IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION



UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-75

vs.

FINAL JURY INSTRUCTIONS

MARCUS MALCOM THURMON,

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 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 a witness had an arrangement with the Government under which he received a benefit for providing information to the Government. You may give his testimony such weight as you think it deserves. Whether or not his information or testimony may have been influenced by receiving a benefit is for you to determine.

 

 

 

(CONTINUED)


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         You have heard evidence that a witness could receive a reduced sentence in a criminal case in return for her cooperation with the prosecution in this case. The witness has entered into an “agreement” with the U.S. Attorney’s Office that provide that if the witness gives substantial assistance to the government in its investigation of crimes, the prosecutor could file a motion for a reduction of 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 her 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 her hope of receiving a reduced sentence is for you to decide.


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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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         You have heard a certain category of evidence called “other acts” evidence. Here, you have heard evidence of defendant’s prior convictions and his distribution of controlled substances. You may not use this “other acts” evidence to decide whether the defendant carried out the acts involved in the crime charged in the Indictment

         Remember, even if you find that the defendant may have committed similar acts, this is not evidence that he committed such an act in this case. You may not convict a person simply because you believe he may have committed similar acts. The defendant is on trial only for the crime charged.


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

         The tape recordings were accompanied by typed transcripts. You were permitted to view the transcripts for the limited purpose of helping you follow the conversations as you listened to the tape recordings, and also to help you keep track of the speakers. The transcripts, however, are not evidence. A tape 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 hear on the tape recording. 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 witness has testified that he viewed a photograph of the defendant Marcus Thurmon which was shown to him by the police. The police collect pictures of many people from many different sources and for many different purposes. The fact that the police had the defendant's picture does not mean that he committed this or any other crime, and the fact the police had defendant’s picture must have no effect on your consideration of the case.


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         The value of identification testimony depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

         In evaluating such testimony you should consider all of the factors mentioned in these instructions concerning your assessment of the credibility of any witness, and you should also consider, in particular, whether the witness had an adequate opportunity to observe the person in question at the time of the offense. You may consider, in that regard, such matters as the length of time the witness had to observe the person in question, the prevailing conditions at that time in terms of visibility or distance and the like, and whether the witness had known or observed the person at earlier times.

         In general, a witness uses his or her senses to make an identification. Usually the witness identifies an offender by the sense of sight -- but this is not necessarily so, and other senses may be used.

         You should also consider whether the identification made by the witness after the offense was the product of his own recollection. You may consider, in that regard, the strength of the identification, and the circumstances under which the identification was made, and the length of time that elapsed between the occurrence of the crime and the next opportunity the witness had to see defendant.

         You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.

         If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care.

(CONTINUED)


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         The Government has the burden of proving identity beyond a reasonable doubt. It is not essential that the witness be free from doubt as to the correctness of the identification. However you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may find him guilty. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

 


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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 consists of one charged offense:

         Count 1 charges that on or about March 27, 2002, the defendant did knowingly and intentionally distribute approximately 27.41 grams of a mixture or substance containing a detectable amount of cocaine base (commonly called “crack cocaine”), a Schedule II controlled substance.

         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.

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


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         The crime of distributing cocaine base (commonly called “crack cocaine”) as charged in the Indictment has two essential elements which are:

One, the defendant intentionally transferred cocaine base (commonly called “crack cocaine”) to another person; and

 

Two, at the time of the transfer, the defendant knew that it was cocaine base (commonly called “crack cocaine”).


         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 distributing cocaine base; otherwise you must find the defendant not guilty of this crime.


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         The offense charged in Count 1 involves the “distribution” and “delivery” of a controlled substance. The term “distribute” means to deliver a controlled substance to the actual or constructive possession of another person. The term “deliver” means the actual, constructive, or attempted transfer of a controlled substance to the actual or constructive possession of another person. It is not necessary that money or anything of value change hands. The law prohibits “distribution” of a controlled substance; the government does not have to prove that there was a “sale” of a controlled substance to establish distribution or intent to distribute.

 


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         You are instructed as a matter of law that cocaine base (commonly called “crack cocaine”) is a Schedule II controlled substance. You must ascertain whether or not the substance in question was cocaine base. In so doing, you may consider all the evidence in the case which may aid in the determination of that issue.

         In determining whether the defendant is guilty of distribution of cocaine base (commonly called “crack cocaine”), as charged in Count 1, 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.

         If you find the defendant guilty under Count 1, you must then determine the amount of cocaine base involved. You will make the quantity determination only if you find the defendant guilty of the crime of distribution of cocaine base.

 


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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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         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 answer to the Verdict Form must be the unanimous decision 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 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 03-75

vs.

VERDICT FORM

MARCUS MALCOM THURMON,

Defendant.

____________________

 

         We, the Jury, find the defendant, Marcus Thurmon,______________of the crime of Guilty/Not Guilty   

distributing a mixture or substance containing a detectable amount of cocaine base (commonly called “crack cocaine”) as charged in Count 1 of the Indictment.

 

DRUG QUANTITY DETERMINATION

          In the event you found the defendant guilty of Count 1, what quantity of cocaine base (commonly called “crack cocaine”) do you find was involved in the offense:

_____ at least 5 grams of a mixture or substance containing a detectable amount of cocaine base (commonly called “crack cocaine”)

 

_____ less than 5 grams of a mixture or substance containing a detectable amount of cocaine base (commonly called “crack cocaine”)

 

                                                             __________________________________

                                                             FOREPERSON

                                                             __________________________________

                                                             DATE