10th Cir. Crim. Pattern Jury Instr. 3.08.6

COMMITTING THE OFFENSE

You must unanimously find that the government has proved

beyond a reasonable doubt that the defendant com mitted the

offense in an especially heinous, cruel, or depraved manner in

that it involved either torture or serious physical abuse to the

victim.

Torture includes severe mental as well as physical abuse. For

such abuse to amount to torture, the victim must have been

conscious of it at the time it was inflicted. Further, the defendant

must have specifically intended to inflict severe mental or physical

pain upon the victim, apart from killing the victim.

On the other hand, 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 abu se 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.

Pertinent factors which you may consider in determining

whether a killing was especially heinous, cruel, or depraved

include:

[Insert factors as appropriate].