IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-3042

vs.

FINAL JURY INSTRUCTIONS

ALLAN DIMARCO,

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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         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.


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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 Angela Malfero was paid while providing assistance to the Government. Her testimony was received in evidence and may be considered by you. You may give her testimony such weight as you think it deserves. Whether or not her information or testimony may have been influenced by such payments is for you to determine.

         You have heard evidence that Sherri Herrerra had an arrangement with the Government under which she received a reduction on her state criminal charges and a more lenient sentence on those charges for providing testimony to the Government. Her testimony was received in evidence and may be considered by you. You may give her testimony such weight as you think it deserves. Whether or not her information or testimony may have been influenced by receiving a reduction on her state criminal charges and a more lenient sentence on those charges is for you to determine.


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         In this case, the defendant did not testify. No inference of guilt can be drawn from this. The defendant is not required to testify. The burden of proof remains upon the government to prove the guilt of the defendant.


INSTRUCTION NUMBER _____

 

         You have heard a certain category of evidence called “other acts” evidence. Here, you have heard evidence of defendant’s other convictions for drug offenses and his possession of marijuana. You may not use this “other acts” evidence to decide whether the defendant carried out the acts involved in the crimes charged in the Indictment. In order to consider “other acts” evidence at all, you must first unanimously find beyond a reasonable doubt, based on the rest of the evidence introduced, that the defendant carried out the acts involved in the crimes charged in the Indictment. If you make that finding, then you may consider the “other acts” evidence to decide intent, motive and knowledge. “Other acts” evidence must be proven by a preponderance of the evidence; that is, you must find that the evidence is more likely true than not true. This is a lower standard than proof beyond a reasonable doubt. If you find that this evidence is proven by a preponderance of the evidence, you should give it the weight and value you believe it is entitled to receive. If you find that it is not proven by a preponderance of the evidence, then you shall disregard such evidence.

         Remember, even if you find that the defendant may have committed similar acts, 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. The defendant is on trial only for the crimes charged, and you may consider the evidence of other acts only on the issue of defendant’s intent, motive, and knowledge.

 


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         You have heard testimony from persons described as experts. Persons who, by knowledge, skill, training, education or experience, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinion.

         Expert testimony should be considered just like any other testimony. You may accept or reject it, and give it as much as weight as you think it deserves, considering the witness’s education and experience, the soundness of the reasons given for the opinion, the acceptability of the methods used, and all the other evidence in the case.


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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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         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 Indictment in this case charges the defendant with five separate crimes. Under Count 1, the Indictment charges that the defendant committed the crime of conspiracy to distribute methamphetamine. Under Counts 5, 7, and 12, the Indictment charges that the defendant committed the crime of distributing methamphetamine on three separate occasions. Under Count 13, the Indictment charges that the defendant committed the crime of possessing methamphetamine with the intent to distribute it. The defendant has pleaded not guilty to each of the charges.

         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 the defendant to prove that he 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.


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

One, that between about October 2002 and continuing through at February 20, 2003, 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;

 

Three, that at the time the defendant joined in the agreement or understanding, he knew the purpose of the agreement or understanding was to commit the offense of distribution of methamphetamine; and

 

Four, the agreement involved 50 grams or more of a mixture or substance

                  containing a detectable amount of methamphetamine.


         If all of the essential elements have been proved beyond a reasonable doubt as to the defendant, then you must find the defendant guilty of the crime charged under Count 1; otherwise you must find the defendant not guilty of this crime.

 


INSTRUCTION NUMBER _____

 

         If your verdict under Instruction No. ___ under Count 1 is not guilty, or if, after all reasonable efforts, you are unable to reach a verdict on Instruction No. ___, you should record that decision on the verdict form and go on to consider whether the defendant is guilty of the crime of conspiring to distribute a mixture or substance containing a detectable amount of methamphetamine. The crime of conspiring to distribute a mixture or substance containing a detectable amount of methamphetamine has three essential elements, which are:

         One,  that between about October 2002 and continuing through at least February 20, 2003, 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 was to commit the offense of distribution of methamphetamine.

         For you to find the defendant guilty of this crime, a lesser included offense, under Count 1, the Government must prove all of these essential elements beyond a reasonable doubt; otherwise you must find the defendant not guilty of this crime, a lesser included offense, under Count 1.

 


INSTRUCTION NUMBER _____

 

         The quantity of controlled substances involved in the agreement or understanding includes the controlled substances the defendant distributed or agreed to distribute. The quantity also includes the controlled substances fellow conspirators distributed or agreed to distribute, if you find that those distributions or agreements to distribute were a necessary or natural consequence of the agreement or understanding and were reasonably foreseeable by the defendant.

         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 No. ___.

         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.


INSTRUCTION NUMBER _____

 

         The Government must prove that the defendant reached an agreement or understanding with at least one other person. It makes no difference whether that 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 has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

 

(CONTINUED)


INSTRUCTION NUMBER _____ (Cont’d.)

 

         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. If you find that the alleged conspiracy did exist, you must also decide whether the defendant voluntarily and intentionally joined the conspiracy, either at the time it was first formed or at some later time while it was still in effect. In making that decision, you must consider only evidence of the defendant’s own actions and statements. You may not consider actions and pretrial statements of others.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.


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         The crime of distributing methamphetamine, as charged in Counts 5, 7 and 12 of the Indictment, has two essential elements, which are:

         One,  on or about the date alleged in the Indictment [Count 5, December 18, 2002; Count 7, January 8, 2003; and Count 12, February 14, 2003], the defendant intentionally transferred methamphetamine to Angela Malfero, a person then cooperating with law enforcement officers; and

 

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

         In determining whether the defendant is guilty of distribution of methamphetamine, as charged in Counts 5, 7, and 12, 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 all of the essential elements have been proved beyond a reasonable doubt as to the defendant for the count under consideration, then you must find the defendant guilty of the crime charged under the Count under consideration; otherwise you must find the defendant not guilty of the crimes charged under the Count under consideration.


INSTRUCTION NUMBER _____

 

         The crime of possession of methamphetamine with the intent to distribute, as charged in Count 13 of the Indictment, has four essential elements, which are:

         One,  on or about February 20, 2003, the defendant was in possession of methamphetamine;

 

         Two,  the defendant that knew he was in possession of the methamphetamine; and

 

Three, the defendant intended to distribute some or all of the methamphetamine to another person; and

 

Four, the amount defendant possessed with the intent to distribute was 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine.


         If all of the essential elements have been proved beyond a reasonable doubt as to the defendant, then you must find the defendant guilty of the crime charged under Count 13; otherwise you must find the defendant not guilty of this crime.

 


INSTRUCTION NUMBER _____

 

         If your verdict under Instruction No. ___ under Count 13 is not guilty, or if, after all reasonable efforts, you are unable to reach a verdict on Instruction No. ___, you should record that decision on the verdict form and go on to consider whether the defendant is guilty of the crime of possessing with the intent to distribute less than 50 grams of a mixture or substance containing a detectable amount of methamphetamine. The crime of possessing with the intent to distribute less than 50 grams of a mixture or substance containing a detectable amount of methamphetamine has three essential elements, which are:

         One,  on or about February 20, 2003, the defendant was in possession of methamphetamine;

 

         Two,  the defendant that knew he was in possession of the methamphetamine; and

 

Three, the defendant intended to distribute some or all of the methamphetamine to another person.

 

         For you to find the defendant guilty of this crime, a lesser included offense, under Count 13 the Government must prove all of these essential elements beyond a reasonable doubt; otherwise you must find the defendant not guilty of this crime, a lesser included offense, under Count 13


INSTRUCTION NUMBER _____

 

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

 


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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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         You will note 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 by the Indictment.


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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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         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.


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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)


INSTRUCTION NUMBER (Cont’d.)

 

         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 five Verdict Forms. The Verdict Form is simply the written notice of the decision that you reach in this case. The answer to each Verdict Form must be the unanimous decision of the jury.

         You will take these Verdict Forms to the jury room, and when you have completed your deliberations and each of you has agreed on an answer to each Verdict Form, your foreperson will fill out each 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


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION

 

 

UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-3042

vs.

VERDICT FORM - COUNT 1

ALLAN DIMARCO,

Defendant.

____________________

         We, the Jury, find the defendant, Allan Dimarco,______________of the crime of Guilty/Not Guilty     

conspiracy to distribute methamphetamine as charged in Count 1 of the Indictment.

                                                             __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE

 

          Note: If you unanimously find the defendant guilty of the above crime, have your foreperson write “guilty” in the above blank space, and sign this verdict form.

          If you unanimously find the defendant not guilty of the above charge, have your foreperson write “not guilty” in the above blank space. You must then consider whether the defendant is guilty of conspiring to distribute a mixture or substance containing a detectable amount of methamphetamine on the following verdict form.

          If you are unable to reach a unanimous decision on the above charge, leave the space blank and decide whether the defendant is guilty of conspiring to distribute a mixture or substance containing a detectable amount of methamphetamine on the following verdict form.

 

LESSER INCLUDED OFFENSE OF COUNT 1

          We, the Jury, find the defendant, Allan Dimarco,______________of the crime of Guilty/Not Guilty     

conspiracy to distribute a mixture or substance containing a detectable amount of methamphetamine as charged in Count 1 of the Indictment.

                                                             __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE

 


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION

 

 

UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-3042

vs.

VERDICT FORM - COUNT 5

ALLAN DIMARCO,

Defendant.

____________________

 

          We, the Jury, find the defendant, Allan Dimarco,______________of the Guilty/Not Guilty

crime of distributing methamphetamine on or about December 18, 2002, as charged in Count 5 of the Indictment.                        __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE

 


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION

 

 

UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-3042

vs.

VERDICT FORM - COUNT 7

ALLAN DIMARCO,

Defendant.

____________________

 

          We, the Jury, find the defendant, Allan Dimarco,______________of the Guilty/Not Guilty

crime of distributing methamphetamine on or about January 8, 2003, as charged in Count 7 of the Indictment.

                                                             __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE

 


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION

 

 

UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-3042

vs.

VERDICT FORM - COUNT 12

ALLAN DIMARCO,

Defendant.

____________________

 

          We, the Jury, find the defendant, Allan Dimarco,______________of the Guilty/Not Guilty

crime of distributing methamphetamine on or about February 14, 2003, as charged in Count 12 of the Indictment.

                                                             __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE

 


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION

 

 

UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-3042

vs.

VERDICT FORM - COUNT 13

ALLAN DIMARCO,

Defendant.

____________________

 

          We, the Jury, find the defendant, Allan Dimarco,______________of the Guilty/Not Guilty

crime of possessing methamphetamine with the intent to distribute it as charged in Count 13 of the Indictment.                                __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE

          Note: If you unanimously find the defendant guilty of the above crime, have your foreperson write “guilty” in the above blank space, and sign this verdict form.

          If you unanimously find the defendant not guilty of the above charge, have your foreperson write “not guilty” in the above blank space. You must then consider whether the defendant is guilty of possessing with the intent to distribute a mixture or substance containing a detectable amount of methamphetamine on the following verdict form.

          If you are unable to reach a unanimous decision on the above charge, leave the space blank and decide whether the defendant is guilty of possessing with the intent to distribute a mixture or substance containing a detectable amount of methamphetamine on the following verdict form.

 

LESSER INCLUDED OFFENSE OF COUNT 13

          We, the Jury, find the defendant, Allan Dimarco,______________of the crime of Guilty/Not Guilty     

possessing with the intent to distribute less than 50 grams of a mixture or substance containing a detectable amount of methamphetamine as charged in Count 13 of the Indictment.

                                                             __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE