IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

EASTERN DUBUQUE DIVISION



UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 04-1008

vs.

FINAL JURY INSTRUCTIONS

RONALD GREVE,

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, the documents and other things received as exhibits and stipulations, that is, agreements between the parties that certain facts are as they have stated.

         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 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’s 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’s present testimony.

         You have heard evidence that Bert Carner was convicted of crimes. A conviction of a crime is a factor you may consider in deciding whether to believe a witness and how much weight to give the witness’s testimony.

         You have heard evidence that Bert Carner had an arrangement with the State of Iowa that he would receive benefits for providing information to the United States. The witness’s testimony was received in evidence and may be considered by you. You may give the witness’s testimony such weight as you think it deserves. Whether or not a witness’s information or testimony may have been influenced by such a benefit 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.

 


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         The government and the defendant have stipulated – that is, they have agreed – that certain facts are as they have stated. You must therefore treat those facts as having been proved.

 

 

 

 


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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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         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 opinions.

         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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         You have heard testimony that the defendant made statements to law enforcement officers. It is for you to decide:

         First, whether the defendant made the statements, and

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

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


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         You have heard audio recordings of conversations. These conversations were legally recorded, and you may consider the recordings just like any other evidence.

         The recordings were accompanied by typed transcripts. The transcripts also undertook to identify the speakers engaged in the conversation. You were permitted to view the transcripts for the limited purpose of helping you follow the conversations as you listened to the audio recordings, and also to help you keep track of the speakers. The transcripts, however, are not evidence. An audio recording itself is the primary evidence of its own contents.

         You are specifically instructed that whether a transcript correctly or incorrectly reflects the conversation is entirely for you to decide based upon what you have heard here about the preparation of the transcript and upon your own examination of the transcript in relation to what you heard on the recordings. If you decide that a transcript is in any respect incorrect or unreliable, you should disregard it to that extent.

         Differences in meaning between what you heard in the recordings and read in the transcripts may be caused by such things as the inflection of the speaker’s voice. You should, therefore, rely on what you heard rather than what you read when there is a difference.

 


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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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         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.

         There is no burden upon the defendant to prove that he is innocent.


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         The Indictment in this case charges the defendant with one crime.

         Count 1 charges that between about 2001 and December 2002, the defendant did knowingly and unlawfully combine, conspire, confederate and agree with others known and unknown to the Grand Jury to commit two separate offenses against the United States:

(1)Knowing and intentional distribution of 500 grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance; and

 

(2)Knowing and intentional use of a communication facility, that is, a telephone, in causing and facilitating the commission of acts constituting a felony under the Controlled Substances Act, to wit: conspiracy to distribute cocaine, charged in Object 1 of Count 1 of the Indictment.

 

         The defendant has pled not guilty to the crime with which he is charged.


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

One, beginning in about 2001 and continuing through December 2002, two or more persons reached an agreement or came to an understanding to (1) distribute cocaine; and/or (2) use the telephone to facilitate drug offenses;

 

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.

 

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

         To assist you in deciding whether there was an agreement or understanding to commit the crime of distributing a controlled substance, you are advised that the elements of this crime are set out in Instruction Number . To assist you in deciding whether there was an agreement or understanding to commit the crime of using a communication facility to facilitate a drug offense, you are advised that the elements of that crime are set out in Instruction Number .

 

(CONTINUED)


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         Keep in mind that Count 1 of the Indictment charges a conspiracy to commit the charged offenses and does not require the government to prove that the crime of distribution of cocaine or the use of a communication facility to facilitate a drug offense was actually committed.

         Also keep in mind that the Indictment charges that the conspiracy involved in Count 1 had two objectives, that is, that the defendants conspired to commit two separate crimes or offenses: (1) distribution of cocaine; and (2) use of a communication facility to facilitate a drug offense. You are instructed that, under Count 1, it is not necessary for the government to prove a conspiracy to commit both offenses. It would be sufficient if the government proves, beyond a reasonable doubt, a conspiracy to commit one of the offenses. However, in that event, in order to return a verdict of guilty, you must unanimously agree upon which one or more of the offenses was the object of the conspiracy.


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         The crime of distribution of cocaine, as charged in Object 1 of the conspiracy under Count 1, has two essential elements, which are:

         One, the defendant intentionally transferred cocaine to another person; and

         Two, at the time of the transfer, the defendant knew that it was a controlled substance.

         The crime of use of a communication facility to facilitate the commission of a controlled substance offense, as charged in Object 2 of the conspiracy under Count 1, has two essential elements, which are:

         One, the defendant knowingly used a “communication facility”; and

         Two, the defendant did so with the intent to facilitate the commission of the offense of conspiracy to distribute cocaine.

         The term “communication facility” includes a telephone.

         Keep in mind that the Indictment charges (1) a conspiracy to commit the distribution of cocaine and not that the distribution of cocaine was committed; and (2) a conspiracy to use a communication facility to cause and facilitate a drug offense and not that use of a communication facility was committed.

 


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         In considering whether the government has met its burden of proving conspiracy, as charged in Count 1, you are instructed as follows:

         The government must prove that the defendant reached an agreement or understanding with at least one other person. The “other person” cannot be any law enforcement officer. 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)

 


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         You must decide, after considering all of the evidence, whether the conspiracy alleged in Count 1 of the Indictment existed. 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, except to the extent that pretrial statements of others describe something that had been said or done by the 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.


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         The quantity of controlled substances involved in the agreement or understanding includes the controlled substances the defendant possessed for personal use or 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.


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         The government is not required to prove that the conspiracy existed during the entire period of time alleged in the Indictment, or that the defendant was a member of the conspiracy for the entire period of time alleged in the Indictment. What the evidence must show is that a conspiracy existed, and that the defendant joined in the conspiracy at some time during the period alleged in the Indictment.

 


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

         In determining whether the defendant is guilty of distributing cocaine, the government is not required to prove 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 or detectable amount of the controlled substance.

         If you find the defendant guilty under Count 1, you are being asked to make a quantity determination in Interrogatory 1. You will make a quantity determination only if you find the defendant guilty of the crime of conspiracy to distribute cocaine, as charged in Count 1. Your verdict as to the amount of cocaine proven must also be unanimous.

         For your information, one ounce equals 28.35 grams, one pound equals 453.6 grams, and one kilogram contains 1,000 grams.


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         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.


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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 a Verdict Form. The Verdict Form is simply the written notice of the decisions that you reach in this case. The answers to the Verdict Form must be the unanimous decisions of the jury.

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

EASTERN DUBUQUE DIVISION

 

 

UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 04-1008

vs.

VERDICT FORM - COUNT 1

RONALD GREVE,

Defendant.

____________________

 

OBJECT 1: CONSPIRACY TO DISTRIBUTE COCAINE

         We, the Jury, find the defendant, Ronald Greve,______________of the       Guilty/Not Guilty

crime of conspiracy to distribute cocaine as charged in Object 1 of Count 1 of the Indictment.

 

                                                             __________________________________

                                                             FOREPERSON

 

                                                             __________________________________

                                                             DATE

 

          If you found the defendant not guilty of conspiracy to distribute cocaine as charged in Object 1 of the conspiracy, do not consider the following interrogatory. Proceed to consider Object 2.

 

(CONTINUED)

 


INTERROGATORY NUMBER 1

          If you found the defendant guilty of conspiracy to distribute cocaine as charged in Object 1 of Count 1, place a checkmark (√) next to the quantity of the mixture or substance containing a detectable amount of cocaine for which you unanimously find the defendant is responsible:

at least 500 grams, but less than 2 kilograms, of cocaine

at least 400 grams, but less than 500 grams, of cocaine

at least 300 grams, but less than 400 grams, of cocaine

at least 200 grams, but less than 300 grams, of cocaine

at least 100 grams, but less than 200 grams, of cocaine

at least 50 grams, but less than 100 grams, of cocaine

at least 25 grams, but less than 50 grams, of cocaine

less than 25 grams of cocaine

                                                             __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE

 

OBJECT 2: CONSPIRACY TO USE A COMMUNICATION FACILITY TO FACILITATE DISTRIBUTION OF CONTROLLED SUBSTANCES

 

          We, the Jury, find the defendant, Ronald Greve,______________of the       Guilty/Not Guilty

crime of conspiracy to use a communication facility to facilitate a conspiracy to distribute cocaine as charged in Object 2 of Count 1 of the Indictment.

                                                             __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE