IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

EASTERN DIVISION



UNITED STATES OF AMERICA, )

)

Plaintiff, ) No. CR 02-2026

)

vs. )

) FINAL JURY INSTRUCTIONS

ROBERT CLEVELAND, )

)

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.















INSTRUCTION NO.



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











































INSTRUCTION NO.



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 NO.



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 though 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 NO.



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 the facts that have been stipulated - that is, formally agreed to by the parties.

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, you were instructed that some evidence was received for a limited purpose only, and you must follow that instruction.



















INSTRUCTION NO.



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.











































INSTRUCTION NO.



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 testimony 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 various witnesses could receive a reduced sentence on criminal charges pending against the witness in return for the witness' 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. Some of the witnesses are subject to a mandatory minimum sentence, that is, a sentence that the law provides must be of certain minimum length. 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 statutory minimum and 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.











INSTRUCTION NO.



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 NO.



The Indictment in this case consists of one offense:

Count 1 charges that from between about 1997 and about 2001, the defendant, ROBERT CLEVELAND, did knowingly and unlawfully combine, conspire, confederate and agree, with others known and unknown to the grand jury, to commit the following offenses: (1) to manufacture and attempt to manufacture 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II Controlled Substance, and (2) to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance.

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

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

One, that between about 1997 and about 2001, two or more persons reached an agreement or came to an understanding to (1) manufacture or attempt to manufacture methamphetamine; or (2) to distribute methamphetamine.



Two, that 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 that the purpose of the agreement or understanding was to commit the offense of manufacture of

methamphetamine or distribution of methamphetamine.









INSTRUCTION NO. (Cont'd)



For you to find the defendant guilty of conspiracy, the United States must prove all of these essential elements beyond a reasonable doubt as to the defendant; otherwise, you must find the defendant not guilty under Count 1.

To assist you in deciding whether there was an agreement or understanding to commit the crime of manufacturing manufacture methamphetamine, you are advised that the elements of that crime are set forth in Instruction Number . To assist you in deciding whether there was an agreement or understanding to commit the crime of distribution of methamphetamine, you are advised that the elements of that crime are set forth in Instruction Number However, 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 crimes of manufacture of methamphetamine or distribution of methamphetamine were actually committed.

Also keep in mind that the Indictment charges that the conspiracy involved in Count 1 had two objectives, that is that the defendant conspired to commit two

separate crimes or offenses: (1) to manufacture 50 grams or more of methamphetamine and 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, and (2) to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine. 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



INSTRUCTION NO. (Cont'd.)

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.























































INSTRUCTION NO.



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

The government must prove that the defendant reached an agreement or understanding with at least one other person. 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 therefore 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



JURY INSTRUCTION (Cont'd.)

a minor role in the conspiracy, as long as that person had an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

In determining whether the alleged conspiracy existed, you may consider the actions and statements of all the alleged participants. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. In determining whether the defendant became a member of the conspiracy you may consider only the acts and statements of the defendant.



































INSTRUCTION NO.



The crime of manufacturing methamphetamine, charged as an objective of the conspiracy under Count 1, has two essential elements, which are:

One, an individual manufactured methamphetamine and

Two, an individual knowingly and intentionally manufactured the methamphetamine.



You are instructed that the term "manufacture" in this case means the production, preparation, compounding, or processing of methamphetamine, either directly or indirectly.

Keep in mind that the Indictment charges a conspiracy to manufacture methamphetamine and not that the manufacture of methamphetamine was actually accomplished or attempted.

























INSTRUCTION NO.



The crime of distributing methamphetamine, charged as an objective of the conspiracy under Count 1, has two essential elements, which are:

One, the transfer of methamphetamine to another person; and



Two, the transfer was made with the knowledge that the substance being transferred was methamphetamine.



Keep in mind that the Indictment charges a conspiracy to commit the distribution of methamphetamine and not that the distribution of methamphetamine was committed.





















































INSTRUCTION NO.



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, not only begins the trial with no evidence against him, but also with the presumption that he is innocent. The presumption of innocence alone is sufficient to find the defendant not guilty and can be overcome only if the United States proves, beyond a reasonable doubt, each essential element of a particular crime charged.

















































INSTRUCTION NO.



You are instructed as a matter of law that methamphetamine is a Schedule II controlled substance. You must ascertain whether or not the substance in question was methamphetamine. 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 conspiracy to manufacture and/or distribute methamphetamine, 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 of conspiracy to manufacture and/or distribute methamphetamine, you are being asked to make a quantity determination as explained in Instruction No. 20. You will make the quantity determination only if you find the defendant guilty of conspiracy to manufacture and/or distribute methamphetamine.





























INSTRUCTION NO.



The government need only prove a detectable amount of methamphetamine in order for you to find the defendant guilty provided you have found all the elements beyond a reasonable doubt.

If you find the defendant guilty beyond a reasonable doubt under Count 1, and you have found that one of the objects of the conspiracy was to manufacture methamphetamine, you will then be asked to determine whether the government has proved the amount of methamphetamine involved beyond a reasonable doubt.

If you find the defendant guilty under Count 1, you must then determine whether the amount of methamphetamine involved in that count was 50 grams or more of methamphetamine or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine.

If you find the government has failed to prove that the amount of

methamphetamine involved was 50 grams or more of methamphetamine or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, you must then determine whether the amount of methamphetamine involved was more than 50 grams of a mixture or substance containing a detectable

amount of methamphetamine but less than 500 grams of a mixture or substance containing a detectable amount of methamphetamine.





JURY INSTRUCTION NO. (Cont'd.)

For your information, one ounce contains about 28.35 grams, and one pound contains about 453.6 grams.

















































INSTRUCTION NO.



You will note that 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 in the Indictment.







































INSTRUCTION NO.



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.













































INSTRUCTION NO.



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 NO.



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 NO.



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 delivered to the court officer for destruction.









































INSTRUCTION NO.



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.





JURY INSTRUCTION NO.   (Cont'd.)

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.







































INSTRUCTION NO.

There is no burden upon a defendant to prove that he 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 NO.



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 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

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF IOWA