UNITED STATES OF AMERICA,
ANTHONY DUANE BRATHWAITE,
No. CR 02-20
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 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:
l. 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.
There are two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct 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.
INSTRUCTION NUMBER 6
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.
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.
A reasonable doubt is 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.
Count One and Count Two of the Indictment each charge that the defendant committed the crime of witness tampering.
The defendant has pleaded not guilty to each of those 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 a 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.
The crime of tampering with a witness, as charged in Count 1 of the indictment, has two essential elements, which are:
One, the defendant knowingly attempted to corruptly persuade Jason Pins; and
Two, the defendant did so with intent to influence the testimony of Jason Pins in an official proceeding, i.e. the federal grand jury in the Northern District of Iowa.
For you to find the defendant guilty of the crime charged under Count 1, the government must prove all of these elements beyond a reasonable doubt; otherwise, you must find the defendant not guilty of this crime under Count 1.
The crime of tampering with a witness, as charged in Count 2 of the indictment, has two essential elements, which are:
One, the defendant knowingly attempted to corruptly persuade Jeffrey Kraus; and
Two, the defendant did so with intent to influence the testimony of Jeffrey Kraus in an official proceeding, i.e. the federal grand jury in the Northern District of Iowa.
For you to find the defendant guilty of the crime charged under Count 2, the government must prove all of these elements beyond a reasonable doubt; otherwise, you must find the defendant not guilty of this crime under Count 2.
Counts One and Two of the indictment charge an attempt to tamper with a witness. A person may be found guilty of an attempt if he intended to tamper with a witness and voluntarily and intentionally carried out some act which was a substantial step toward that tampering.
You heard evidence of an investigation concerning an alleged bank fraud, testimony about alleged false statements to the FBI, and testimony about a deposit of money from an allegedly illegal source. Anthony Brathwaite is not on trial for bank fraud or for allegedly making false statements to the FBI or for depositing money from an allegedly illegal source. With respect to the evidence of a bank fraud investigation, you are only to consider such evidence in that it explains the purpose for the FBI's interview of Anthony Brathwaite. You are not to speculate as to the bank fraud investigation's outcome. Anthony Brathwaite is on trial only for the charges in Count 1 and Count 2 and for no other charges.
INSTRUCTION NUMBER 14
Intent may be proven by circumstantial evidence. 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 prior to trial 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.
With regard to Instructions and :
You will note that the indictment charges that the offenses were committed on or about a certain date. 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.
INSTRUCTION NUMBER 17
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 security officer for destruction.
INSTRUCTION NUMBER 18
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 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 a 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 NUMBER 18 (Cont'd)
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 in 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.
LINDA R. READE, JUDGE
UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA, )
Plaintiff, ) No. CR 02-0020
ANTHONY DUANE BRATHWAITE, ) VERDICT FORM
We, the jury, find defendant Anthony Brathwaite _________________ of witness
tampering as charged in Count One of the indictment.
We, the jury, find defendant Anthony Brathwaite _________________ of witness
tampering as charged in Count Two of the indictment.