IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION



UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-0074

vs.

FINAL JURY INSTRUCTIONS

MICHAEL WELP,

Defendant.

____________________



         Ladies and Gentlemen of the Jury:

         The instructions I gave you at the beginning of the trial and during the trial remain in effect. I will now give you some additional instructions.

          You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. This is true even though some of those I gave you at the beginning of and during trial are not repeated here.

         The instructions I am about to give you now are in writing and will be available to you in the jury room. I emphasize, however, that this does not mean they are more important than my earlier instructions. Again, all instructions, whenever given and whether in writing or not, must be followed.

 


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         In considering these instructions, attach no importance or significance whatsoever to the order in which they are given.


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         Neither in these instructions nor in any ruling, action, or remark that I have made during this trial have I intended to give any opinion or suggestion as to what the facts are or what your verdict should be.


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         It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different.

         Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.

 


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         I have mentioned the word “evidence.” The “evidence” in this case consists of the following: the testimony of the witnesses and the documents and other things received as exhibits.

         You may use reason and common sense to draw deductions or conclusions from facts which have been established by the evidence in the case.

         Certain things are not evidence. I shall list those things again for you now:

         1. Statements, arguments, questions, and comments by the lawyers are not evidence.

         2. Objections are not evidence. The parties have a right to object when they believe something is improper. You should not be influenced by the objection. If I sustained an objection to a question, you must ignore the question and must not try to guess what the answer might have been.

         3. Testimony that I struck from the record, or told you to disregard, is not evidence and must not be considered.

         4. Anything you saw or heard about this case outside the courtroom is not evidence.

         Finally, if you were instructed that some evidence was received for a limited purpose only, you must follow that instruction.


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         There are two types of evidence from which a jury may properly find the truth as to the facts of a case: direct evidence and circumstantial evidence. Direct evidence is the evidence of the witness to a fact or facts of which they have knowledge by means of their senses. The other is circumstantial evidence – the proof of a chain of circumstances pointing to the existence or nonexistence of certain facts. The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.


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         You have heard evidence that the defendant was involved in the sale of pseudoephedrine to Ryan Buccheim at times other than charged in the Indictment. You may not use this evidence to decide whether the defendant committed the crime charged in the indictment. However, if you are convinced beyond a reasonable doubt, based on other evidence introduced, that the defendant did carry out the acts involved in the crime charged in the Indictment, then you may use this evidence to decide Defendant’s knowledge or reasonable belief that the pseudoephedrine he possessed and transferred as charged in the indictment was with knowledge that it would be used to manufacture methamphetamine.

         Remember, even if you find that the defendant may have committed a similar act in the past, this is not evidence that he committed such an act in this case. You may not convict a person simply because you believe he may have committed similar acts in the past. The defendant is on trial only for the crimes charged, and you may consider the evidence of prior acts only on the issue of Defendant’s knowledge.

 

 


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         You have heard tape recordings of conversations. These conversations were legally recorded, and you may consider the recordings just like any other evidence.


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         The jurors are the sole judges of the weight and credibility of the testimony and the value to be given to each witness, including the defendant, who has testified in this case. In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.

         In deciding what testimony to believe, consider the witness’ intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness’ memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe.

         In deciding whether or not to believe a witness, keep in mind that people sometimes hear or see things differently and sometimes forget things. You need to consider, therefore, whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or only a small detail.

 


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         In the previous instruction, I instructed you generally on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be “impeached” and how you are to consider the testimony of certain witnesses.

         A witness may be discredited or impeached by contradictory evidence; by a showing that the witness testified falsely concerning a material matter; by showing the witness has a motive to be untruthful; or by evidence that at some other time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness’ present testimony.

         You have heard evidence that certain witnesses have been convicted of crimes. A conviction of a crime is a factor you may consider in deciding whether to believe a witness and how much weight to give their testimony.

         You have heard that certain witnesses may receive benefits from the government in connection with their testimony and information in this case. When a witness is testifying for personal gain or advantage rather than for an independent law enforcement purpose, you may consider whether the witness is biased and whether his testimony is reliable. You may give testimony such weight as you feel it deserves. Whether or not the witness’ testimony may have been influenced by the benefit sought is for you to decide.

 

 

(CONTINUED)

 


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         You have heard evidence that a witness could receive a reduced sentence on criminal charges pending against the witness in return for the witness’ cooperation with the prosecution in this case. The witness has entered into a “plea agreement” with the U.S. Attorney’s Office that provides that if the witness gives substantial assistance to the government in its investigation of federal crimes, the prosecutor could file a motion for a reduction of his or her sentence. If the prosecutor’s office handling the witness’ case believes the witness has given substantial assistance, the prosecutor can file in the court in which the charges are pending against the witness a motion to reduce his or her sentence below the applicable federal sentencing guideline range. The judge has no power to reduce a sentence unless the prosecutor files such a motion. If such a motion for reduction of sentence for substantial assistance is filed by the prosecutor, then it is up to the judge to decide whether to reduce the sentence at all, and if so, how much to reduce it. You may give the testimony of the witness such weight as you think it deserves. Whether or not the testimony of the witness may have been influenced by his or her hope of receiving a reduced sentence is for you to decide.


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         A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.


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         The charge in this case is as follows:

         Count 1 of the Indictment charges that on or about March 13, 2003, MICHAEL WELP did knowingly and intentionally distribute and possess pseudoephedrine, a List I Chemical, knowing or having reasonable cause to believe that the Listed Chemical would be used to manufacture methamphetamine, a Schedule II controlled substance.

         The defendant has pled not guilty to the crime with which he is charged.


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         As I told you at the beginning of the trial, an Indictment is simply an accusation. It is not evidence of anything. To the contrary, the defendant is presumed to be innocent. Thus the defendant, even though charged, begins the trial with no evidence against him. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the government proves, beyond a reasonable doubt, each essential element of a particular crime charged.

         There is no burden upon the defendant to prove that he is innocent.


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      The charge may be proven in one of two different ways. For the sake of convenience, one of the ways is referred to in these instructions and on the verdict form as “Alternative A” and the other way is referred to in these instructions and on the verdict form as “Alternative B.” You will consider each alternative separately and return a unanimous and separate verdict on each alternative.

Alternative A

         The crime of distribution of pseudoephedrine knowing or having reasonable cause to believe it would be used to manufacture methamphetamine, as charged in Count 1 of the Indictment, has three essential elements, which are:

One, that on or about March 13, 2003, the defendant intentionally transferred pseudoephedrine to another person;

 

Two, the transfer was made with the knowledge that the substance was pseudoephedrine; and

 

Three, the Defendant made the transfer knowing or having reasonable cause to believe that the pseudoephedrine would be used to manufacture methamphetamine.


         If all of these essential elements have been proved beyond a reasonable doubt as to the Defendant, then you must find the Defendant guilty of the crime charged as Alternative A in Count 1 of the Indictment. Otherwise, you must find the Defendant not guilty of the crime charged as Alternative A in Count 1 of the Indictment.

 

 


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Alternative B

         The crime of possession of pseudoephedrine knowing or having reasonable cause to believe it would be used to manufacture methamphetamine, as charged in Count 1 of the Indictment, has two essential elements, which are:

One, Ddefendant knowingly and intentionally possessed pseudoephedrine on or about March 13, 2003; and

 

Two, At the time he possessed pseudoephedrine, the defendant knew or had reasonable cause to believe that the pseudoephedrine would be used to manufacture methamphetamine.


         If all of these essential elements have been proved beyond a reasonable doubt as to the defendant, then you must find the defendant guilty of the crime charged as Alternative B in Count 1 of the Indictment. Otherwise you must find the defendant not guilty of the crime charged as Alternative B in Count 1 of the Indictment.


INSTRUCTION NO.


         You are instructed as a matter of law that methamphetamine is a Schedule II controlled substance. You are also instructed as a matter of law that pseudoephedrine is a List I Chemical. You must ascertain whether or not the substance in question was pseudoephedrine. In so doing, you may consider all evidence in the case which may aid in the determination of that issue.

         You are instructed that one ounce contains about 28.35 grams and that one pound contains about 453.6 grams.



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         You will note the Indictment charges that the offenses were committed “on or about” certain dates. The government need not prove with certainty the exact date or the exact time period of an offense charged. It is sufficient if the evidence established that an offense occurred within a reasonable time of the date or period of time alleged by the Indictment.


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         The law recognizes several kinds of possession. A person may have actual possession or constructive possession. A person may have sole or joint possession.

         A person who knowingly has direct physical control over a thing, at a given time, is then in “actual possession” of it.

