IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION


UNITED STATES OF AMERICA,


                     Plaintiff,


          vs.


ANN VICTORIA ELLEFSON,


                     Defendant.


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No. CR 03-37

FINAL JURY INSTRUCTIONS





          Ladies and Gentlemen of the Jury:

          The instructions I gave you at the beginning of the trial and during the trial remain in effect. I will now give you some additional instructions.

           You must, of course, continue to follow the instructions I gave you earlier, as well as those I give you now. You must not single out some instructions and ignore others, because all are important. This is true even though some of those I gave you at the beginning of and during trial are not repeated here.

          The instructions I am about to give you now are in writing and will be available to you in the jury room. I emphasize, however, that this does not mean they are more important than my earlier instructions. Again, all instructions, whenever given and whether in writing or not, must be followed.

         


INSTRUCTION NUMBER ______

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

























 










 


INSTRUCTION NUMBER _______

          Neither in these instructions nor in any ruling, action, or remark that I have made during this trial have I intended to give any opinion or suggestion as to what the facts are or what your verdict should be.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 


INSTRUCTION NUMBER ________

          It is your duty to find from the evidence what the facts are. You will then apply the law, as I give it to you, to those facts. You must follow my instructions on the law, even if you thought the law was different or should be different. Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you.

 

 

 

 

 

 

 

 

 

 

 

 

 


 


INSTRUCTION NUMBER ______

          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:

          l. 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. Anything you saw or heard about this case outside the courtroom is not evidence.


          


INSTRUCTION NUMBER _______


          There are two types of evidence from which a jury may properly find the truth as to the facts of a case. One is direct evidence. Direct evidence is the evidence of the witness to a fact or facts of which they have knowledge by means of their senses. The other is circumstantial evidence--the proof of a chain of circumstances pointing to the existence or nonexistence of certain facts. The law makes no distinction between direct and circumstantial evidence. You should give all evidence the weight and value you believe it is entitled to receive.

 

 

 

 

 

 

 

 

 

 



 


INSTRUCTION NUMBER ______

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


INSTRUCTION NUMBER ______

           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.

 

 


 


 INSTRUCTION NO.

          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 have been 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 their testimony.

          You have heard that certain witnesses may receive benefits from the government in connection with their testimony and information in this case. When an informant is testifying for personal gain or advantage rather than for an independent law enforcement purpose, you may consider whether the witness is biased and whether his testimony is reliable. You may give testimony such weight as you feel it deserves whether or not the witness’ testimony may have been influenced by the benefit sought is for you to decide.

 

 

 


 INSTRUCTION NO. (Cont’d.)

          You have heard evidence that (person's name redacted) could receive a reduced sentence on criminal charges pending against him in return for his cooperation with the prosecution in this case. The witness has entered into a “plea agreement” with the U.S. Attorney’s Office that provides that if the witness gives substantial assistance to the government in its investigation of federal crimes, the prosecutor could file a motion for a reduction of his sentence. If the prosecutor’s office handling (person's name redacted) case believes he has given substantial assistance, the prosecutor can file in the court in which the charges are pending against him a motion to reduce his sentence. The judge has no power to reduce a sentence unless the prosecutor files such a motion. If such a motion for reduction of sentence for substantial assistance is filed by the prosecutor, then it is up to the judge to decide whether to reduce the sentence at all, and if so, how much to reduce it. You may give the testimony of the witness such weight as you think it deserves. Whether or not the testimony of the witness may have been influenced by his hope of receiving a reduced sentence is for you to decide.


INSTRUCTION NUMBER _____

          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 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 other evidence in the case.


INSTRUCTION NUMBER ______

          There is no burden upon a defendant to prove that she is innocent. Accordingly, the fact that a defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.

 


INSTRUCTION NUMBER ______

          Exhibits have been admitted into evidence and are to be considered along with all the other evidence to assist you in reaching a verdict. You are not to tamper with the exhibits or their contents, and each exhibit should be returned into open court, along with your verdict, in the same condition as it was received by you.

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 


INSTRUCTION NUMBER ______

          A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

 

 

 

 

 

 

 

 

 

 

 

 

 



INSTRUCTION NUMBER _____

          Under Count 1, the Indictment charges that defendant, ANN VICTORIA ELLEFSON, did knowingly and intentionally distribute and aid and abet the distribution of 2,887 pseudoephedrine pills, a list I chemical, on about September 18, 2002, knowing and having reasonable cause to believe that the pseudoephedrine would be used to manufacture methamphetamine, a Schedule II controlled substance.

          Under Count 2, the Indictment charges that defendant, ANN VICTORIA ELLEFSON, did knowingly and intentionally possess with intent to distribute, and aid and abet the possession with intent to distribute, approximately 260.5 grams of cocaine, a Schedule II controlled substance, on about December 2, 2002.

          Under Count 3, the Indictment charges that defendant, ANN VICTORIA ELLEFSON, did knowingly and intentionally possess methamphetamine, a Schedule II controlled substance, and marijuana, a Schedule I controlled substance, on about December 2, 2002.

          The defendant has pleaded not guilty to each of those 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 her. 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.


INSTRUCTION NUMBER _____The crime of distributing a list I chemical, as charged in Count 1 of the indictment, has three essential elements, which are:

                     One, that on or about September 18, 2002, the defendant intentionally transferred pseudoephedrine, a list I chemical;

 

                     Two, at the time of the transfer, the defendant knew it was pseudoephedrine; and

 

                     Three, the defendant knew or had reasonable cause to believe that the pseudoephedrine would be used to manufacture methamphetamine.


          For you to find the defendant guilty of this crime, the government must prove each of these elements beyond a reasonable doubt; otherwise, you must find the defendant not guilty of Count 1.





