IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION



UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-0048

vs.

FINAL JURY INSTRUCTIONS

TRAVIS ZIESMAN,

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.

 


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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, the witness’ use of controlled substances during the events testified to, 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 certain witnesses 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.(CONTINUED)


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         You have heard evidence that certain witnesses have received a promise from the Government that the witness’ testimony will not be used against the witness in a criminal case. The witness’ testimony was received in evidence and may be considered by you. You may give the witness’ testimony such weight as you think it deserves. Whether or not the witness’ testimony may have been influenced by the Government's promise is for you to determine.

         You have heard evidence that certain witnesses were convicted of a crime. You may use that evidence only to help you decide whether to believe the witness and how much weight to give the witness’ testimony.

         You have heard testimony from witnesses who stated that he or she participated in the crime charged against the defendant. His or her testimony was received in evidence and may be considered by you. You may give his or her testimony such weight as you think it deserves. Whether or not his or her testimony may have been influenced by his or her desire to please the Government or to strike a good bargain with the Government about his or her own situation is for you to determine.

         You have heard evidence that certain witnesses each had an arrangement with the Government under which the witness received a benefit for providing information to the Government. The witness’ testimony was received in evidence and may be considered by you. You may give the witness’ testimony such weight as you think it deserves. Whether or not the witness’ information or testimony may have been influenced by receiving a benefit is for you to determine.

 


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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 two different crimes. Under Count 1, the Indictment charges that the defendant committed the crime of manufacturing and aiding and abetting the manufacturing of methamphetamine. Under Count 2, the Indictment charges that the defendant committed the crime of making a false statement to a law enforcement officer. 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 the defendant to prove that he is innocent.


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         The crime of manufacturing methamphetamine as charged in Count 1 of the Indictment has two essential elements, which are:

One, from about January 2003 through May 29, 2003, the defendant manufactured methamphetamine; and

 

Two, the defendant knew that he was, or intended to be, manufacturing a controlled substance.

 

         If all of the essential elements have been proved beyond a reasonable doubt, 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 under Count 1.

 

 

 


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

         In order to have aided and abetted the manufacturing of methamphetamine a person must:

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

(2) have knowingly acted in some way for the purpose of aiding the commission of manufacturing of methamphetamine.

         For you to find the defendant guilty of manufacturing methamphetamine by reason of aiding and abetting, the Government must prove beyond a reasonable doubt that all of the essential elements of manufacturing methamphetamine 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.


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         The crime of making a false material statement in a matter within the jurisdiction of a governmental agency, as charged in Count 2 of the Indictment, has three essential elements, which are:

One, the defendant knowingly, voluntarily and intentionally made a false statement in an interview with a Special Agent of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), within the Department of Justice, a department of the United States government;


         Two, the statement was material to the ATF; and

 

Three, the interview of the defendant was a matter within the jurisdiction of the ATF. You may find this element has been satisfied if you find that the ATF’s function includes interviewing people cooperating with the ATF in criminal investigations.

 

         A statement is “false,” if untrue when made, and then known to be untrue by the person making it or causing it to be made.

         A statement is “material,” if it has a natural tendency to influence, or is capable of influencing, the decision of the agency. However, whether a statement is “material” does not depend on whether the agency was actually deceived.

         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 2 of the Indictment; otherwise you must find the defendant not guilty of this crime.

 

 


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         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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         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)


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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 two 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

CEDAR RAPIDS DIVISION

 

 

UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-0048

vs.

VERDICT FORM - COUNT 1

TRAVIS ZIESMAN,

Defendant.

____________________

 

 

         We, the Jury, find the defendant, Travis Ziesman,______________of the crime of Guilty/Not Guilty 

manufacturing or aiding and abetting the manufacturing of methamphetamine as charged in Count 1 of the Indictment.

                                                                 __________________________________

                                                                 FOREPERSON

                                                                 __________________________________

                                                                 DATE


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION

 

 

UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-0048

vs.

VERDICT FORM - COUNT 2

TRAVIS ZIESMAN,

Defendant.

____________________

 

 

         We, the Jury, find the defendant, Travis Ziesman,______________of the Guilty/Not Guilty 

crime of making a false statement to a law enforcement officer, as charged in Count 2 of the Indictment.                                             __________________________________

                                                                 FOREPERSON

                                                                 __________________________________

                                                                 DATE