IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION



UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-2024

vs.

FINAL JURY INSTRUCTIONS

BILLY GENE HOWARD,

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, including the defendant, who has testified in this case. In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness said, or only part of it, or none of it.

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

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

 


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

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

         You have heard evidence that Eva Dawn Hanawalt, Percy Bruce, Robert Ramirez and Lawrence Fullie could each receive a reduced sentence in a criminal case in return for their cooperation with the prosecution in this case. The witnesses have entered into “plea agreements” 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 or her sentence. If the prosecutor’s office handling the witness’ case believes the witness has given substantial assistance, the prosecutor can file in the court in which the charges are pending against the witness a motion to reduce his or her sentence below the applicable federal sentencing guideline range. The judge has no power to reduce a sentence unless the prosecutor files such a motion. If such a motion for reduction of sentence for substantial assistance is filed by the prosecutor, then it is up to the judge to decide whether to reduce the sentence at all, and if so, how much to reduce it. You may give the testimony of the witness such weight as you think it deserves. Whether or not the testimony of the witness may have been influenced by his or her hope of receiving a reduced sentence is for you to decide.


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         You have heard evidence that the defendant Billy Gene Howard was previously convicted of crimes. You may use that evidence 1) to determine if the defendant has been convicted of a crime punishable by a term of imprisonment exceeding one year, an element of the offense charged in Count 1; and 2) to help you decide whether to believe his testimony and how much weight to give it.

 


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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 charges in this case are as follows:

         Count 1 of the Indictment charges that beginning on or about August 24, 2001, and continuing through about January 14, 2002, in the Northern District of Iowa and elsewhere, BILLY GENE HOWARD, having been convicted of one or more crimes punishable by imprisonment for a term exceeding one year, did knowingly receive and possess in and affecting commerce, one or more firearms, that is:

         1.      a Mossberg & Sons, Inc., Western Field, Model 150D, .410 caliber shotgun, bearing no serial number; and

 

         2.      an Industria Gaucha De Armes (IGA), Coachman, 20 gauge, double barrel side-by-side shotgun, bearing serial number 44024;

which had been shipped and transported in interstate commerce.

         Count 2 of the Indictment charges that beginning on or about August 24, 2001, and continuing through about January 14, 2002, in the Northern District of Iowa and elsewhere, BILLY GENE HOWARD, did knowingly receive, possess, conceal and store stolen firearms, which firearms had previously been transported in interstate commerce, that is:

         1.      a Mossberg & Sons, Inc., Western Field, Model 150D, .410 caliber shotgun, bearing no serial number; and

 

         2.      an Industria Gaucha De Armes (IGA), Coachman, 20 gauge, double barrel side-by-side shotgun, bearing serial number 44024;


knowing and having reasonable cause to believe the firearms were stolen.

 

 

(CONTINUED)

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         Count 3 of the Indictment charges that on or about January 14, 2002, in the Northern District of Iowa and elsewhere, BILLY GENE HOWARD, then being an unlawful user of methamphetamine, a controlled substance, did knowingly possess in and affecting commerce firearms, that is:

         1.      a Mossberg & Sons, Inc., Western Field, Model 150D, .410 caliber shotgun, bearing no serial number; and

 

         2.      an Industria Gaucha De Armes (IGA), Coachman, 20 gauge, double barrel side-by-side shotgun, bearing serial number 44024.

         The defendant has pled not guilty to each of these charges.


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

         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.


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         The crime of being a felon in possession of a firearm as charged in Count 1 of the Indictment has three essential elements, which are:

One, the defendant has been convicted of a crime punishable by a term of imprisonment exceeding one year;

 

Two, the defendant thereafter knowingly possessed a firearm; and

 

Three, the firearm was transported across a state line at some time during or before the defendant’s possession of the firearm.

 

         The term “firearm” means any weapon which will or is designed to or may be readily converted to expel a projectile by the action of an explosive.

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


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         The crime of possessing a stolen firearm as charged in Count 2 of the Indictment has four essential elements, which are:

One, the defendant knowingly possessed a firearm;


         Two, the firearm was stolen during or before the defendant’s possession of it;

 

Three, the defendant knew or had reasonable cause to believe that the firearm was stolen at the time he possessed it; and

 

Four, the firearm was transported across a state line at some time during or before the defendant’s possession of it.


           If all of these essential elements have been proved beyond a reasonable doubt as to the defendant, then you must find the defendant guilty of the crime charged in Count 2 of the Indictment; otherwise you must find the defendant not guilty as to that count.


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         The crime of being a drug user in possession of a firearm as charged in Count 3 of the Indictment has three essential elements, which are:

One, the defendant was an unlawful user of a controlled substance, that is, methamphetamine;


         Two, the defendant knowingly possessed a firearm; and

 

Three, the firearm was transported across a state line at some time during or before the defendant’s possession of it.

 The term “unlawful user of a controlled substance” means a person who uses a controlled substance in a manner other than as prescribed by a licensed physician. The defendant must have been actively engaged in use of a controlled substance during the period of time he possessed the firearm, but the law does not require that he used the controlled substance at the precise time he possessed the firearm. An inference that a person was or is a user of a controlled substance may be drawn from evidence of a pattern of use or possession of a controlled substance that reasonably covers the time the firearm was possessed.

         You are instructed as a matter of law that methamphetamine is a Schedule II controlled substance.

           If all of these essential elements have been proved beyond a reasonable doubt as to the defendant, then you must find the defendant guilty of the crime charged in Count 3 of the Indictment; otherwise you must find the defendant not guilty as to that count.

 


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         The defendant has presented evidence to show that he was not aware that the weapons were in the van before they were discovered by law enforcement. The defendant’s mere presence or proximity to the weapons is an insufficient basis to convict him.


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


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         The government and the defendant have stipulated – that is, they have agreed - that prior to the times alleged in the Superseding Indictment, the defendant had been convicted of at least one crime punishable by imprisonment for a term exceeding one year. You must therefore treat that fact as having been proved.

         The government and the defendant have also stipulated that the firearms in question were manufactured outside of the State of Iowa and traveled across a state line prior to arriving in the State of Iowa. You must therefore treat that fact as having been proved.


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

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

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

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

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


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

 


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

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

 


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

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

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

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

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

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

 

 

 

(CONTINUED)


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

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

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

 


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

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

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

 

 

 

 

                                                                 

__________                                                __________________________________

DATE                                                        LINDA R. READE

                                                                 JUDGE, U. S. DISTRICT COURT


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION

 

 

UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-2024

vs.

VERDICT FORM

BILLY GENE HOWARD,

Defendant.

____________________

 

COUNT 1

         We, the Jury, find the defendant, BILLY GENE HOWARD,______________of the Guilty/Not Guilty

crime of being a felon in possession of a firearm as charged in Count 1 of the Indictment.

 

 

                                                             __________________________________

                                                             FOREPERSON

 

COUNT 2

          We, the Jury, find the defendant, BILLY GENE HOWARD,______________of the Guilty/Not Guilty

crime of knowingly possessing stolen firearms as charged in Count 2 of the Indictment.

 

                                                             __________________________________

                                                             FOREPERSON

 

 

(CONTINUED)

 

COUNT 3

          We the Jury, find the defendant, BILLY GENE HOWARD,______________of the Guilty/Not Guilty

crime of being an unlawful user of methamphetamine in possession of firearms as charged in Count 3 of the Indictment.

 

                                                             __________________________________

                                                             FOREPERSON

 

                                                             __________________________________

                                                             DATE