         A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in “constructive possession” of it.

         If one person alone has actual or constructive possession of a thing, possession is “sole.” If two or more persons share actual or constructive possession of a thing, possession is “joint.”

         Whenever the word “possession” has been used in these instructions it includes “actual” as well as “constructive” possession and also “sole” as well as “joint” possession.


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         An act is done “knowingly” if the defendant realized what he was doing and did not act through ignorance, mistake or accident. The government is not required to prove that the defendant knew that his acts or omissions were unlawful. You may consider the evidence of defendant’s acts and words, along with all other evidence, in deciding whether defendant acted knowingly.


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         You are instructed that with regard to whether the Defendant distributed pseudoephedrine or possessed pseudoephedrine knowing or having reasonable cause to believe that it would be used to manufacture methamphetamine, the government must present credible evidence that is sufficient in content and quality to prove the Defendant generated a reasonable belief that the pseudoephedrine he possessed or distributed would in fact be used to manufacture methamphetamine. You must focus on the Defendant’s reason to know based upon the evidence presented at trial. It is not enough if the government presents evidence tending to show that the manufacturing of methamphetamine from pseudoephedrine would be predictable to a member of the general public, or even that it was reasonably foreseeable to a member of the general public that pseudoephedrine may be used to manufacture methamphetamine. Rather, your focus should be on the Defendant’s reason to know based on all the evidence introduced at trial regarding the facts and circumstances known to him at the time the offense was committed.


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         Knowledge may be proven by circumstantial evidence. It rarely can be established by other means. While witnesses may see or hear and thus be able to give direct evidence of what a person does or fails to do, there can be no eyewitness account of the state of mind with which the acts were done. But what a defendant does or fails to do may indicate knowledge or lack of knowledge.



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         Exhibits have been admitted into evidence and are to be considered along with all the other evidence to assist you in reaching a verdict. You are not to tamper with the exhibits or their contents, and each exhibit should be returned into open court, along with your verdict, in the same condition as it was received by you.

 


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         Throughout the trial, you have been permitted to take notes. Your notes should be used only as memory aids, and you should not give your notes precedence over your independent recollection of the evidence.

         In any conflict between your notes, a fellow juror’s notes, and your memory, your memory must prevail. Remember that notes sometimes contain the mental impressions of the note taker and can be used only to help you recollect what the testimony was. At the conclusion of your deliberations, your notes should be left in the jury room for destruction.

 


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         In conducting your deliberations and returning your verdict, there are certain rules you must follow. I shall list those rules for you now.

         First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

         Second, it is your duty, as jurors, to discuss this case with one another in the jury room. You should try to reach an agreement if you can do so without violence to individual judgment, because a verdict - whether guilty or not guilty - must be unanimous.

         Each of you must make your own conscientious decision, but only after you have considered all the evidence, discussed it fully with your fellow jurors, and listened to the views of your fellow jurors.

         Do not be afraid to change your opinions if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right, or simply to reach a verdict.

         Third, if the defendant is found guilty, the sentence to be imposed is my responsibility. You may not consider punishment in any way in deciding whether the government has proved its case beyond a reasonable doubt.

 

 

 

(CONTINUED)


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         Fourth, if you need to communicate with me during your deliberations, you may send a note to me through the marshal or court security officer, signed by one or more

jurors. I will respond as soon as possible either in writing or orally in open court. Remember that you should not tell anyone – including me – how your votes stand numerically.

         Finally, your verdict must be based solely on the evidence and on the law which I have given to you in my instructions. The verdict, whether guilty or not guilty, must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be – that is entirely for you to decide.


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         Attached to these instructions you will find a Verdict Form. The Verdict Form is simply the written notice of the decision that you reach in this case. The answers to the Verdict Form must be the unanimous decision of the jury.

         You will take this Verdict Form to the jury room, and when you have completed your deliberations and each of you has agreed on an answer to the Verdict Form, your foreperson will fill out the Form, sign and date it, and advise the marshal or court security officer that you are ready to return to the courtroom.

         Finally, members of the jury, take this case and give it your most careful consideration, and then without fear or favor, prejudice or bias of any kind, return such verdict as accords with the evidence and these instructions.

 

 

 

 

                                                                 

__________                                                __________________________________

DATE                                                        LINDA R. READE

                                                                 JUDGE, U. S. DISTRICT COURT