Criminal Resource Manual 73 Outline for Death Penalty Prosecution Memorandum

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73
Outline for Death Penalty Prosecution Memorandum

United States Department of Justice
United States Attorney
District of __________
Date
MEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL
TO: [Name]
Assistant Attorney General
Criminal Division
FROM: [Name]
United States Attorney
District of _________
[Telephone Number]
[Name of Primary AUSA]
[Telephone Number]
SUBJECT: Request from the United States Attorney for the District of _______ for Authorization To Seek/Not to Seek the Death Penalty Against [Name the Defendants]/Accept a Guilty Plea from [Name of Defendant]

The United States Attorney for the District of ________ requests the authorization of the Attorney General, pursuant to the United States Attorneys' Manual, § 9-10.080, to seek/not to seek the death penalty against [defendant(s)] for the murder of [victim(s)] / § 9-10.110 to accept a guilty plea from [defendant].

[State whether the case involves any of the unusual circumstances set forth in USAM 9-10.080 A(1).]

TIMETABLE

[Identify date(s) of indictment(s), any deadline established by the trial court for filing a notice of intent to seek the death penalty, and trial date. If there is no deadline for filing the death notice, identify any additional considerations that could impact the time available for the review process. USAM 9-10.080 A(1).]

[If the U.S. Attorney's submission has been forwarded to the Department less than 150 days in advance of a scheduled trial date or less than 90 days prior to a court established deadline for the death penalty decision, indicate the reason(s) for the untimely submission as required by USAM 9-10.080.]

PROCEDURAL HISTORY

[In addition to delineating the procedural history of the case, identify each capital charge, distinguishing by defendant as appropriate.]
STATEMENT OF FACTS

Description of capital offense

[Narrative delineation of the facts of the offense(s), the government's theory of the offense(s). See USAM 9-10.080 A(2).]

The evidence

[Set forth a comprehensive delineation of the evidence including, but not limited to: expected testimony of key witnesses; plea agreements with cooperating witnesses; eyewitness identifications; confessions and admissions; intercepted communications and surveillance videos; physical evidence; and forensic evidence. See USAM 9-10.080 A(2).]

Chart of admissible evidence

[If the case involves multiple death penalty-eligible offenses or offenders, with different evidence applicable to each, include a chart to clarify how the government will establish its case. USAM 9-10.080 A(2).]

Legal and Evidentiary Issues

[Discuss relevant prosecutorial considerations, including any legal and evidentiary issues affecting the prosecution of the capital charges or a punishment hearing on those charges. See USAM 9-10.130 A(3).]

DEATH PENALTY ANALYSIS

Aggravating factors

Threshold intent factors

[As a prerequisite to imposing the death penalty, the government must establish, beyond a reasonable doubt, that at least one of the four threshold intent requirements under 18 U.S.C. § 3591(a)(2) applies to the defendant's conduct. For each defendant, identify the intent factor(s) applicable to each capital offense charged against that defendant and, if not self-evident from the facts, describe why the factor is applicable. USAM 9-10.080 A(4)]
Statutory Aggravating Factors

[Statutory aggravating factors are specific to defendant and charged offense. In order for a defendant to be eligible for the death penalty for a charged offense, the government must establish beyond a reasonable doubt that at least one of the statutory aggravating factor under 18 U.S.C. § 3592(c) applies to the defendant for the charge. For each defendant, identify all of the statutory aggravating factors applicable to each capital offense charged and, if not self-evident from the facts, describe why the factor is applicable. USAM 9-10.080 A(4)]

Non-statutory aggravating factors

[Title 18 capital sentencing provisions allow the government to rely on non-statutory aggravating factors. See 18 U.S.C. § 3592(b)-(d). Identify applicable non-statutory factors by defendant and offense charged. Describe why it applies and the supporting evidence. The factor must be "sufficiently specific to provide meaningful guidance to the jury" and have a "core meaning that a criminal jury should be capable of understanding." Avoid pejorative adjectives, such as heinous or atrocious that describe the crime as a whole. USAM 9-10.080 A(4)]

Mitigating Factors

Statutory mitigating factors

[For each death penalty-eligible offender, identify the statutory mitigators raised by the defense or suggested by the evidence. The statutory mitigating factors for Title 18 are set forth at § 3592(a)(1)-(7). Classify mitigators by offense as appropriate. USAM 9-10.080 A(4)]

Non-Statutory Mitigating Factors

[18 U.S.C. § 3592(a)(8) allows the defendant to present evidence of other mitigating factors. Mitigating factors are those aspects of a defendant's character, background or the circumstances of the offense that reflect a reduced personal culpability for the offense or otherwise mitigate against imposition of a death sentence. Identify the non-statutory mitigators raised by the defense or suggested by the evidence. USAM 9-10.080 A(4)]

Weighing of aggravating and mitigating factors under 18 U.S.C. § 3593

[The U.S. Attorney should include his or her conclusion on whether all the aggravating factor(s) found to exist sufficiently outweigh all the mitigating factor(s) found to exist to justify a sentence of death, or in the absence of mitigating factors, whether the aggravating factor(s) alone are sufficient to justify a sentence of death. USAM 9-10.080 A(4); see also Standard for Determination USAM 9-10.130 C.]

THE DEFENDANT(S)

[Age, background, and criminal history. USAM 9-10.080 A(5). Do not include racial or ethnic information here.]

THE VICTIM(S)

[Age, background, and criminal history. USAM 9-10.080 A(6). Do not include racial or ethnic information here.]

[Include the views of the victim's family concerning the death penalty. USAM 9-10.080 A(7).]

FEDERAL INTEREST

[Discuss whether there is exclusive federal jurisdiction or whether concurrent jurisdiction exists with a State or local government. If jurisdiction is concurrent, identify federal interest in the prosecution. See USAM 9-10.080 A(8); see also USAM 9-10.090.]

CONSULAR NOTIFICATION

[If a defendant is a citizen of a foreign country, describe steps taken to adhere to the consular notification requirement of the Vienna Convention. (See State Department website at http://travel.state.gov/consul_notify.html). Otherwise, state that the defendant is a United States citizen only and not a citizen of a foreign country. USAM 9-10.080 A(9).]

CONCLUSION AND RECOMMENDATION

[Set forth basis for U.S. Attorney's recommendation whether the death penalty should be sought against the capital defendant(s). The conclusion should be sufficiently detailed to make clear the bases for the recommendation. USAM 9-10.080 A(10).]

[State request for authorization to seek/not to seek the death penalty against defendant(s) for the death(s) of victim(s), or to accept a guilty plea from defendant(s).]

___________________
[Name]
United States Attorney
District of __________
Attachments

Indictment, Proposed Indictment, or Superseding Indictment

Proposed Notice of Intent to Seek the Death Penalty

Defense Submission(s)

Non-Decisional Information Form(s) Under Seal

Death Penalty Evaluation Form(s)
[updated November 2011]

		United States Department of Justice United States Attorney District of __________ Date
MEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL
TO:	[Name] Assistant Attorney General Criminal Division
FROM:	[Name] United States Attorney District of _________ [Telephone Number] [Name of Primary AUSA] [Telephone Number]
SUBJECT:	Request from the United States Attorney for the District of _______ for Authorization To Seek/Not to Seek the Death Penalty Against [Name the Defendants]/Accept a Guilty Plea from [Name of Defendant]
The United States Attorney for the District of ________ requests the authorization of the Attorney General, pursuant to the United States Attorneys' Manual, § 9-10.080, to seek/not to seek the death penalty against [defendant(s)] for the murder of [victim(s)] / § 9-10.110 to accept a guilty plea from [defendant]. [State whether the case involves any of the unusual circumstances set forth in USAM 9-10.080 A(1).] TIMETABLE [Identify date(s) of indictment(s), any deadline established by the trial court for filing a notice of intent to seek the death penalty, and trial date. If there is no deadline for filing the death notice, identify any additional considerations that could impact the time available for the review process. USAM 9-10.080 A(1).] [If the U.S. Attorney's submission has been forwarded to the Department less than 150 days in advance of a scheduled trial date or less than 90 days prior to a court established deadline for the death penalty decision, indicate the reason(s) for the untimely submission as required by USAM 9-10.080.] PROCEDURAL HISTORY [In addition to delineating the procedural history of the case, identify each capital charge, distinguishing by defendant as appropriate.] STATEMENT OF FACTS Description of capital offense [Narrative delineation of the facts of the offense(s), the government's theory of the offense(s). See USAM 9-10.080 A(2).] The evidence [Set forth a comprehensive delineation of the evidence including, but not limited to: expected testimony of key witnesses; plea agreements with cooperating witnesses; eyewitness identifications; confessions and admissions; intercepted communications and surveillance videos; physical evidence; and forensic evidence. See USAM 9-10.080 A(2).] Chart of admissible evidence [If the case involves multiple death penalty-eligible offenses or offenders, with different evidence applicable to each, include a chart to clarify how the government will establish its case. USAM 9-10.080 A(2).] Legal and Evidentiary Issues [Discuss relevant prosecutorial considerations, including any legal and evidentiary issues affecting the prosecution of the capital charges or a punishment hearing on those charges. See USAM 9-10.130 A(3).] DEATH PENALTY ANALYSIS Aggravating factors Threshold intent factors [As a prerequisite to imposing the death penalty, the government must establish, beyond a reasonable doubt, that at least one of the four threshold intent requirements under 18 U.S.C. § 3591(a)(2) applies to the defendant's conduct. For each defendant, identify the intent factor(s) applicable to each capital offense charged against that defendant and, if not self-evident from the facts, describe why the factor is applicable. USAM 9-10.080 A(4)] Statutory Aggravating Factors [Statutory aggravating factors are specific to defendant and charged offense. In order for a defendant to be eligible for the death penalty for a charged offense, the government must establish beyond a reasonable doubt that at least one of the statutory aggravating factor under 18 U.S.C. § 3592(c) applies to the defendant for the charge. For each defendant, identify all of the statutory aggravating factors applicable to each capital offense charged and, if not self-evident from the facts, describe why the factor is applicable. USAM 9-10.080 A(4)] Non-statutory aggravating factors [Title 18 capital sentencing provisions allow the government to rely on non-statutory aggravating factors. See 18 U.S.C. § 3592(b)-(d). Identify applicable non-statutory factors by defendant and offense charged. Describe why it applies and the supporting evidence. The factor must be "sufficiently specific to provide meaningful guidance to the jury" and have a "core meaning that a criminal jury should be capable of understanding." Avoid pejorative adjectives, such as heinous or atrocious that describe the crime as a whole. USAM 9-10.080 A(4)] Mitigating Factors Statutory mitigating factors [For each death penalty-eligible offender, identify the statutory mitigators raised by the defense or suggested by the evidence. The statutory mitigating factors for Title 18 are set forth at § 3592(a)(1)-(7). Classify mitigators by offense as appropriate. USAM 9-10.080 A(4)] Non-Statutory Mitigating Factors [18 U.S.C. § 3592(a)(8) allows the defendant to present evidence of other mitigating factors. Mitigating factors are those aspects of a defendant's character, background or the circumstances of the offense that reflect a reduced personal culpability for the offense or otherwise mitigate against imposition of a death sentence. Identify the non-statutory mitigators raised by the defense or suggested by the evidence. USAM 9-10.080 A(4)] Weighing of aggravating and mitigating factors under 18 U.S.C. § 3593 [The U.S. Attorney should include his or her conclusion on whether all the aggravating factor(s) found to exist sufficiently outweigh all the mitigating factor(s) found to exist to justify a sentence of death, or in the absence of mitigating factors, whether the aggravating factor(s) alone are sufficient to justify a sentence of death. USAM 9-10.080 A(4); see also Standard for Determination USAM 9-10.130 C.] THE DEFENDANT(S) [Age, background, and criminal history. USAM 9-10.080 A(5). Do not include racial or ethnic information here.] THE VICTIM(S) [Age, background, and criminal history. USAM 9-10.080 A(6). Do not include racial or ethnic information here.] [Include the views of the victim's family concerning the death penalty. USAM 9-10.080 A(7).] FEDERAL INTEREST [Discuss whether there is exclusive federal jurisdiction or whether concurrent jurisdiction exists with a State or local government. If jurisdiction is concurrent, identify federal interest in the prosecution. See USAM 9-10.080 A(8); see also USAM 9-10.090.] CONSULAR NOTIFICATION [If a defendant is a citizen of a foreign country, describe steps taken to adhere to the consular notification requirement of the Vienna Convention. (See State Department website at http://travel.state.gov/consul_notify.html). Otherwise, state that the defendant is a United States citizen only and not a citizen of a foreign country. USAM 9-10.080 A(9).] CONCLUSION AND RECOMMENDATION [Set forth basis for U.S. Attorney's recommendation whether the death penalty should be sought against the capital defendant(s). The conclusion should be sufficiently detailed to make clear the bases for the recommendation. USAM 9-10.080 A(10).] [State request for authorization to seek/not to seek the death penalty against defendant(s) for the death(s) of victim(s), or to accept a guilty plea from defendant(s).]
		___________________ [Name] United States Attorney District of __________
Attachments Indictment, Proposed Indictment, or Superseding Indictment Proposed Notice of Intent to Seek the Death Penalty Defense Submission(s) Non-Decisional Information Form(s) Under Seal Death Penalty Evaluation Form(s)
[updated November 2011]