.............................................................................................19 Mitigating Factors..............................................................................................................21 Weighing Aggravating and Mitigating Factors..................................................................23 Determination of Sentence.................................................................................................26 Justice without Discrimination...........................................................................................27 Concluding Instruction.......................................................................................................28 i

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 3 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Sentencing Choices and Responsibility) Members of the Jury: You have unanimously found the defendant, William Sablan, guilty of first degree murder as charged in the indictment. This offense is punishable by life imprisonment without possibility of release or death. As you have been instructed before, there is no parole in the federal system. Therefore, a sentence of life imprisonment means exactly that; the defendant will remain in a federal prison for the remainder of his natural life. The choice between these very serious alternatives is yours alone to make. The Court is required to impose whichever sentence you chose. If you cannot unanimously agree on the appropriate sentence, the Court will sentence William Sablan to life imprisonment without possibility of release. The instructions the Court is now giving you are a complete set of instructions on the law applicable to the sentencing decision as to William Sablan. During your deliberations you should therefore rely on these 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 sentencing decision upon any view of the law other than that which is given to you in these instructions. The Court has also prepared a Special Findings Form that you must complete. The form details the special findings you must make and will aid you in properly performing your deliberative duties. In light of the complexity and importance of your
1

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 4 of 31

task, it is essential that you consider and follow the instructions and the form together as you conduct your deliberations. Although Congress left it to you, the jury, to decide William Sablan's proper punishment, it has narrowed and channeled your discretion in specific ways particularly by making you consider and weigh any "aggravating" and "mitigating" factors present in this case. These factors have to do with the circumstances of the offense, and the personal traits, character, or background of William Sablan. Aggravating factors are those that would tend to support imposition of a death sentence. On the other hand, mitigating factors are those that suggest that life in prison without the possibility of release is the appropriate sentence in this case. Of course, your task is not simply to decide what aggravating and mitigating factors exist here, if any. Rather, you are called upon to evaluate any such factors and to make a unique, individualized choice between the death penalty and life in prison without possibility of release. In short, the law does not assume that every defendant found guilty of committing first degree murder should be sentenced to death. Rather, your decision on the question of punishment is a uniquely personal judgment which the law, in the final analysis, leaves up to each of you.

Note: Adapted from Sand, Reiss, Loughlin & Batterman Modern Federal Jury Instructions (Criminal Set), Vol. 3 Inst. 9A-2 (2003); Pattern Crim. Jury Instr. 10th Cir. § 3.01 (2006).

2

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 5 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Burden of Proof) The government, at all times, has the burden of proving to each and all of you, beyond a reasonable doubt, that the appropriate sentence for the defendant is death. Specifically, that means that the government must prove unanimously all of the following beyond a reasonable doubt: (1) William Sablan was at least eighteen years old at the time of the offense; (2) the existence of at least one threshold finding of requisite intent to cause death; (3) the existence of at least one statutory aggravating factor; (4) the existence, if any, of nonstatutory aggravating factors; and (5) all the aggravating factors found to exist sufficiently outweigh all the mitigating factors found to exist so as to make a sentence of death appropriate, or, in the absence of any mitigating factor, that the aggravating factors found to exist alone make a sentence of death appropriate. As you have been instructed before, a "reasonable doubt" is a doubt based upon reason and common sense after careful and impartial consideration of all the evidence or the lack of evidence. Proof beyond a reasonable doubt must be proof of such a convincing character that a reasonable person would rely and act upon it without hesitation in the most important matters of his or her own affairs. A defendant never has the burden of disproving the existence of anything which the government must prove beyond a reasonable doubt. The burden is wholly upon the government; the law does not at all require William Sablan to produce evidence that a particular aggravating factor does not exist or that death is not an appropriate sentence.
3

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 6 of 31

Thus, William Sablan is not required to assert or establish any mitigating factors. However, if he asserts mitigating factors, Mr. Sablan has the burden of establishing them by a preponderance of the evidence. Unlike aggravating factors which you must unanimously find proven, any one of you may find that a mitigating factor exists. To prove something by a preponderance of the evidence is a lesser standard of proof than proof beyond a reasonable doubt. To prove something by a 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 what evidence is more believable. If, however, the evidence is equally balanced, you cannot find that the mitigating factor has been proven. The preponderance of the evidence is not determined by the greater number of witnesses or exhibits presented by the government or the defendant. Rather, it is the quality and persuasiveness of the information which controls.

Note: Adapted from Sand, Reiss, Loughlin & Batterman Modern Federal Jury Instructions (Criminal Set), Vol. 3 Inst. 9A-3 (2003)

4

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 7 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Evidence ­ Witness Credibility) In making all the determinations you are required to make in this phase of the trial, you are to consider the testimony and exhibits admitted into evidence during the sentencing hearing we have just concluded. You may also consider any evidence presented during the guilt phase. The importance of your giving careful and thorough consideration to all of the evidence cannot be stressed enough. The statements, questions, and arguments of counsel are not evidence. And, of course, anything you may have seen or heard outside the courtroom is not evidence and must be disregarded. 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 see or hear the things testified about, the witness's memory, any motives that witness may have for having testified in 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.

5

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 8 of 31

Note: Adapted from Sand, Reiss, Loughlin & Batterman Modern Federal Jury Instructions (Criminal Set), Vol. 3 Inst. 9A-2 (2003)

6

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 9 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Age) Before you may even consider whether a death sentence may be appropriate in this case, you must unanimously find beyond a reasonable doubt that no exemptions preclude its applicability. Thus you must find that the government has proven that William Sablan was at least 18 years old at the time of the offense. This issue is presented in Section ___ of the Special Findings Form. When you have unanimously agreed, have your foreperson check "Yes" or "No" on the appropriate line. If you answer "No", then conclude your deliberations, sign the Certification in Section ___ of the form, and advise the Court that you have reached a decision. If you answer "Yes", then continue your deliberations and proceed to Section I. B.

Note: Adapted from Pattern Crim. Jury Instr. 10th Cir. § 3.02 (2006); 18 U.S.C. § 3591(a) ("[n]o person may be sentenced to death who was less than 18 years of age at the time of the offense").

7

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 10 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Mental Retardation) Before you may even consider whether a death sentence may be appropriate sentence in this case, you must unanimously find that no exemptions preclude its applicability. Thus you must consider whether William Sablan has proven to you by a preponderance of the evidence that he is mentally retarded. This issue is addressed in Section ___ of the Special Findings Form. When you have unanimously agreed, have your foreperson check "Yes" or "No" on the appropriate line. If you answer "Yes", then conclude your deliberations, sign the Certification in Section ___ of the form, and advise the Court that you have reached a decision. If you answer "No", than continue your deliberations and proceed to Section ___. If any one or more of you individually conclude that William Sablan has established by a preponderance of the evidence that he is mentally retarded, you should consider this as a mitigating factor and subsequently weigh it in the weighing, balancing process of the sentencing decision.

Note: Adapted from 18 U.S.C. § 3596(c) ("[a] sentence of death shall not be carried out upon a person who is mentally retarded"); Atkins v. Virginia, 536 U.S. 304, 314 n.10 (2002) (reading section 3596(c) as "a provision that prohibit[s] any individual who is mentally retarded from being sentenced to death or executed).

8

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 11 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Threshold Findings of Intent) Before you may even consider whether a death sentence may be appropriate in this case, you must unanimously find, beyond a reasonable doubt, that William Sablan had at least one of the following two threshold mental states alleged by the government: 1. William Sablan "intentionally killed or aided and abetted the intentional killing of the Joey Jesus Estrella"; and/or 2. William Sablan "intentionally inflicted or aided and abetted the intentional infliction of serious bodily injury which resulted in the death of Joey Jesus Estrella." There can be no sentence of death unless you unanimously agree that the government has proven at least one of these mental states of intent beyond a reasonable doubt. With regard to your findings, you may not rely solely upon your first-stage verdict of guilt or your factual determinations therein. Instead, you must now each decide this issue for yourselves again. Any threshold finding of intent must be based on William Sablan's personal actions and intent. Intent may be proven like anything else. You may consider any statements made and acts done by Mr. Sablan, and all the facts and circumstances in evidence which may aid in a determination of his intent. The two allegations of mental state of intent are set out in the Special Findings Form, and you must consider and resolve them separately. For each one, you must decide
9

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 12 of 31

whether you unanimously agree that it has been proven beyond a reasonable doubt. When you have unanimously agreed, have your foreperson check "Yes" or "No" on the appropriate lines on Section ___. If you answer "No" with respect to both, then conclude your deliberations, sign the Certification in Section ____ of the form, and advise the Court that you have reached a decision. If you answer "Yes" with respect to either or both alleged mental states of intent, then continue your deliberations and proceed to Section ____of the form. Carefully note that if you unanimously find one or both of the alleged mental states, these findings are not to be considered as an aggravating factor and may not be weighed by you in reaching your ultimate sentencing decision.

Note: Adapted from Sand, Reiss, Loughlin & Batterman Modern Federal Jury Instructions (Criminal Set), Vol. 3 Inst. 9A-7 (2003); Pattern Crim. Jury Instr. 10th Cir. § 3.06 (2006).

10

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 13 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Aggravating and Mitigating Factors Generally) Although it is left solely to you to decide whether the sentence should be life imprisonment without possibility of release or death, 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, and the 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 the sentence should be life imprisonment without the possibility of release. They need not justify or excuse the defendant's conduct, but they do suggest that a sentence of life imprisonment without possibility of release is a more appropriate sentence than death. Aside from the requirement that the government prove at least one statutory aggravating factor, your task is not simply to decide whether, which, or how many aggravating and mitigating factors are present in the case. You also must evaluate and weigh such factors and, ultimately, make a unique individualized judgment about the appropriate and justifiable sentence for William Sablan.
11

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 14 of 31

Note: Adapted from Pattern Crim. Jury Instr. 10th Cir. § 3.07 (2006).

12

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 15 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Statutory Aggravating Factors) Before you may even consider whether a sentence of death is appropriate in this case, you must unanimously find beyond a reasonable doubt that the government has proved at least one of the following aggravating factors prescribed by Congress, and alleged by the government in this case: 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." 2. "The defendant committed the offense in an especially heinous or depraved manner in that it involved serious physical abuse to the victim." 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 further below. Any finding, however, that one or more of these factors has been proven must be based on William Sablan's personal actions and intent. The statutory aggravating factors are set out in the Special Findings Form Section ___. You must consider and resolve them separately. You must decide for each one whether you unanimously agree that it has been proven beyond a reasonable doubt. When you have unanimously agreed, have your foreperson check "Yes" or "No" on the appropriate lines. If you answer "No" to both of the statutory aggravating factors, conclude your deliberations, sign the Certification in Section ___of the form, and advise
13

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 16 of 31

the Court you have reached a decision. If you answer "Yes" to one or both of the statutory aggravating factors, proceed to the next step in your deliberations, which involves consideration of any nonstatutory aggravating factors.

Note: Adapted from Sand, Reiss, Loughlin & Batterman Modern Federal Jury Instructions (Criminal Set), Vol. 3 Inst. 9A-8 (2003); Pattern Crim. Jury Instr. 10th Cir. § 3.08 (2006).

14

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 17 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Previous Conviction of Violent Crime Involving a Firearm) The first statutory aggravating factor alleged by the government is that "the defendant has been 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." The government has relied upon three offenses: hostage taking, felon in possession of a firearm, and transferring a firearm knowing it will be used to commit a crime of violence. None of the offenses have, as an essential element, the use, attempted use, or threatened use of a firearm. Therefore, you may not assume that a conviction for any of the offenses, even if proven, necessarily involved the use, attempted use, or threatened use of a firearm. This aggravating factor is set out in Section ___of the form. When you have unanimously agreed, have your foreperson check "Yes" or "No" on the appropriate line and proceed with the next statutory aggravating factor.

Note: Adapted from Pattern Crim. Jury Instr. 10th Cir. § 3.08 (2006).

15

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 18 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Heinous or Depraved) The government has alleged that "the defendant committed the offense in an especially heinous or depraved manner in that it involved serious physical abuse to the victim." "Heinous" means shockingly atrocious. For the killing to be heinous, it must involve such serious physical abuse of the victim as to set apart from other killings. "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, unconsciousness, extreme physical pain, substantial disfigurement, or substantial impairment of the function of a bodily member, organ, or mental faculty. Although the victim need not be conscious of the abuse at the time it was inflicted, serious physical abuse does not include abuse perpetrated after the death of the victim. "Depraved" means that the defendant relished the killing as evidenced by serious physical abuse of the victim. The word "especially" should be given its ordinary, everyday meaning of being highly or unusually great, distinctive, peculiar, particular, or significant. This aggravating factor is set out in Section ___ of the form. When you have unanimously agreed, have your foreperson check "Yes" or "No" on the appropriate line. If you have answered "No" with respect to both of the statutory aggravating factors, your deliberations are concluded, sign the Certification in Section ____ of the
16

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 19 of 31

form, and advise the Court that you have reached a decision. If you have answered "Yes" to either of the two alleged statutory aggravating factors, then continue your deliberations and proceed to Section II of the form.

