Free Proposed Jury Instructions - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Action No. 1:00-cr-000531-WYD-01 UNITED STATES OF AMERICA, Plaintiff, v. 1. WILLIAM CONCEPCION SABLAN, Defendant. ________________________________________________________________________ GOVERNMENT'S REVISED PROPOSED JURY INSTRUCTIONS FOR THE PENALTY PHASE ________________________________________________________________________ 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 revised proposed jury instructions for the penalty phase. There is no agreement between the parties on these instructions. The United States reserves the right to submit additional proposed jury instructions to address issues that arise during the course of the penalty phase.

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Respectfully submitted, TROY A. EID United States Attorney 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 REVISED INSTRUCTION NO. 1 (Sentencing Choices and Responsibility) You have unanimously found William 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, unlike 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 theses alternatives is left exclusively to you. Your unanimous decision will be binding on the Court, and I will sentence William Sablan according to your decision.

Note: Modification of Defendant's Proposed Instruction. Last sentence of defendant's instruction concerning deadlock removed. See Jones v. United States, 527 U.S. 373, 382-383 (1999) (parenthetical omitted): 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). See also Scott v. Mitchell, 209 F.3d 854, 877 (6 th 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 REVISED INSTRUCTION NO. 2 (Summary of Deliberative Process) Let me summarize the deliberative process you must follow in considering the sentencing decision before you. After this broad summary, I will discuss specific matters in more detail. Your deliberations and sentencing findings are organized into two broad categories, each with its own focus. First, you must determine whether William Sablan is eligible for a sentence of death under the Federal Death Penalty Act. Unless and until you find that the defendant is eligible for a death sentence, it is improper for you even to consider whether such a sentence 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: William Sablan was at least eighteen years old when he murdered Joey Estrella;

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Second: William Sablan acted with a level of intent in murdering Mr. Estrella 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, William Sablan is not eligible for a sentence of death, and your deliberations are over. If you find that the government has proved beyond a reasonable doubt that all of these conditions are satisfied, the defendant is eligible for a death sentence and you must proceed to the next stage of deliberations, to decide whether such a sentence is justified. Selection of sentence: The selection stage 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 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

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

Note: Adapted from Defendant's Proposed Instruction and 3.02 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005).

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GOVERNMENT'S REVISED INSTRUCTION NO. 3 (Burden of Proof) 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 William 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, William 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 -7-

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factor is established by a preponderance of the evidence if its existence is shown to be more likely true than not true.

Note: Modification of Defendant's Proposed Instruction and Court's Liability Phase Instruction No. 3.

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GOVERNMENT'S REVISED INSTRUCTION NO. 4 (Threshold Findings of Intent) As part of the eligibility stage 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, William Sablan: 1. intentionally killed Mr. Estrella; or 2. intentionally inflicted serious bodily injury that resulted in the death of Mr. Estrella; 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 Mr. Estrella 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 Mr. Estrella died as a direct result of the act. I instruct you that your finding 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 decide whether you unanimously agree that the government has proved it beyond a reasonable doubt, and -9-

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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 have answered "no" to all four alternatives, proceed immediately to section IV of the Form, and certify your decision as described in section IV, which will conclude your deliberations.

Note: Modification of Defendant's Proposed Instruction.

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GOVERNMENT'S REVISED INSTRUCTION NO. 5 (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 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 also must evaluate and

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weigh such factors and, ultimately, make an individualized judgment about the appropriate sentence for William Sablan.

Note: Modification of Defendant's Proposed Instruction.

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GOVERNMENT'S REVISED INSTRUCTION NO. 6 (Statutory Aggravating Factors) Before you may proceed to the selection stage, you must unanimously find beyond a reasonable doubt that the government has proven at least one of the following statutory aggravating factors prescribed by Congress and alleged by the government in this case: 1. The defendant was previously convicted of a federal or state offense punishable by a term of imprisonment of more than one year, involving the use or attempted or threatened use of a firearm against another person. 2. The defendant committed the offense charged in the indictment in an especially heinous or depraved manner in that it involved serious physical abuse to Joey Jesus Estrella. There are specific factual circumstances that the government must establish by proof beyond a reasonable doubt for each of these statutory aggravating factors, which will be explained in later instructions. The statutory aggravating factors are set out in the Special Findings Form and you must consider and resolve them separately. You must decide for each one whether you unanimously agree that it has been proven beyond a reasonable doubt and indicate your answers on the Form. If you have answered "yes" to one or both of the statutory aggravating factors, continue your deliberations. If you have answered "no" to both,

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proceed immediately to section IV of the Form, and certify your decision as described in section IV, which will conclude your deliberations.

Note: Modification of Defendant's Proposed Instruction and 3.08 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005).

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GOVERNMENT'S REVISED INSTRUCTION NO. 7 (Previous Conviction of Violent Crime Involving a Firearm) The first statutory aggravating factor alleged by the government is that William Sablan was previously convicted of a federal or state offense punishable by a term of imprisonment of more than one year, involving the use or attempted or threatened use of a firearm against another person. In alleging this aggravating factor, the government has relied upon Criminal Case No. CR99-00018 of the United States District Court for the Northern Mariana Islands which involved charges of hostage taking in violation of 18 U.S.C. § 1203; felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); and transfer of a firearm knowing it will be used to commit a crime of violence in violation of 18 U.S.C. § 924(h). You are instructed that the offenses charged in Criminal Case No. CR99-00018 of the United States District Court for the Northern Mariana Islands are all punishable by more than one year imprisonment. A "firearm" is (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; or (B) the frame or receiver of any such weapon; or (C) any firearm muffler or firearm silencer; or (D) any destructive device. A firearm, however, does not include an antique firearm. "Crime of Violence" means an offense that is a felony and (A) has as an element the use, attempted use, or threatened use of physical force against the person or property

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of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Note: Modification of Defendant's Proposed Instruction.

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GOVERNMENT'S REVISED INSTRUCTION NO. 8 (Especially Heinous or Depraved) The second statutory aggravating factor alleged by the government is that William Sablan committed the offense charged in the indictment in an especially heinous or depraved manner in that it involved serious physical abuse to Joey Jesus Estrella. Serious physical abuse may be inflicted regardless of whether the victim is conscious of the abuse at the time it was inflicted. The defendant, however, must have specifically intended the abuse, apart from the killing. Serious physical abuse means a significant or considerable amount of injury or damage to the victim's body which involves a substantial risk of death, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. Serious physical abuse may be inflicted either before or after death. Pertinent factors which you may consider in determining whether a killing was especially heinous or depraved include: 1. Whether the defendant demonstrated enjoyment of the killing. 2. Whether the conduct constituted intentional infliction of senseless and gratuitous violence.

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

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

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GOVERNMENT'S REVISED INSTRUCTION NO. 9 (Nonstatutory Aggravating Factor) 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. This involves the likelihood that the defendant will continue to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others. This non-statutory aggravating factor is set out in the Special Findings Form and, just as with the statutory factors, you must consider it separately. You must decide whether you unanimously agree that it has been proved by the government beyond a reasonable doubt, and indicate your answer on the Form. Regardless of your findings on this non-statutory factor, you must proceed to the next step in your deliberations, which involves consideration of mitigating factors.

3.09 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) -19-

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GOVERNMENT'S INSTRUCTION NO. 10 (Mitigating Factors) The law never assumes or presumes that a defendant should be sentenced to death. Accordingly, the defense is under no obligation to establish the existence of any mitigating factors (or to disprove the existence of any aggravating factors). A defendant may, of course, choose to argue specific mitigating factors, and the defendant has offered evidence on the following factors in this case: [Insert mitigating factors.] The defendant need only prove these mitigating factors by a preponderance of the evidence; that is, by evidence sufficient to persuade you that the factor is more likely present than not present. And the law does not require unanimous agreement with regard to mitigating factors. Any juror may find the existence of a mitigating factor and must then consider that factor in weighing the aggravating and mitigating factors even though other jurors may not agree that the particular mitigating factor has been established. Your discretion in considering mitigating factors is much broader than your discretion in considering aggravating factors. The law permits you to consider any other relevant mitigating information presented in this proceeding, in addition to the specific factors recited above, so long as its existence was proved by a preponderance of the evidence. "Relevant mitigating information" includes anything in the defendant's background, record, character, or any circumstances of the offense, which suggests to you that a sentence of death should not be imposed. Throughout these instructions, references -20-

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

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

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GOVERNMENT'S REVISED INSTRUCTION NO. 11 (Weighing Aggravating and Mitigating Factors) After completing your findings regarding aggravating and mitigating factors, you must engage in a weighing process to determine whether a sentence of death is justified. In this process, you must consider only those aggravating factors, statutory and non-statutory, that you unanimously found to exist. Each of you must also consider any mitigating factors that you individually found to exist, and you each may consider any mitigating factors found by any of the other jurors. You must determine whether the proven aggravating factors sufficiently outweigh any proven mitigating factors to justify a sentence of death. The task of weighing aggravating and mitigating factors against each other, or weighing aggravating factors alone if there are no mitigating factors, is not a mechanical process. You should not simply count the number of factors, but consider the particular character of each, which may be given different weight 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. -22-

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

3.11 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) (modified to delete "or value" in second paragraph).

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GOVERNMENT'S INSTRUCTION NO. 12 (Justice without Discrimination) In considering whether a sentence of death is justified, you shall not consider the race, color, religious beliefs, national origin, or gender of the defendant or of any victim. You are not to impose a death sentence unless you conclude that you would do so no matter what the race, color, religious beliefs, national origin, or gender of the defendant or the victim may be. Whatever sentencing decision you reach, each of you is required by law to sign a certification attesting to the fact that you have followed this instruction. The certification is set out in section IV of the Special Findings Form.

3.08.6 Pattern Jury Instructions, Criminal Cases, Tenth Circuit (2005) -24-

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GOVERNMENT'S REVISED INSTRUCTION NO. 13 (Concluding Instruction) After closing arguments, the Court Security Officer will escort you to the jury room and provide each of you with a copy of the instructions that I have just read. Any exhibits admitted into evidence will also be placed in the jury room for your review. When you go to the jury room, you should review the instructions. Not only will your deliberations be more productive if you understand the legal principles upon which your sentence must be based, but, for your sentence to be valid, you must follow the instructions throughout your deliberations. Remember, you are the judges of the facts, but you are bound by your oath to follow the law stated in the instructions. You must consult with one another and deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs solely because of the opinion of your fellow jurors, or for the mere purpose of returning a sentence.

Note: Modification of Court's Liability Phase Instruction No. 24. -25-

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GOVERNMENT'S REVISED INSTRUCTION NO. 14 SPECIAL FINDINGS FORM I. Findings Regarding Defendant's Eligibility for a Death Sentence A. Defendant's Age at Time of Offense Do you unanimously find that the government proved beyond a reasonable doubt that the defendant was eighteen (18) years of age at the time he committed the offense for which sentence is to be imposed? YES _______ NO _______ If you answered yes, proceed to the next section (I­B) of this Form. If you answered no, then stop your deliberations, sign the section of this Form indicating a verdict of life imprisonment (III­B), certify your decision as described in section IV, and notify the court that you have reached a decision. B. Defendant's Intent in Commission of Offense For each type of intent specified below, answer "yes" or "no" according to whether you unanimously find that the government proved beyond a reasonable doubt that the defendant acted with the specified intent: 1. The defendant intentionally killed the victim; YES _______ NO _______

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

If you answered yes to one or more of these alternatives, proceed to the next section (I­C) of this Form. If you answered no to all of them, then stop your deliberations, sign the section of this Form indicating a verdict of life imprisonment (III­B), certify your decision as described in section IV, and notify the court that you have reached a decision. -27-