 

 

 

 

 

 

 

 

 


INSTRUCTION NUMBER ______

          The crime of possession with intent to distribute a controlled substance, as charged in Count 2 of the indictment, has three essential elements, which are:

                     One, that on or about December 2, 2002, the defendant was in possession of cocaine, a controlled substance;

 

                     Two, the defendant knew that she was in possession of cocaine; and

 

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


          For you to find the defendant guilty of this crime, the government must prove each of these elements beyond a reasonable doubt; otherwise, you must find the defendant not guilty of Count 2.

 

 

 

 

 

 

 

 

 


INSTRUCTION NUMBER _____A person may also be found guilty of distributing a listed chemical as charged in Count 1 or possessing a controlled substance with intent to distribute as charged in Count 2 even if she personally did not do every act constituting the offenses charged, if she aided and abetted the distribution of a listed chemical or aided and abetted the possession of a controlled substance.

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

(1) have known crime was being committed or going to be committed; and

 

(2) have knowingly acted in some way for the purpose of causing, encouraging, or aiding the commission of the crime.


          For you to find the defendant guilty by reason of aiding and abetting, the Government must prove beyond a reasonable doubt that all of the essential elements of distributing a listed chemical or possessing cocaine with intent to distribute were committed by some person or persons and that the defendant aided and abetted the commission of that crime.

          You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has become an aider and abettor. A person who has no knowledge that a crime is being committed or about to be committed, but who happens to act in a way which advances some offense, does not thereby become an aider and abettor.

 

 


INSTRUCTION NUMBER ______The crime of possession of a controlled substance, as charged in Count 3 of the indictment, has two essential elements, which are:

                     One, that on or about December 2, 2002, the defendant was in possession of marijuana and/or methamphetamine, controlled substances; and

 

                     Two, the defendant knew that she was in possession of marijuana and/or methamphetamine.


          For you to find the defendant guilty of this crime, the government must prove each of these elements beyond a reasonable doubt; otherwise, you must find the defendant not guilty of Count 3.

 

 


INSTRUCTION NUMBER ______

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 


INSTRUCTION NUMBER ______An act is done "knowingly" if a defendant realized what she was doing and did not act through ignorance, mistake or accident. You may consider the evidence of a defendant's acts and words, along with all the other evidence, in deciding whether a defendant acted knowingly.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 


INSTRUCTION NUMBER ______

          Intent may be proven by circumstantial evidence. It rarely can be established by other means. While witnesses may see or hear and thus be able to give direct evidence of what a person does or fails to do, there can be no eyewitness account of the state of mind with which the acts were done or omitted. But what a defendant does or fails to do may indicate intent or lack of intent to commit an offense.

           You may consider it reasonable to draw the inference and find that a person intends the natural and probable consequences of acts knowingly done, but you are not required to do so. As I have said, it is entirely up to you to decide what facts to find from the evidence.

 

 

 

 

 

 

 

 

 

 

 


 


INSTRUCTION NUMBER _____

          You are instructed that the term "distribute" means to deliver a listed chemical or controlled substance to the possession of another person. The term "deliver" means the actual or attempted transfer of a listed chemical or 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 listed chemical or a controlled substance and does not concern itself with any need for a "sale" to occur.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


INSTRUCTION NUMBER _____

          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, has both the power and intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.

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

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

 

 

 

 

 

 

 

 

 


INSTRUCTION NUMBER _____

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

          In determining whether the defendant is guilty of the charges contained in Counts 1 and 2, the government is not required to prove that the amount or quantity of the listed chemical or 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 listed chemical or controlled substance.



INSTRUCTION NUMBER ______

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

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

 

 

 

 

 

 

 

 

 

 

 

 


INSTRUCTION NUMBER _____

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

           Fourth, if you need to communicate with me during your deliberations, you may send a note to me through the marshal or court security officer, signed by one or more jurors. I will respond as soon as possible either in writing or orally in open court.

(CONTINUED)

 


INSTRUCTION NUMBER _____ (Continued)

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.

 

 

 

 


 

 

 

 

 

 

 

 


INSTRUCTION NUMBER _____

          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 form to the jury room, and when you have completed your deliberations and each of you has agreed on the verdict, your foreperson will fill in 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 

                                                                           UNITED STATES DISTRICT COURT

 

 

 

 

 

 


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION


UNITED STATES OF AMERICA,


                     Plaintiff,


          vs.


ANN VICTORIA ELLEFSON,

                     Defendant.


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No. CR 03-37








VERDICT FORM

COUNT 1

          As to the charge of distribution and aiding and abetting the distribution of pseudoephedrine, a list I chemical, on September 18, 2002, knowing and having reasonable cause to believe that the pseudoephedrine would be used to manufacture methamphetamine, a Schedule II controlled substance:

          We, the Jury, find Defendant, ANN VICTORIA ELLEFSON ________________.

                                                                                                           guilty / not guilty

 

COUNT 2

          As to the charge of possession and aiding and abetting the possession of cocaine, a Schedule II controlled substance, with intent to distribute on December 2, 2002:

          We, the Jury, find Defendant, ANN VICTORIA ELLEFSON ________________.

                                                                                                           guilty / not guilty

 


COUNT 3

          (a) As to the charge of possession of methamphetamine, a Schedule II controlled substance, on December 2, 2002:

          We, the Jury, find Defendant, ANN VICTORIA ELLEFSON ________________.

                                                                                                           guilty / not guilty

 

          (b) As to the charge of possession of marijuana, a Schedule I controlled substance, on December 2, 2002:

          We, the Jury, find Defendant, ANN VICTORIA ELLEFSON ________________.

                                                                                                           guilty / not guilty

 

                                                                                                                          

                                                                FOREPERSON

                                                                ______________________________

                                                                DATE