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 DISPUTED PENALTY PHASE INSTRUCTIONS AND SPECIAL VERDICT FORM _____________________________________________________________________ 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 disputed 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 DISPUTED PRELIMINARY PENALTY PHASE INSTRUCTION Members of the jury: You have unanimously found the defendant, Rudy Sablan, guilty of firstdegree murder as charged in the indictment. This offense is punishable by death or by imprisonment for life without the possibility of release. The choice between these two 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. As to the second alternative, a sentence of life imprisonment without possibility of release, you must understand that in the federal system, unlike many state systems, parole does not exist. Therefore, a federal sentence of life imprisonment automatically precludes the possibility of release at any time. To assist you in making your decision, we are commencing a sentencing hearing, or as it is often called, the penalty phase of this trial. The penalty phase is much like a second trial, although now the ultimate issue for your consideration is punishment. The parties will be calling witnesses and presenting exhibits having to do with the circumstances of the murder of Joey Jesus Estrella and the personal traits, character, or background of Rudy Sablan. The government will present evidence about aggravating circumstances or factors which it believes tend to support a sentence of death. Then Mr. Sablan may, but need not, present evidence about mitigating circumstances or factors that tend to support a

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sentence of life imprisonment without possibility of release. Even though you have found Rudy Sablan guilty of an offense carrying a possible death sentence, the law requires that you consider this evidence and approach this sentencing hearing with an open mind, able to give meaningful consideration to either possible sentence. The law provides you with guidance in making a decision, but your decision on this question of life or death is a uniquely individual judgment which the law, in the final analysis, leaves up to each of you. However, in order to impose a sentence of death, all 12 of you must agree that death is the appropriate sentence. The Court will instruct you in more detail at the close of this sentencing hearing regarding questions you must answer based on all of the evidence you will have before you. For now, however, the Court will give you a brief overview as to how your deliberations will proceed. Initially, you will be called upon to decide whether Rudy Sablan is eligible for a death sentence under the Federal Death Penalty Act. Eligibility under that statute depends upon whether an exemption applies, whether Mr. Sablan acted with a reckless intention to cause death, and whether at least one statutory aggravating factor applies. If you find that Mr. Sablan is eligible, you will then 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

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factor exists. Mr. Sablan has the burden of proving mitigating factors, but only by a preponderance of the evidence; that is, that the factor is more likely true than not. Furthermore, any one of you may find that a mitigating factor exists. Unanimity is not required. After you have determined the existence of aggravating and mitigating circumstances, each of you individually must then engage in a weighing or balancing process to decide whether the aggravating factors sufficiently outweigh the mitigating factors to justify a sentence of death. This is not a mechanical process. You cannot simply count the number of aggravating factors and mitigating factors and decide which number is greater. Rather, each of you should consider the factors qualitatively, assessing the weight and value of each factor and render a unique, individualized judgment as to which sentence is appropriate. The outcome of this process is never foreordained and you are never required by the law to impose a sentence of death.

Preliminary instruction in W illiam Sablan trial, modified to delete second paragraph reading: "If you cannot unanimously agree on the appropriate punishment, I will sentence the defendant to life imprisonment without possibility of release." Jones v. United States, 527 U.S. 373, 382-83 (1999).

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GOVERNMENT'S DISPUTED PENALTY PHASE INSTRUCTION NO. 1 You have unanimously found Rudy Sablan guilty of first degree murder as charged in the indictment. The statute defining this offense, 18 U.S.C. § 1111, provides that the punishment may be either a sentence of death or a sentence of life imprisonment without possibility of release. As I instructed you before, the federal system, like many state systems, has no parole. Therefore, a federal sentence of life imprisonment automatically precludes the possibility of release at any time. The choice between these alternatives is left exclusively to you. Your unanimous decision will be binding on the Court, and I will sentence Rudy Sablan according to your decision.

William Sablan Trial, Penalty Phase Instruction No. 2, modified to delete last sentence reading: "If you cannot unanimously agree on the appropriate sentence, the law requires that I sentence Mr. Sablan to life imprisonment without possibility of release." See Jones v. United States, 527 U.S. 373, 382-383 (1999) ("We similarly decline to exercise our supervisory powers to require that an instruction on the consequences of deadlock be given in every capital case. In drafting the Act, Congress chose not to require such an instruction. Cf. § 3593 (f)") (parenthetical omitted). See also Scott v. Mitchell, 209 F.3d 854, 877 (6th Cir. 2000) ("The Supreme Court has chastised such instructions as encouraging deadlock and undermining the strong governmental interest in unanimous verdicts") (citing Jones).

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GOVERNMENT'S DISPUTED PENALTY PHASE INSTRUCTION NO. 2 After each juror has performed his or her individual weighing process, the jury as a whole is to vote to reach a verdict. 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 unanimously decide whether the aggravating factors are sufficient to justify imposition of a death sentence. The Special Findings Form includes two verdict forms, one for a unanimous verdict for a sentence of death, the other for a unanimous verdict for a sentence of life imprisonment without possibility of release. Complete the form that reflects your vote. If you do not unanimously find that the aggravating factor(s) sufficiently outweigh the mitigating factor(s) to justify a sentence of death - or in the absence of any mitigating factor, that the aggravating factor(s), considered alone, justify a sentence of death - answer "no" on the Special Findings Form, sign the section of the Form indicating a verdict of life imprisonment and certify your decision as described ins section IV, 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 the section

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of the Form indicating a verdict of death, and certify your decision as described in section IV of the Form.

