No. CR 02-2028


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.


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


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.


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.


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 the facts which have been established by the evidence in the case.

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

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

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


There are two types of evidence from which a jury may properly find the truth as to the facts of the 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.


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


As you have heard, there is a typewritten transcript of the tape recording I just mentioned. That transcript also undertakes to identify the speakers engaged in the conversation.

You were permitted to have the transcript for the limited purpose of helping you follow the conversation as you listened to the tape recording, and also to help you keep track of the speakers. The transcript, however, is not evidence. The tape recording itself is the primary evidence of its own contents.

You are specifically instructed that whether the transcript correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you have heard here about the preparation of the transcript, and upon your own examination of the transcript in relation to what you heard on the tape recording. If you decide that the transcript was in any respect incorrect or unreliable, you should disregard it to that extent.

Differences in meaning between what you hear in the recording and read in the

transcript may be caused by such things as the inflection in a speaker's voice. You should, therefore, rely on what you hear rather than what you read when there is a difference.


One of the issues in this case is whether the defendant was intoxicated at the time of the acts charged in the Indictment were committed.

Being under the influence of alcohol provides a legal excuse for the commission of the crime of conspiracy only if the effect of the alcohol makes it impossible for the defendant to have formed the intent necessary to knowingly and unlawfully conspire to distribute methamphetamine. Evidence that the defendant acted while under the influence of alcohol may be considered by you, together with all the other evidence, in determining whether or not he did in fact form the intent necessary to knowingly and unlawfully conspire to distribute methamphetamine.


The jurors are the sole judges of the weight and credibility of the testimony and the value to be given to each witness 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.


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 James Kisner has 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 James Kisner may receive benefits from the government in connection with his testimony and information in this case. When an informant 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.


You have heard evidence that James Kisner could receive a reduced sentence on criminal charges pending against him in return for his cooperation with the prosecution in this case. The witness has entered into a proposed 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 crimes, the prosecutor could file a motion for a reduction of his sentence. This witness is subject to a mandatory minimum sentence, that is, a sentence that the law provides must be of certain minimum length. If the prosecutor's office handling James Kisner's 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 sentence below the statutory minimum and 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 hope of receiving a reduced sentence is for you to decide.


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.


The indictment in this case consists of two charged offenses:

Count 1 charges that beginning on about March 2002 and continuing through at least April 2002, the defendant JOAQUIN CABALLERO, did knowingly and unlawfully combine, conspire, confederate and agree, with others known and unknown to the grand jury, to distribute 500 grams or more of methamphetamine.

Count 4 charges that on or about April 26, 2002, defendant, JOAQUIN CABALLERO, did knowingly and intentionally distribute and aided and abetted the distribution of approximately 218.93 grams of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance.

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 the crime charged.

Keep in mind that each count charges a separate crime. You must consider each count separately, and return a separate verdict for each count.

There is no burden upon a defendant to prove that he or she is innocent. Accordingly, the fact that the defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.


The crime of conspiracy as charged in the Count 1 of the Indictment has three essential elements which are:

One, that between about March 2002 and continuing through at least April 2002, two or more persons reached an agreement or came to an understanding to distribute methamphetamine;

Two, the defendant voluntarily joined in the agreement or understanding, either at the time the agreement or understanding was first reached, or at some later time while the agreement or understanding was still in effect; and

Three, that at the time the defendant joined in the agreement or understanding, he knew the purpose of the agreement or understanding.

For you to find defendant guilty of conspiracy, the United States must prove all of these essential elements beyond a reasonable doubt; otherwise, you must find the defendant not guilty under Count 1.

To assist you in deciding whether there was an agreement or understanding to commit the crime of distributing methamphetamine, you are advised that the elements of this crime are set out in Instruction Number 14.

However, keep in mind that Count 1 of the Indictment charges a conspiracy to commit the charged offense and does not require the government to prove that the crime of distribution of methamphetamine was actually committed.

In considering whether the government has met its burden of proving conspiracy as alleged in Count 1 of the Indictment, you are further instructed as follows:

The government must prove that the defendant reached an agreement or understanding with at least one other person. It makes no difference whether that

INSTRUCTION NO. _____ (Contd.)

person is another defendant or whether that person is named in the indictment.

The "agreement or understanding" need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others, or merely associating with others does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one, does not thereby become a member.

But a person may join in an agreement or understanding, as required by this element, without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further, it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person had an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

In determining whether the alleged conspiracy existed, you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. In determining whether the defendant under consideration by you became a member of the conspiracy

INSTRUCTION NO. _____ (Contd.)

you may consider only the acts and statements of that defendant.

If you have found beyond a reasonable doubt that a conspiracy existed and that the
defendant was one of its members, then you may consider acts knowingly done and statements knowingly made by the Defendant's co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to the defendant even though they were done or made in the absence of and without the knowledge of the defendant. This includes acts done or statements made before the defendant joined the conspiracy, for a person who knowingly, voluntarily, and intentionally joins an existing conspiracy is responsible for all of the conduct of the co-conspirators from the beginning of the conspiracy.


The crime of distributing methamphetamine as charged in Count 4 of the Indictment has two essential elements, which are:

One, the defendant intentionally transferred methamphetamine to another person;

Two, at the time of the transfer, the defendant knew that it was methamphetamine.

If the United States has failed to prove each of these elements beyond a reasonable doubt, you must find the defendant not guilty of the crime of possession with intent to distribute controlled substances.


A person may also be found guilty of distribution of methamphetamine even if he personally did not do every act constituting the offense charged if he aided and abetted the commission of the distribution of methamphetamine.

In order to have aided and abetted the commission of a crime a person must:

(1) have known the distribution of methamphetamine was being committed or going to be committed; and

(2) have knowingly acted in some way for the purpose of causing, encouraging, or aiding the commission of the distribution of methamphetamine.

For you to find the defendant guilty of distribution by reason of aiding and abetting, the government must prove beyond a reasonable doubt that all of the essential elements of distribution of methamphetamine were committed by some person or persons and that the defendant aided and abetted the commission of that crime.


The offenses charged in Counts 1 and 4 involve the "possession", "distribution" and "delivery" of a controlled substance. The following definitions of these terms apply in these instructions:

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, 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.

In addition, mere presence where a thing was found or mere physical proximity to the thing is insufficient to establish "possession" of that item. Knowledge of the presence of the thing, at the same time one has control over the thing or the place in which it was found, is required. Thus, in order to establish "possession" of a thing, in addition to knowledge of the presence of the thing, the prosecution must establish that, at the same time, (a) the person intended to exercise control over the thing or place in which it was found; (b) the person had the power to exercise control over the thing or

INSTRUCTION NO. _____ (Contd.)

place in which it was found; and (c) the person knew that he or she had the power to exercise control over the thing or place in which it was found.

The term "distribute" means to deliver a controlled substance to the actual or constructive possession of another person. The term "deliver" means the actual, constructive, or attempted transfer of a controlled substance to the actual or constructive possession of another person. It is not necessary that money or anything of value change hands. The law prohibits the "distribution" of a controlled substance; the prosecution does not have to prove that there was a "sale" of a controlled substance to establish distribution or intent to distribute.


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

In determining whether the defendant is guilty as charged, the government is not required to prove that the amount or quantity of the controlled substance was as charged in the Indictment. The United States need only prove beyond a reasonable doubt that there was a measurable amount of the controlled substance.

If you find the defendant guilty of either charge, you are being asked to make a quantity determination as explained in Instruction No. 18 . You will make the quantity determination only if you find the defendant guilty.


As to the crimes charged in Counts 1 and 4, the government need only prove that the offense involved a detectable amount of methamphetamine in order for you to find the defendant guilty, provided you have found all the elements beyond a reasonable doubt.

If you find the defendant guilty beyond a reasonable doubt under Counts 1 and 4, you will then be asked to determine whether the government has proven the amount of methamphetamine involved in that particular count beyond a reasonable doubt.

If you find the defendant guilty under Count 1 and Count 4, you must then determine the amount of methamphetamine involved in that count.

For your information, one ounce equals 28.35 grams, and one pound equals 453.6 grams.


You will note that the Indictment charges that the offenses were committed "on or about" or "between 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 in the Indictment.


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.


Intent 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 or omitted. But what a defendant does or fails to do may indicate intent or lack of intent to commit an offense.

You may consider it reasonable to draw the inference and find that a person intends the natural and probable consequences of acts knowingly done, but you are not required to do so. As I have said, it is entirely up to you to decide what facts to find from the evidence.


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.


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 delivered to the court officer for destruction.


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.

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.

INSTRUCTION NO. _____ (Contd.)

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.


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 form to the jury room, and when you have completed your deliberations and each of you has agreed on the verdict, 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.

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