Before/immediately following indictment, this form is to be prepared by the
lead AUSA in any case in which the Government intends to or could charge a
defendant with an offense under 21 U.S.C. § 848(e) which is subject to the
penalty of death.
COURT DOCKET NO.:________________________________________________
I. CAPITAL CHARGES: Identify each applicable subsection of 21
U.S.C. § 848(e).
II.INTENT FACTORS (21 U.S.C. § 848 (n)(1)). Require proof
beyond a reasonable doubt.
_____ (A) The defendant intentionally killed the victim;
_____ (B) The defendant intentionally inflicted serious bodily injury
which resulted in the death of the victim;
_____ (C) The defendant intentionally engaged in conduct intending that
the victim be killed or that lethal force be employed against the
victim, which resulted in the death of the victim; and/or
_____ (D) The defendant engaged in conduct which - (i) the defendant
knew would create a grave risk of death to a person, other than one
of the participants in the offense; and (ii) resulted in the death
of the victim.
III. STATUTORY AGGRAVATING FACTORS (21 U.S.C. §
848(n)). Require proof beyond a reasonable doubt.
____ 1. Previous conviction of offense for which a sentence of death or
life imprisonment was authorized -- The defendant has
previously been convicted of another Federal or State offense
resulting in the death of a person, for which a sentence of life
imprisonment or death was authorized by statute.
____ 2. Previous conviction of other serious offenses -- The
defendant has previously been convicted of two or more State or
Federal offenses punishable by a term of imprisonment of more than
one year, committed on different occasions, involving the
infliction of, or attempted infliction of, serious bodily injury
or death upon another person.
____ 3. Previous conviction of two felony drug offenses -- The
defendant has previously been convicted of two or more Federal or
State offenses, each punishable by a term of imprisonment of more
than one year, committed on different occasions, involving the
distribution of a controlled substance.
____ 4. Grave risk of death to additional persons -- In the
commission of the offense, or in escaping apprehension for a
violation of [848(e)], the defendant knowingly created a grave
risk of death to one or more persons in addition to the victim of
____ 5. Procurement of the offense by payment -- The defendant
procured the commission of the offense by payment, or promise of
payment, of anything of pecuniary value.
____ 6. Commission of the offense for pecuniary gain -- The
defendant committed the offense as consideration for the receipt,
or in the expectation of the receipt, of anything of pecuniary
____ 7. Substantial planning and premeditation -- The defendant
committed the offense after substantial planning and
____ 8. Vulnerability of the victim -- The victim was particularly
vulnerable due to old age, youth, or infirmity.
____ 9. Previous conviction of serious Federal drug offense -- The
defendant had previously been convicted of a Federal controlled
substances violation carrying a penalty of 5 or more years, or had
previously been convicted of engaging in a continuing criminal
___ 10. Distribution of Controlled Substances to Juveniles -- The
defendant committed the murder in relation to a violation of 21
U.S.C. § , distributing controlled substances to
___ 11. Heinous, cruel or depraved manner of committing the offense
-- The defendant committed the offense in an especially heinous,
cruel, or depraved manner in that it involved torture or serious
physical abuse to the victim.
IV. NON-STATUTORY AGGRAVATING FACTORS (21 U.S.C.
§§ 848 (n) and (h)(1)(B)). Require proof beyond a reasonable doubt.
_____ 1. Participation in additional uncharged murders, attempted
murders, or other serious acts of violence.
_____ 2. Obstruction of justice. The victim was killed in an
effort by the defendant to obstruct justice, tamper with a
witness or juror, or in retaliation for cooperating with
_____ 3. Contemporaneous convictions for multiple murders, attempted
murders, or other serious acts of violence.
_____ 4. Future dangerousness to the lives and safety of other persons, as
evidenced by one or more of the following:
____ a. specific threats of violence,
____ b. continuing pattern of violence,
____ c. specific admissions of violence,
____ d. low rehabilitative potential,
____ e. lack of remorse,
____ f. mental evaluation, and/or
____ g. custody classification (escape risk).
_____ 5. Victim impact evidence concerning the effect of the offense on the victim
and the victim's family as evidenced by oral testimony or a victim impact statement.
V. STATUTORY MITIGATING FACTORS (21 U.S.C. § 848(m)(1)-(9)).
Identify factors that you expect the defendant will be able to prove at a sentencing
proceeding by a preponderance of the evidence or that are reasonably
raised by the evidence.
_____ 1. Impaired capacity -- The defendant's capacity to
appreciate the wrongfulness of conduct or to conform conduct to
the requirements of the law was significantly impaired,
regardless of whether the capacity was so impaired as to
constitute a defense to the charge.
_____ 2. Duress -- The defendant was under unusual and substantial
duress, regardless of whether the duress was of such a degree as
to constitute a defense to the charge.
_____ 3. Minor participation -- The defendant is punishable as a
principal in the offense, which was committed by another, but
the defendant's participation was relatively minor, regardless
of whether the participation was so minor as to constitute a
defense to the charge.
______ 4. Reasonably foreseen -- The defendant could not reasonably
have foreseen that the defendant's conduct in the course of the
commission of murder, or other offense resulting in death for
which the defendant was convicted, would cause, or would create
a grave risk of causing, death to any person.
______ 5. Youth -- The defendant was youthful, although not under
the age of 18.
______ 6. No prior criminal record -- The defendant does not have a
significant prior criminal record.
______ 7. Disturbance -- The defendant committed the offense under severe mental
or emotional disturbance.
______ 8. Equally culpable defendants -- Another defendant or defendants,
equally culpable in the crime, will not be punished by death.
_____ 9. Victim's consent -- The victim consented to the criminal conduct that
resulted in the victim's death.
_____ 10. Other factors (or non-statutory mitigating factors) --
Other factors in the defendant's background, record, or
character or any other circumstance of the offense
that mitigate against imposition of the death sentence.
V.FEDERAL INTEREST. Identify the federal interest underlying the
_____ 1. Exclusive federal jurisdiction
_____ 2. Involves uniquely federal victim, defendant or location
_____ 3. Interstate criminal activity
_____ 4. State can't prosecute multiple crimes/counts in one
_____ 5. Extensive use of Federal investigative resources
_____ 6. Advantageous Federal evidentiary or procedural rules
_____ 7. State doesn't have investigative grand jury
_____ 8. Prosecution at request or by agreement with state
_____ 9. Memorandum of understanding
_____ 10. Other. Please specify: __________________________________________
[updated April 2004]
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