Note: Adapted from Sand, Reiss, Loughlin & Batterman Modern Federal Jury Instructions (Criminal Set), Vol. 3 Inst. 9A-8 & Note (2003) (serious physical abuse does not include abuse perpetrated after the death of the victim); United States v. Pitera , 795 F. Supp. 546, 558 (E.D.N.Y. 1992), aff'd 986 F.2d 499 (2d Cir. 1992) (suggesting that such an instruction is inappropriate in context of identically-worded provision of ADAA);United States v. Pretlow, 779 F. Supp. 758, 773 (D.N.J. 1991) (upholding use of "serious physical abuse" in ADDA to limit "heinous, cruel or depraved" aggravator so long as the "serious physical abuse" to the victim occurred prior to death); United States v. Chanthadara, 230 F.3d 1237, 1261-61 (10th Cir. 2000) (distinguishable because defendant did not challenge instruction on serious physical abuse on a constitutional basis).

17

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 20 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Nonstatutory Aggravating Factors) A nonstatutory aggravating factor is a factor that government counsel believe tend to support a sentence of death, but is one that Congress has not specifically prescribed. The nonstatutory aggravating factor alleged by the government is: "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 other." In deciding whether future dangerousness has been proven, you must understand that if William Sablan is not sentenced to death, he will spend the rest of his life in federal prison without any possibility of release. Therefore, you must consider only the possible danger that he might present to other inmates and prison staff in the event he is sentenced to life imprisonment. In doing so, you should consider the evidence you have received regarding the resources and policies that the Bureau of Prisons has to protect prison officials and inmates from prisoners who are perceived to present such a threat. To prove something is "likely" means to prove that it is more probable than not. Thus, the government must prove beyond a reasonable doubt that it is more probable than not that William Sablan will commit more than one act of violence in prison and that the acts of violence will be criminal. "A criminal act of violence" is a physical assault on another person with intent to case death or serious bodily injury to that person. This nonstatutory aggravating factor is set out in Section ___. When you have
18

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 21 of 31

unanimously agreed, have your foreperson check "Yes" or "No" on the appropriate line. Regardless of your finding as to this nonstatutory aggravating factor, you should continue your deliberations and proceed to Section ____ of the form. It is important to note that the law only permits you to consider and discuss this one nonstatutory aggravating factor, which has been specifically charged by the government in advance. You are not free to consider any other facts in aggravation that you conceive of on your own.

Note: Adapted from Sand, Reiss, Loughlin & Batterman Modern Federal Jury Instructions (Criminal Set), Vol. 3 Inst. 9A-16; 9A-17 (2003); United States v. Sampson, 335 F. Supp.2d 166, 223-24 (D. Mass. 2004).

19

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 22 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Mitigating Factors) The law never assumes or presumes that a defendant should be sentenced to death. Accordingly, William Sablan is under no obligation to establish the existence of any mitigating factors or to disprove the existence of any aggravating factors. Of course, Mr. Sablan, like other defendants, may choose to argue specific mitigating factors. A mitigating factor is not offered to justify or excuse his conduct. Instead, a mitigating factor is a fact about William Sablan's personal traits, character, or background or the circumstances surrounding the offense, or anything else relevant that would suggest, in fairness, that life in prison without the possibility of release is a more appropriate punishment than a sentence of death. The law requires you to consider any relevant mitigating information presented by William Sablan. Unlike aggravating factors, which you must unanimously find proven beyond a reasonable doubt in order for you even to consider them in your sentencing decision, the law does not require unanimity with regard to mitigating factors. Any one juror who is persuaded of the existence of a mitigating factor must consider it in his or her sentencing decision. Additionally, William Sablan's burden to establish a mitigating factor is only by a preponderance of the evidence. This is a lesser standard of proof under the law than proof beyond a reasonable doubt. A factor is established by a preponderance of the evidence if its existence is shown to be more likely true than not true or that the factor is
20

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 23 of 31

more likely present than not present. William Sablan offers the following mitigating factors for consideration: [TO BE SUBMITTED AT A LATER TIME] In addition to the mitigating factors specifically raised, the law permits each of you to consider anything about the circumstances of the offense, or anything about William Sablan's background, record, or character, or anything else relevant that you individually believe mitigates against the imposition of the death penalty. The law does not limit your consideration of mitigating factors to those that can be articulated in advance. Thus, if there are any mitigating factors not argued by counsel for Mr. Sablan, but which any of you, on your own or with others, finds to be established by a preponderance of the evidence, you are free to consider it in your sentencing determination. In Section ___ of the Special Finding Form, you are to identify any such additional mitigating factors that one or more of you independently finds to exist by a preponderance of the evidence. After you have completed your findings regarding the existence or non-existence of mitigating factors, you should proceed to Section ___ of the form, which relates to the weighing process.

Note: Adapted from Sand, Reiss, Loughlin & Batterman Modern Federal Jury Instructions (Criminal Set), Vol. 3 Inst. 9A-18 (2003).

21

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 24 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Weighing Aggravating and Mitigating Factors) After you have determined whether the government have proven beyond a reasonable doubt any nonstatutory aggravating factors, and whether William Sablan has proven by a preponderance of the evidence the existence of any mitigating factors, you must then engage in a weighing process. This weighing process asks whether you are unanimously persuaded, beyond a reasonable doubt, that the aggravating factors sufficiently outweigh any mitigating factors or, in the absence of any mitigating factors that the aggravating factors are themselves sufficient to call for a sentence of death. In determining the appropriate sentence, all of you must independently weigh the aggravating factor or factors that you unanimously found to exist, whether statutory or nonstatutory, and each of you must weigh any mitigating factors that you individually, or with others, found to exist. Moreover, any of you may weigh a mitigating factor found by another juror, even though you did not concur in that finding. The law contemplates that different factors may be given different weights or values by different jurors. Thus, you may find that one mitigating factor outweighs all aggravating factors combined, or that the aggravating factors proven do not, standing alone, justify imposition of a sentence of death beyond a reasonable doubt. Similarly, you may instead find that a single aggravating factor sufficiently outweighs, beyond a reasonable doubt, all mitigating factors combined so as to justify a sentence of death. The law does not define what is "sufficient" to make death the appropriate penalty.
22

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 25 of 31

Here, the law relies on each of you as a representative of our community to consult your conscience and determine what is sufficient to justify William Sablan's execution. Thus, your decision as to what the appropriate sentence is will depend in part on what is sufficient for you. If you find that the government has proven that the aggravating factors slightly outweigh the mitigating factors and that is sufficient for you to find that death is the appropriate penalty, you may properly vote for death. On the other hand, even if the government has proven to you that the aggravating factors greatly outweigh the mitigating factors, you may properly decide that this is not sufficient to justify a sentence of death because, for you, even more is required for you to find that a man should die. However, you personally define sufficient, the prosecution must convince you beyond a reasonable doubt that the aggravating factor or factors sufficiently outweigh the mitigating factors to make death the appropriate penalty in this case. This is a heavy burden. More than a strong probability is required. You must be certain beyond any reasonable doubt that a death sentence should be imposed before voting for it. Death is, of course the ultimate irreversible punishment. You must not sentence William Sablan to die unless you are convinced beyond a reasonable doubt that death is the appropriate punishment. The process of weighing is by no means a mechanical process. In other words, you should not simply count the total number of aggravating and mitigating factors and reach a decision based on which number is greater; rather, you should consider the weight and value of each factor.
23

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 26 of 31

Note: Adapted from Sand, Reiss, Loughlin & Batterman Modern Federal Jury Instructions (Criminal Set), Vol. 3 Inst. 9A-19 (2003);Jury Instructions in United States v. Terry Lynn Nichols; United States v. Sampson, 335 F. Supp.2d 166, 239 n. 42 (D. Mass. (2004).

24

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 27 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Determination of Sentence) In the event that you unanimously find, beyond a reasonable doubt, that the weighing process leads you to the conclusion that a sentence of death is called for, so indicate in Section ____ of the Special Findings Form. If, on the other hand, you unanimously find that the weighing process leads you to the conclusion that a sentence of life imprisonment without possibility of release is called for, so indicate in Section _______ of the Special Findings Form. If, after making all reasonable efforts, you have not reached a unanimous agreement as to the appropriate sentence, you will not be a hung jury. And in contrast to the conventional criminal case, this case will not have to be tried again because the jury could not reach a unanimous verdict. Rather, if you are unable to reach a unanimous verdict, the law provides that this Court must sentence William Sablan to life imprisonment without possibility of release. If you are satisfied that you cannot reach a unanimous decision, so indicate in Section ____ of the Special Findings Form.

Note: Adapted from Sand, Reiss, Loughlin & Batterman Modern Federal Jury Instructions (Criminal Set), Vol. 3 Inst. 9A-19 (2003); United States v. Sampson, 335 F. Supp.2d 166, 241 n. 43 (D. Mass. (2004).

25

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 28 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Justice without Discrimination) In considering whether a sentence of death is justified, you shall not consider the race, color, religious beliefs, national origin, or sex of the defendant or of the victim on a per se basis. You are not to recommend a sentence of death for the crime no matter what the race, color, religious beliefs, national origin, or sex of the defendant or the victim may be. Section ____ of the Special Findings Form contains a Certification to this effect and it must by signed by each of you. This does not mean, however, that you may ignore the effects and experiences relating to race, color, religious beliefs, national origin, or sex that these factors have had upon William Sablan and/or Joey Estrella. In fact, the law requires you to consider all of the mitigating evidence William Sablan has presented to you, including evidence pertaining to the effects of these factors in his life.

Note: Adapted from Pattern Crim. Jury Instr. 10th Cir. § 3.08.6 (2006); United States v. Webster, 162 F.3d 308, 356 (5th Cir. 1998); See also Penry v. Lynaugh, 492 U.S.302, 328 (1989) (where instructions and "special findings" form prevented the jury from giving a reasoned moral response" to mitigating evidence, the Eighth Amendment is violated); Eddings v. Oklahoma, 455 U.S. 104, 113-14 (1982) (sentencer may not refuse to consider any relevant mitigating evidence offered by the defendant as a basis for a sentence less than death); Lockett v. Ohio, 438 U.S. 586, 604 (1978) (emphasis in original) (sentencer may "not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less that death").

26

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 29 of 31

WILLIAM SABLAN'S INSTRUCTION NO. (Concluding Instruction) You have now been instructed on the law applicable to your consideration of the appropriate sentence and the process by which you should determine the facts and weigh the evidence. The importance of your deliberations should be obvious. The Court reminds you that you can return a decision sentencing William Sablan to death only if all 12 of you are unanimously persuaded, beyond a reasonable doubt, that a death sentence is in fact appropriate. When you are in the jury room, please discuss all aspects of the sentencing issues among yourselves with candor and frankness, but also with a due regard and respect for the opinions of one another. Each of you must decide this question for yourself and not merely go along with the conclusion of your fellow jurors. In the course of your deliberations, none of you should surrender your conscientious beliefs of what is the truth, of what is the weight and effect of the evidence, and what should be the outcome as determined by your individual conscience and evaluation of the case. Remember that the parties and the Court are relying upon you to give full, considered, and mature consideration to this sentencing. By doing so, you carry out to the fullest your oaths as jurors: that you will well and truly try the issues of this case and render a just result. If it becomes necessary during your deliberations to communicate with the Court for any reason, You may send a note, signed by your foreperson or by one or more
27

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 30 of 31

members of the jury, through the bailiff. Do not attempt to communicate with the Court by any means other than a signed writing, and the Court will not communicate with any of you on any subject touching on your sentencing decision other than in writing or orally here is open court. When you have reached a decision, send out a note signed by your foreperson that you have reached a decision. Do not indicate what the decision is in the note. You are not to reveal to any person or to the Court how the jury stands, numerically or otherwise, until you have reached a verdict. Nothing that the Court has said in these instructions and nothing said or done during the trial and sentencing hearing has been said or done to suggest to you what the outcome should be. The sentencing decision is exclusively yours.

Note: Adapted from Sand, Reiss, Loughlin & Batterman Modern Federal Jury Instructions (Criminal Set), Vol. 3 Inst. 9A-19 (2003).

28

Case 1:00-cr-00531-WYD

Document 2067

Filed 12/18/2006

Page 31 of 31

CERTIFICATE OF SERVICE I hereby certify that on December 18, 2006 I electronically filed the foregoing William Sablan's Proposed Jury Instructions For the Penalty Phase with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected] [email protected] [email protected] [email protected] By: /s/Susan L. Foreman

29