Free Proposed Jury Instructions - District Court of Colorado - Colorado

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Case No. 00-cr-00531-WYD UNITED STATES OF AMERICA, Plaintiff, v. RUDY CABRERA SABLAN, Defendant.

GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTIONS _____________________________________________________________________ The United States of America, by Troy A. Eid, United States Attorney for the District of Colorado, through Brenda Taylor and Philip A. Brimmer, Assistant United States Attorneys, respectfully submits its stipulated proposed jury instructions for the penalty phase. The United States reserves the right to submit additional proposed jury instructions to address issues that arise during the course of the penalty phase.

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 17 th 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 17 th 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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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 1 Now that you have heard all of the evidence that is to be received in this sentencing hearing, or penalty phase, and before hearing the arguments of counsel, it is the duty of the Court to give you the final instructions to guide you in your decision. Each of you will have a copy of these instructions for your reference during your deliberations. All of the instructions of law given to you by the Court ­ those given to you at the beginning of the penalty phase, those given to you during this phase of the trial, and these final instructions ­ must guide and govern your deliberations. 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. Counsel may properly refer to some of the applicable rules of law in their closing arguments. If, however, any difference appears to you between the law as stated by counsel and that as stated by the Court in these instructions, you, of course, are to be governed by the instructions given to you by the Court. Regardless of any opinion you may have as to what the law is or ought to be, it would be a violation of your sworn duty to base any part of your decision upon any other view or opinion of the law than that given in my instructions. The process by which you 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, I will give you a Special Findings Form. In light of

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the complexity and importance of your task, it is essential that you consider and follow the instructions and Special Findings Form together as you conduct your deliberations.

W illiam Sablan Trial, Penalty Phase Instruction No. 1

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 2 The evidence in this phase of the trial consists of sworn testimony of the witnesses (regardless of who may have called them), all exhibits received in evidence (regardless of who may have produced them), stipulations that counsel agreed to (although you are not required to accept the stipulation as evidence and regard that fact as proven, because you are the sole judges of the facts), and facts that I have judicially noticed. Nothing else is evidence. Counsel's statements and arguments are not evidence. Their questions and objections are not evidence. My legal rulings are not evidence. And my comments and questions are not evidence. Any proposed testimony or proposed exhibit to which I sustained an objection and any testimony or exhibits I have ordered stricken must be disregarded entirely. You must completely disregard such proposed, but rejected, evidence. Do not speculate about what a witness might have said or what an exhibit might have shown. These things are not evidence, and you are bound by your oath not to let them influence your decision in any way. Anything you may have seen or heard outside the courtroom is not evidence in this case and must be disregarded entirely. You are to base your verdict only on the evidence received in the case. There are two types of evidence which are generally presented during a trial: direct evidence and circumstantial evidence. Direct evidence is the testimony of a person who asserts or claims to have actual knowledge of a fact, such as an ear- or eyewitness. Circumstantial evidence is proof of a chain of acts and circumstances indicating the existence of a fact.

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The law makes no distinction between the weight or value to be given to either direct or circumstantial evidence. You should weigh all of the evidence in the case. While you must consider only the evidence in this case, you are permitted to draw reasonable inferences from the testimony and exhibits, inferences you feel are justified in light of common experience. An inference is a conclusion that reason and common sense may lead you to draw from facts which have been proved. By permitting such reasonable inferences, you may make deductions and reach conclusions that reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in this case.

W illiam Sablan Trial, Penalty Phase Instruction No. 3

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 3 You are the judges of the credibility or "believability" of each witness and the weight to be given to the witness's testimony. You may decide to believe all of a witness's testimony, only a portion of it, or none of it. In making your assessment you should carefully scrutinize all of the testimony given by the witness, the circumstances under which each witness has testified, and every matter in evidence which tends to show whether a witness, in your opinion, is worthy of belief. Consider each witness's intelligence, motive to falsify, state of mind, and appearance and manner while on the witness stand. Consider the witness's ability to observe the matters as to which he or she has testified and consider whether he or she impresses you as having an accurate memory or recollection of these matters. Consider also any relation a witness may bear to either side of the case, the manner in which each witness might be affected by your verdict, and the extent to which, if at all, each witness is either supported by or contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness or between the testimony of different witnesses may or may not cause you to disbelieve or discredit such testimony. Two or more persons witnessing an incident or a transaction may simply see or hear it differently. Innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, however, always consider whether it pertains to a matter of importance or an insignificant detail and consider whether the discrepancy results from innocent error or from intentional falsehood.

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After making your own judgment or assessment concerning the believability of a witness, you can then attach such importance or weight to that testimony, if any, that you feel it deserves. 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. As stated before, you, the jury, are the sole judges of the facts in this case.

W illiam Sablan Trial, Penalty Phase Instruction No. 4

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 4 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 and sentencing findings are organized into two broad categories, each with its own focus. First, you must determine whether Rudy Sablan is eligible for a sentence of death under the Federal Death Penalty Act. Unless and until you find that he is eligible for a death sentence, it is improper for you to even consider whether such a sentence is justified. Second, even if you find Mr. Sablan is eligible for a death sentence, you must select which sentence is most appropriate ­ a sentence of death or a sentence of life imprisonment without possibility of release. Eligibility for a death sentence: To find Mr. Sablan eligible for a death sentence, you must be convinced that the government has proven each of the following beyond a reasonable doubt: First: Rudy Sablan was at least eighteen years old when the capital offense was committed; Second: Rudy Sablan acted with a level of intent sufficient to allow consideration of the death penalty; and Third: The existence of at least one statutory aggravating factor. If you find that any one or more of these three eligibility conditions has not been proven by the government beyond a reasonable doubt, Rudy Sablan is not eligible for a

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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 focuses on all relevant aggravating and mitigating factors. Aggravating and mitigating factors will be explained in greater detail in a later instruction, but generally aggravating factors tend to support or justify a sentence of death. On the other hand, mitigating factors tend to suggest that a sentence of death is not justified, and that a sentence of life imprisonment without possibility of release is more appropriate. The selection stage is broken down into two steps. In the first step, you must determine what, if any, aggravating and mitigating factors exist. The government has the burden of proving to each and all of you beyond a reasonable doubt that an aggravating factor exists. Mr. Sablan has the burden of proving mitigating factors, but only by a preponderance of the evidence. Furthermore, unlike aggravating factors, any one of you may find that a mitigating factor exists; unanimity is not required. These two burdens of proof will be discussed in more detail in a later instruction. The second step involves a weighing process. Each of you individually must engage in a weighing or balancing process, in which you will weigh the aggravating factor or factors that all 12 jurors have unanimously and beyond a reasonable doubt found to exist against any mitigating factor or factors that you individually or with other jurors have found by a preponderance of the evidence.

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After weighing the aggravating and any mitigating factor(s), the jury must unanimously decide whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death. If you do not find any mitigating factors, you still must decide whether the aggravating factors are sufficient to justify imposition of a death sentence. If you determine as a result of this weighing process that the factors do not justify a death sentence, such a sentence may not be imposed, and your deliberations are over. If you determine that the factors do justify a death sentence, that death sentence must be imposed. But as I will instruct you, weighing aggravating and mitigating factors is not a mechanical process, and the judgment involved is exclusively yours. Each of you is called upon to make an individualized judgment as to which sentence is appropriate. Individual jurors consider such factors qualitatively, assessing the weight and value of each factor. 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.

W illiam Sablan Trial, Penalty Phase Instruction No. 5

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 5 A reasonable doubt means a doubt based on reason and common sense after careful and impartial consideration of all evidence in the case. A reasonable doubt is the kind of doubt that, after consideration of all the evidence, or the lack of evidence, would cause reasonable people to hesitate to act upon it when conducting the more serious and important affairs in their own lives. 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". As explained earlier, the government has the burden of proving beyond a reasonable doubt that Rudy Sablan is eligible for a death sentence. The government also has the burden of proving beyond a reasonable doubt the aggravating factors that it has alleged. As to the matters that the government must prove beyond a reasonable doubt, Rudy Sablan is not required to produce any evidence. Further, he is not required to assert or establish any mitigating factors, nor is he required to prove to you that a sentence of life imprisonment without possibility of release is the appropriate sentence. If, however, Mr. Sablan asserts mitigating factors, he has the burden of proving them by a preponderance of the evidence. To prove something by a preponderance of the evidence is a lesser standard of proof than proof beyond a reasonable doubt. A mitigating factor is established by a preponderance of the evidence if it is existence is shown to be more likely true than not true. W illiam Sablan Trial, Penalty Phase Instruction No. 6

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 6 As part of the eligibility stage of your deliberations, you must unanimously find beyond a reasonable doubt that the government has proven that Rudy Sablan was at least 18 years old when the capital offense was committed. If you do so find, answer "yes" on the appropriate part of the Special Findings Form and continue your deliberations. If you do not so find, answer "no" on the Form, sign the section of the Form indicating a verdict of life imprisonment and certify your decision as described in Section IV, which will conclude your deliberations.

W illiam Sablan Trial, Penalty Phase Instruction No. 7

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 7 As part of the eligibility phase of your deliberations, you must unanimously find beyond a reasonable doubt that the government has proven that, in committing the offense charged in the indictment, Rudy Sablan: 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 direct 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. Your findings must be based on Rudy 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. I instruct you that your findings of one of these alternatives is not an aggravating factor and may not be weighed by you during the selection stage of your deliberations. The alternative mental states are set out in the Special Findings Form, and you must consider and resolve them separately. For each one, you must consider whether

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you unanimously agree that the government has proved it beyond a reasonable doubt, and indicate your answer on the Form, and then continue with the next until you have finished. If you answered "yes" to one or more of these alternatives, continue your deliberations. If you answered "no" to all four alternatives, sign the section of the Special Findings Form indicating a verdict of life imprisonment and certify your decision as described in Section IV, which will conclude your deliberations.

W illiam Sablan Trial, Penalty Phase Instruction No. 8

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 8 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 or circumstances that tend to support imposition of a sentence of death. The government is required to specify the aggravating factors upon which it relies, and your deliberations are limited to its choice. Even if you believe that the evidence reveals other aggravating factors, you must not consider them. Mitigating factors are considerations or circumstances that suggest that the sentence should be life imprisonment without the possibility of release. Mitigating factors need not justify or excuse Mr. Sablan'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 must also evaluate and weigh such factors and, ultimately, make an individualized judgment about the appropriate sentence of Rudy Sablan. W illiam Sablan Trial, Penalty Phase Instruction No. 9

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 9 Before you may proceed to the selection stage, you must unanimously find beyond a reasonable doubt that the government has proven the following statutory aggravating factors prescribed by Congress and alleged by the government in this case: The defendant committed the offense charged in the indictment in an especially heinous or depraved manner in that it involved serious physical abuse to the victim. There are specific factual circumstances that the government must establish by proof beyond a reasonable doubt for this statutory aggravating factor, which will be explained in later instructions. The statutory aggravating factor is set out in the Special Findings Form. You must decide whether you unanimously agree that it has been proven beyond a reasonable doubt and indicate your answer on the Form. If you have answered "yes" to the statutory aggravating factor, continue your deliberations. If you have answered "no", sign the section of the Special Findings Form indicating a verdict of life imprisonment and certify your decision as described in Section IV, which will conclude your deliberations.

W illiam Sablan Trial, Penalty Phase Instruction No. 10, modified to omit inapplicable aggravator.