W illiam Sablan Trial, Penalty Phase Instruction No. 16 (modified to delete last paragraph reading: "If after reasonable efforts, you are unable to unanimously agree on a sentence, you are to indicate that on the appropriate page of the Form and the Court will sentence Rudy Sablan to life imprisonment without possibility of release. Before you reach any conclusion based upon a lack of unanimity, you should continue your discussions until you are fully satisfied that no further discussion will lead to a unanimous decision."). Jones v. United States, 527 U.S. 373, 382-83 (1999).

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IN THE 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 DISPUTED PROPOSED 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 Rudy Sablan was at least 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, certify your decision as described in section IV, and notify the Court that you have reached a decision.

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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 Rudy Sablan acted with the specified intent: 1. The defendant intentionally killed the victim; YES _______ NO _______ 2. The defendant intentionally inflicted serious bodily injury that resulted in the victim's death; YES _______ NO _______ 3. The defendant intentionally participated in an act, contemplating that a person's life would be taken or intending that lethal force would be used in connection with a person, other than one of the participants in the offense, and the victim died as a result of the act; YES _______ NO _______ 4. The defendant intentionally and specifically engaged in an act of violence, knowing that the act created a grave risk of death to a person, other than one of the participants in the offense, such that participation in the act

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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, certify your decision as described in section IV, and notify the Court that you have reached a decision. C. Statutory Aggravating Factors

The government has alleged that the following statutory aggravating 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: Rudy Sablan 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 this statutory aggravating factor, you have found the defendant eligible for a death sentence and you should proceed to the next section (II) of this Form to select a sentence of death or a sentence of life imprisonment without possibility of release. If you answered "no" to this factor, 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, certify your decision as -3-

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described in section IV, and notify the Court that you have reached a decision. II. Findings Regarding Selection of the Sentence A. Non-Statutory Aggravating Factor

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: Rudy Sablan 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 finding on the non-statutory factor, you must proceed to the next section (II­B) of this Form. B. Mitigating Factors

Rudy Sablan has alleged that the following mitigating factors are present in this case. For each of these factors, indicate in the space provided the number of juror(s) who have found the existence of that factor by a preponderance of the evidence. [Add mitigating factors] 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. -4-

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Did one or more jurors find that other relevant mitigating evidence was provided? YES _____ NO If you answered "yes," list the additional mitigation information you found to be present and the number of jurors who so find in the space provided below. ________________________________________________________________ ________________________________________________________________ When you have completed your findings regarding mitigation, proceed to the next section (II-C) of this Form, where you will weigh the aggravating factor(s) with the mitigating factor(s), if any, that you have found to be present in this case. C. Weighing Process

The question you must answer at this stage of your deliberations is whether the proven aggravating factor(s) sufficiently outweigh the proven mitigating factor(s) and information to justify a sentence of death or, if you have not found any mitigation present, whether the aggravating factor(s) considered alone justify a death sentence. If you unanimously find that the weight of the aggravating 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 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,

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certify your decision as described in section IV, and notify the Court that you have reached a decision. YES _______ NO _______ III. Imposition of Sentence Fill in the appropriate verdict form and then proceed to section IV, and certify your decision as described in section IV, which concludes your deliberations.

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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 Rudy Sablan shall be sentenced to death. 1. ____________________________ 2. ____________________________ 3. _____________________________ 4. _____________________________ 5. _____________________________ 6. _____________________________ 7. _____________________________ 8. ____________________________ 9. _ ____________________________ 10. _____________________________ 11. ____________________________ 12. _____________________________ Foreperson Dated this ______day of ___________, 2008.

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VERDICT­LIFE IMPRISONMENT Based upon our consideration of the evidence and in accordance with the Court's instructions, we find that Rudy Sablan shall be sentenced to life imprisonment without possibility of release. 1. ________________________ 2. ________________________ 3. ________________________ 4. ________________________ 5. ________________________ 6. ________________________ 7. ________________________ 8. ________________________ 9. ________________________ 10. _______________________ 11. _______________________ 12. _______________________ Foreperson Dated this day of , 2008.

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IV. Certification By signing below, each juror certifies that per se consideration of the race, color, religious beliefs, national origin, or gender of the defendant or the victim was not involved in reaching his or her individual decision, and that the individual juror would have made the same decision regarding the appropriate sentence for the offense in question regardless of the race, color, religious beliefs, national origin, or gender of the defendant or the victim. 1. _______________________ 2. _______________________ 3. _______________________ 4. _______________________ 5. ______________________ 6. ______________________ 7. ______________________ 8. ______________________ 9. ______________________ 10. _____________________ 11. _____________________ 12. Foreperson Dated this day of , 2008.

William Sablan Special Finding Form (modified to delete inapplicable statutory aggravating factor; language on p. 11 saying "If you are unable, after reasonable efforts, to unanimously agree upon a sentence, sign the form on page 15 indicating this."; and the form to indicate the jury is unable to reach a unanimous verdict). -9-