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C. Statutory Aggravating Factors The government has alleged that the following statutory aggravating factors are present in this case. For each factor, answer "yes" or "no" according to whether you unanimously find that the government proved the existence of the factor beyond a reasonable doubt: 1. The defendant has previously been convicted of a federal or state offense punishable by a term of imprisonment of more than one year, involving the use or attempted or threatened use of a firearm against another person: YES _______ NO _______ 2. The defendant committed the offense in an especially heinous or depraved manner in that it involved serious physical abuse to the victim: YES _______ NO _______ If you answered "yes" to one or more of these statutory aggravating factors, you have found the defendant eligible for a death sentence and you should proceed to the next section (II) of this Form to consider whether such a sentence is justified under the circumstances of the case. If you answered "no" to all of these factors, then you have found the defendant ineligible for a death sentence and you should stop your deliberations, sign the section of this Form indicating a verdict of life imprisonment (III­B), certify your decision as described in section IV, and notify the court that you have -28-

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reached a decision. II. Findings Regarding Justification for a Death Sentence A. Non-Statutory Aggravating Factors The government has alleged that the following non-statutory aggravating factor is present in this case. Answer "yes" or no according to whether you unanimously find that the government proved the existence of the factor beyond a reasonable doubt: 1. Future Dangerousness of the Defendant: the defendant is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others. YES _______ NO _______ Regardless of your findings on these non-statutory factors, you must proceed to the next section (II­B) of this Form. B. Mitigating Factors The defendant has alleged that the following mitigating factors are present in this case. For each of these factors, answer "yes" or "no" according to whether any juror (or jurors) finds that the defendant has proved the existence of the factor by a preponderance of the evidence: Insert alleged mitigating factors (which must match those specified in the associated instruction), each followed by blanks for "yes" or "no" findings. In this instance, the "yes" blank should indicate that -29-

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any one or more jurors finds the factor was proved, while the "no" blank should indicate that no juror finds the factor was proved. As explained in the Court's instructions, the law permits you to consider any other relevant mitigating information, in addition to the specific mitigating factors alleged by the defendant listed above, so long as you find that it was proved by a preponderance of the evidence. As with specific mitigating factors, your findings in this regard need not be unanimous. Did one or more jurors find that other relevant mitigating information was proved? YES _______ NO _______ If you answered "yes," list the additional mitigation information you found to be present in the space provided immediately below: When you have completed your findings regarding mitigation, proceed to the next section (II­C) of this Form, where you will weigh the aggravating factors with the mitigating factors, if any, that you have found to be present in this case. C. Weighing Process The question you must answer at this stage of your deliberations is whether the proven aggravating factors sufficiently outweigh the proven mitigating factors and information to justify a sentence of death or, if you have not found any mitigation present, whether the aggravating factors considered alone justify a death sentence. If you unanimously find that the weight of the aggravating factors is sufficient to justify a -30-

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

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VERDICT­SENTENCE OF DEATH Based upon our consideration of the evidence and in accordance with the court's instructions, we find by unanimous vote that a sentence of death shall be imposed on the defendant. 1. _______________________ 2. _______________________ 3. _______________________ 4. _______________________ 5. _______________________ 6. _______________________ 7. _______________________ 8. _______________________ 9. _______________________ 10.______________________ 11. ______________________ 12. ______________________

Dated this ____ day of ____________, 2007.

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VERDICT­LIFE IMPRISONMENT Based upon our consideration of the evidence and in accordance with the court's instructions, we find that a sentence of life imprisonment without release shall be imposed on the defendant. 1. _______________________ 2. _______________________ 3. _______________________ 4. _______________________ 5. _______________________ 6. _______________________ 7. _______________________ 8. _______________________ 9. _______________________ 10.______________________ 11. ______________________ 12. ______________________

Dated this _____ day of ___________, 2007.

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IV. Certification By signing below, each juror certifies that 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. ______________________ Dated this _______ day of _______________, 2007.

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Case 1:00-cr-00531-WYD

Document 2431

Filed 03/23/2007

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CERTIFICATE OF SERVICE I hereby certify that on this 23rd day of March 2007, I electronically filed the foregoing GOVERNMENT'S REVISED PROPOSED JURY INSTRUCTIONS FOR THE PENALTY PHASE with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Attorneys for William Sablan Patrick J. Burke [email protected] Nathan Dale Chambers [email protected] [email protected] Susan Lynn Foreman [email protected]

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

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