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 10 The statutory aggravating factor alleged by the government is that Rudy Sablan committed the offense charged in the indictment in an especially heinous or depraved manner in that it involved serious physical abuse to the victim. Any finding regarding this aggravating factor must be based on Rudy Sablan's personal actions and intent. Principles of aiding and abetting, as defined in the liability phase, are not applicable to this decision. Sentencing in capital cases must be an individualized consideration of the acts and intent of the particular defendant being sentenced. "Especially" should be given its ordinary, everyday meaning of being highly or unusually great, distinctive, peculiar, particular, or significant. "Heinous" means extremely wicked or shockingly evil, where the killing was accompanied by such additional acts of serious physical abuse as set apart from other killings. "Depraved" means that the defendant relished the killing or showed indifference to the suffering of the victim as evidenced by serious physical abuse. "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, 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 regardless of whether the victim was conscious of the abuse at the time it was inflicted, and may be inflicted either before or after death. Rudy Sablan must, however, have specifically intended the abuse, apart from the killing.

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Pertinent factors which you may consider in deciding whether a killing is especially heinous or depraved include: infliction of gratuitous violence upon the victim, above and beyond that necessary to commit the killing; needless mutilation of the victim's body; and helplessness of the victim.

W illiam Sablan Trial, Penalty Phase Instruction No. 12 (first paragraph modified to add last two sentences regarding aiding and abetting).

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 11 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: Future Dangerousness of the Defendant. Future dangerousness, as alleged by the government, means the likelihood that Rudy Sablan will continue to commit acts of violence in the future which would be a continuing and serious threat to the lives and safety of others. In deciding whether future dangerousness has been proven, you must understand that if Rudy 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. 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 in the future Rudy Sablan will intentionally commit criminal acts of violence against the other persons in prison. The non-statutory aggravating factor is set out in the Special Findings Form and, just as with the statutory aggravating 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. W illiam Sablan Trial, Penalty Phase Instruction No. 13

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 12 The law never assumes or presumes that a defendant should be sentenced to death. Accordingly, Rudy Sablan is under no obligation to establish the existence of any mitigating factors or to disprove the existence of any aggravating factors. Rudy Sablan has presented evidence in support of specific mitigating factors and the law requires you to consider that evidence. Rudy Sablan offers the following mitigating factors for consideration in this case: [Add mitigating factors] Rudy Sablan 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. Moreover, any juror may consider a mitigating factor found by another juror, even if he or she did not concur in that finding. 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 understood to include other relevant

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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.

W illiam Sablan Trial, Penalty Phase Instruction No. 14

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 13 After completing your findings regarding aggravating and mitigating factors, each juror must engage in a weighing process to determine whether a sentence of death is justified. In this process, each of you must consider only those aggravating factors, statutory and non-statutory, that the jury unanimously found to exist. Each of you must also consider any mitigating factors that you individually found to exist, and each of you may consider any mitigating factors found by any of the other jurors. Because the findings of mitigating factors as individual to each juror, the weighing that each of you must engage in is necessarily an individual process. 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.

W illiam Sablan Trial, Penalty Phase Instruction No. 15

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 14 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 following this instruction. The certification is set out in section IV of the Special Findings Form. You are, however, permitted to consider as mitigating evidence Rudy Sablan's experiences resulting from his national origin or religious beliefs, and the effect those experiences have had on his life.

W illiam Sablan Trial, Penalty Phase Instruction No. 17, modified to delete last paragraph reading: "You are, however, permitted to consider as mitigating evidence William Sablan's experiences resulting from his national origin or religious beliefs, and the effect those experiences have had on his life."

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GOVERNMENT'S STIPULATED PENALTY PHASE INSTRUCTION NO. 15 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. I remind you that you may return a verdict sentencing Rudy Sablan to death only if all 12 of you are unanimously persuaded, beyond a reasonable doubt, that a sentence of death is justified in this case. 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. You have the right at this stage of the proceedings to select a new foreperson if you so choose. 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 members of the jury, through the Court Security Officer. Do not attempt to

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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 in open court. When you have reached a decision, give a note signed by your foreperson to the Court Security Officer indicating 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.

W illiam Sablan Trial, Penalty Phase Instruction No. 18 (modified to add paragraph about right to select a new foreperson).