IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION



UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-0016 LRR

vs.

FINAL JURY

                  INSTRUCTIONS

MISAEL ORTIZ,

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.

 


INSTRUCTION NUMBER 1

 

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


INSTRUCTION NUMBER 2

 

         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.


INSTRUCTION NUMBER 3

 

         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.

 


INSTRUCTION NUMBER 4

 

         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.

 


INSTRUCTION NUMBER 5

 

         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.

 

 


INSTRUCTION NUMBER 6

 

         You have heard testimony that Misael Ortiz made statements to Special Agent Cavanaugh, Detective Tecklenburg and Deputy Baldazo. It is for you to decide:

         First, whether the defendant made the statement; and

         Second, if so, how much weight you should give to it.

         In making these two decisions you should consider all of the evidence, including the circumstances under which the statement may have been made.


INSTRUCTION NUMBER 7

 

         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.

 


INSTRUCTION NUMBER 8

 

         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 that Jose Juan Gomez-Meza 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.

 

 

 

 

 

(CONTINUED)


INSTRUCTION NUMBER 8 (Cont’d.)

 

         You have heard evidence that Jose Juan Gomez-Meza 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 provide 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 sentence. 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.


INSTRUCTION NUMBER 9

 

         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.


INSTRUCTION NUMBER 10

 

         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.


INSTRUCTION NUMBER 11

 

         Count 1 of the Indictment charges that defendant MISAEL ORTIZ did combine, conspire, confederate and agree with another to distribute and possess with intent to distribute approximately 100 kilograms of marijuana, a Schedule I controlled substance, between about 2000 and February 2003.

         Count 3 of the Indictment charges that defendant MISAEL ORTIZ did knowingly and unlawfully possess with intent to distribute and aid and abet the possession with intent to distribute, approximately 115 pounds of marijuana, a Schedule I controlled substance, on or about February 27, 2003.

         The defendant has pleaded not guilty to each of these 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.


INSTRUCTION NUMBER 12

 

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

One, that between about 2000 and continuing through February 2003, two or more persons reached an agreement or came to an understanding to distribute marijuana;

 

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 that the purpose of the agreement or understanding was to commit the offense of distribution of a controlled substance.

 

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


INSTRUCTION NUMBER 13

 

         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 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.

 

 

(CONTINUED)

 

 

INSTRUCTION NUMBER   13 (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. In determining whether the defendant under consideration by you became a member of the conspiracy 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.

         Acts and statements which are made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other defendant.

 

 

 


INSTRUCTION NUMBER 14

 

         The crime of possession with intent to distribute a controlled substance, as charged in Count 3 of the Indictment, has three essential elements, which are:

         One, the defendant was in possession of a controlled substance;

Two, the defendant knew that he was in possession of a controlled substance, to wit: marijuana; and

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

         For you to find the defendant guilty of this crime, the government must prove each of these elements beyond a reasonable doubt; otherwise, you must find the defendant not guilty.


INSTRUCTION NUMBER 15

 

         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.


INSTRUCTION NUMBER 16

 

         A person may also be found guilty of possessing with intent to distribute a controlled substance as charged in Count 3 even if he personally did not do every act constituting the offense charged, if he aided and abetted the commission of distribution of a controlled substance.

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

One, have known distribution of a controlled substance was being committed or going to be committed; and

Two, have knowingly acted in some way for the purpose of causing, encouraging, or aiding the commission of the distribution of the controlled substance; and

         Three, have intended to distribute a controlled substance.

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

         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 become an aider and abettor. A person who has no knowledge that a crime is being committed or about to be committed, but who happens to act in a way which advances some offense, does not thereby become an aider and abettor.


INSTRUCTION NUMBER 17

 

         You will note 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 by the indictment.


INSTRUCTION NUMBER 18

 

         An act is done “knowingly” if the defendant realized what she 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.

 


INSTRUCTION NUMBER 19

 

         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.


INSTRUCTION NUMBER 20

 

          You are instructed that the term “distribute” means to deliver a controlled substance to the possession of another person. The term “deliver” means the actual or attempted transfer of a controlled substance to the possession of another person. No consideration for the delivery need exist, and it is not necessary that money or anything of value change hands. The law is directed at the act of distribution of a controlled substance and does not concern itself with any need for a “sale” to occur.


INSTRUCTION NUMBER 21

 

          You are instructed as a matter of law that marijuana is a Schedule I controlled substance. You must ascertain whether or not the substances in question in this case contained marijuana. In ascertaining whether the substances in question were in fact marijuana, you may consider all the evidence in the case which may aid the determination of that issue.

          In determining whether the defendant is guilty of the conspiracy or distribution as charged in Counts 1 and 3, 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. However, if you find the defendant guilty of either offense, you will be asked a special interrogatory about the quantity of marijuana involved in each offense. The burden of proof is on the government to establish the quantity beyond a reasonable doubt.

          You are instructed that a kilogram is approximately 2.2 pounds, 50 kilograms is approximately 110 pounds, and 100 kilograms is approximately 220 pounds.


INSTRUCTION NUMBER 22

 

          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.

 


INSTRUCTION NUMBER 23

 

          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. Remember that you should not tell anyone – including me – how your votes stand numerically.

 

(CONTINUED)

 


INSTRUCTION NUMBER 23 (Cont’d.)

          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.

 


INSTRUCTION NUMBER 24

 

          Attached to these instructions you will find two Verdict Forms. The Verdict Forms are simply the written notice of the decision that you reach in this case. The answers to the Verdict Forms 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 answers to the Verdict Forms, your foreperson will fill out the Forms, sign and date them, 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

CEDAR RAPIDS DIVISION

 

UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-0016 LRR

vs.

VERDICT FORM

             

MISAEL ORTIZ,

Defendant.

____________________

COUNT 1We, the Jury, find the defendant, MISAEL ORTIZ,_________________of Count 1.

Guilty/Not Guilty

 

DRUG QUANTITY DETERMINATIONIn the event you found defendant guilty of Count 1, what quantity of marijuana do you find was involved in the offense:

          _____ 100 kilograms or more of marijuana

          _____ 50 kilograms or more but less than 100 kilograms of marijuana

          _____ Less than 50 kilograms of marijuana

 

                                                             __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION

 

UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-0016 LRR

vs.

VERDICT FORM

             

MISAEL ORTIZ,

Defendant.

____________________

 

COUNT 3

We, the Jury, find the defendant, MISAEL ORTIZ,_________________of Count 3.

Guilty/Not Guilty

 

DRUG QUANTITY DETERMINATION

          In the event you found defendant guilty of Count 3, what quantity of marijuana do you find was involved in the offense:

 

          _____ 50 kilograms or more but less than 100 kilograms of marijuana

          _____ Less than 50 kilograms of marijuana

 

                                                             __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE