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75

Death Penalty Evaluation Form for Killings under Title 21

     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.

DISTRICT:__________________________________________________________ 
                                                            
COURT DOCKET NO.:________________________________________________

DEFENDANT NAME:_________________________________________________ 

AUSA(s):____________________________________________________________

I.  CAPITAL CHARGES: Identify each applicable subsection of 21
U.S.C. § 848(e).

TitleSectionSubsectionVictimOffense Date
     
     
     
     
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 the offense. ____ 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 value. ____ 7. Substantial planning and premeditation -- The defendant committed the offense after substantial planning and premeditation. ____ 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 enterprise. ___ 10. Distribution of Controlled Substances to Juveniles -- The defendant committed the murder in relation to a violation of 21 U.S.C. § [859], distributing controlled substances to juveniles. ___ 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 authorities. _____ 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 prosecution. _____ 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 prosecution _____ 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]