Outline for Death Penalty Prosecution Memorandum
United States Department of Justice
United States Attorney
District of __________
Date
MEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL
TO: Christopher A. Wray
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 the Death Penalty
Against [Defendant(s)]
TIMETABLE: [Date of indictment and trial date and/or deadline for filing notice
of intent to seek the death penalty.]
The United States Attorney for the District of ________ requests the
approval of the Attorney General, pursuant to the United States Attorneys'
Manual, § 9-10.040, to seek the death penalty against
[defendant(s)] for the murder of [victim(s)].
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.]
PROCEDURAL HISTORY
DESCRIPTION OF THE CAPITAL OFFENSE
[Identify each eligible charge and the elements of the offense charged.]
STATEMENT OF FACTS
[Set forth a comprehensive discussion of the facts including, but not
limited to: expected testimony of all key witnesses; plea agreements with
cooperating witnesses; eyewitness identifications; confessions and admissions;
intercepted communications and surveillance videos; physical evidence; and
forensic reports and laboratory results.]
[If the case involves multiple death penalty-eligible offenses and
offenders, you should include a chart of admissible evidence of each offense for
each offender.]
LEGAL AND EVIDENTIARY ISSUES
[Describe any legal and evidentiary issues affecting the prosecution of the
capital charges or a punishment hearing on those charges.]
THE DEFENDANT(S)
[Age, criminal history, etc. Do not include racial or ethnic information
here.]
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.]
THE VICTIM(S)
[Age, history, etc. Do not include racial or ethnic information here.]
[Include any information concerning the impact of the homicide on the
victim's family.]
[Include the views of the victim's family concerning the death penalty.]
FEDERAL INTEREST
[Discuss whether there is exclusive federal jurisdiction or whether
concurrent jurisdiction exists with a State or local government. If applicable,
discuss issues of foreign or tribal jurisdiction.]
AGGRAVATING FACTORS
- Eligibility for Capital Punishment
[As a prerequisite to imposing the death penalty, the government must
establish, beyond a reasonable doubt, that at least one of the four intent
requirements is applicable to the defendant's conduct. For Title 18 offenses,
these intent factors are set forth in 18 U.S.C. § 3591(a)(2); for Title 21
prosecutions, they are set forth in 21 U.S.C. § 848(n)(1). 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.]
B. Statutory Aggravating Factors
[In order for a defendant to be eligible for imposition of the death
penalty, the government must also establish, beyond a reasonable doubt, during the
sentencing hearing the existence of at least one of the statutory aggravating
factors applicable to the charge. Statutory aggravating factors vary with the
offense charged and are listed in 18 U.S.C. § 3592(c) and 21 U.S.C. §
848(n)(2)-(12). 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.]
- [Statutory Aggravating Factor. (Identify appropriate
subsection). Describe why it applies to the specific charge and the evidence
in support thereof.]
- Non-Statutory Aggravating Factors
[Both the Title 18 and Title 21 capital sentencing provisions allow the
government to rely on non-statutory aggravating factors. See 18 U.S.C.
§ 3592(b)-(d), 21 U.S.C. § 848(h)(1)(B) & (n). Identify applicable non-
statutory factors by defendant and offense charged.]
- Victim Impact Evidence.
- [Non-Statutory Aggravating Factor. 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 that describe
the crime as a whole such as heinous, atrocious, cruel, vile, horrible, and
inhuman.]
MITIGATING FACTORS
- Statutory Mitigating Factors
[For each death penalty-eligible offender, identify the statutory mitigating
factors that have been raised by the defense or are otherwise suggested by the
evidence in the case. The statutory mitigating factors for Title 18 and Title 21
capital sentencing offenses are set forth at § 3592(a)(1)-(7) and § 848
(m)(1)-(9) respectively. Distinguish mitigation by offense if appropriate.]
B. Non-Statutory Mitigating Factors
[18 U.S.C. § 3592(a)(8) and/or 21 U.S.C. § 848(m)(10) allow 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.]
CONCLUSION AND RECOMMENDATION
[State the aggravating factors and mitigating factors found and considered
and explain the reason(s) why the aggravating factor(s) sufficiently outweigh the
mitigating factor(s) to justify a sentence of death, or, in the absence of a
mitigating factor, why the aggravating factor(s) alone are sufficient to justify a
sentence of death.]
[State request for authorization to seek the death penalty against
[DEFENDANT(S)] for the death of [VICTIM(S)].]
[Name]
United States Attorney
District of __________
[Date]
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)
