IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 97-4020-MWB

vs.



PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

EARL M. TREADWAY,
Defendant.

____________________





TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - STATEMENT OF THE CASE

NO. 3 - ELEMENTS OF THE OFFENSES CHARGED

NO. 4 - OUTLINE OF TRIAL

NO. 5 - PRESUMPTION OF INNOCENCE

NO. 6 - REASONABLE DOUBT

NO. 7 - DEFINITION OF EVIDENCE

NO. 8 - CREDIBILITY OF WITNESSES

NO. 9 - BENCH CONFERENCES AND RECESSES

NO. 10 - OBJECTIONS

NO. 11 - NOTE-TAKING

NO. 12 - CONDUCT OF THE JURY

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - DUTY OF JURORS

NO. 3 - NATURE OF AN INDICTMENT

NO. 4 - COUNT 1: BANK ROBBERY BY ASSAULT WITH A

DANGEROUS WEAPON

NO. 5 - "LESSER-INCLUDED OFFENSE" OF BANK ROBBERY

NO. 6 - COUNT 2: USING OR CARRYING A FIREARM

NO. 7 - AIDING AND ABETTING

NO. 8 - THEORY OF DEFENSE

NO. 9 - IMPEACHMENT AND TESTIMONY OF CERTAIN

WITNESSES

NO. 10 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF

NO. 11 - REASONABLE DOUBT

NO. 12 - DUTY TO DELIBERATE

NO. 13 - DUTY DURING DELIBERATIONS



VERDICT FORM



PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



Members of the jury, these preliminary instructions are given to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.

PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE



This is a criminal case brought by the United States of America against defendant Earl M. Treadway. In an indictment, the United States charges Mr. Treadway with two separate crimes arising from his alleged involvement in the robbery of the Midwest Community Credit Union in Sioux City, Iowa, on or about May 12, 1997. In Count 1, the United States charges Mr. Treadway with bank robbery by assault with a dangerous weapon. In Count 2, the United States charges Mr. Treadway with knowingly using or carrying a firearm during and in relation to a crime of violence. The United States also charges that Mr. Treadway aided and abetted the commission of each of these offenses, even if he did not personally commit them.

These charges are set forth in what is called an indictment. An indictment is simply an accusation. It is not evidence of anything. Earl M. Treadway has pleaded not guilty to the crimes charged against him; therefore, Mr. Treadway is presumed to be innocent unless and until the prosecution proves his guilt on a particular offense beyond a reasonable doubt.

Your duty is to decide from the evidence whether the defendant is not guilty or guilty of the crimes charged against him. You will find the facts from the evidence. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts that have been established by the evidence. You will then apply those facts to the law, which I will give you in these and in my other instructions, to reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

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. Do not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

Please remember that only Earl M. Treadway, not anyone else, is on trial here, and that Mr. Treadway is on trial only for the crimes charged against him, not for anything else.

Finally, keep in mind that the indictment charges Mr. Treadway with two separate offenses. Therefore, you must consider separately each count against Mr. Treadway, and return a separate verdict on each count.

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF THE

OFFENSES CHARGED



To help you follow the evidence, here is a brief summary of the elements of the two offenses charged against Mr. Treadway. In order for you to find Mr. Treadway guilty on a particular count, the prosecution must prove each of the essential elements of the offense charged in that count beyond a reasonable doubt against Mr. Treadway.



Count 1: Bank robbery by assault with a dangerous weapon

In Count 1 of the indictment, the United States charges that, on or about May 12, 1997, Mr. Treadway, and others, by force, violence, and intimidation did take from the person and presence of another approximately $16,000, belonging to and under the care of the Midwest Community Credit Union of Sioux City, Iowa, a state chartered credit union, the accounts of which were then insured by the National Credit Union Administration Board, and in committing such offense, the defendant did assault and put in jeopardy the life of another person by the use of a dangerous weapon, that is, a firearm. The crime of bank robbery by assault with a dangerous weapon has four essential elements, which are the following:

One, on or about May 12, 1997, the defendant took $16,000 from the presence of the people in the Midwest Community Credit Union, while that money was in the care or custody of the Midwest Community Credit Union;

Two, the defendant took the money by force, violence, or intimidation;

Three, the defendant assaulted Laura Buckstead or Michelle Holmes, or both, or put the life of Laura Buckstead or Michelle Holmes, or both, in jeopardy by use of a dangerous weapon while taking the money; and

Four, the deposits of the Midwest Community Credit Union were then insured by the National Credit Union Administration Board.



Count 2: Using or carrying a firearm during a crime of violence

In Count 2 of the indictment, the United States charges that, on or about May 12, 1997, the defendant knowingly used and carried a firearm during and in relation to a crime of violence, that is, the robbery of the Midwest Community Credit Union. The crime of using or carrying a firearm during a crime of violence has two essential elements, which are the following:

One, the defendant committed a robbery of the Midwest Community Credit Union; and

Two, during and in relation to the commission of that crime, the defendant knowingly used or carried a firearm.



Aiding and abetting

Each count of the indictment also charges that Mr. Treadway aided and abetted the offense charged. A defendant may also be found guilty of an offense, even if he did not personally do every act constituting that offense, if he aided and abetted the commission of the offense. "Aiding and abetting" means knowingly acting in some way for the purpose of causing, encouraging, or aiding the offense.



This is only a preliminary outline of the elements of the offenses charged in the indictment. At the end of the trial, I will give you final written instructions on the offenses charged. Because they are more detailed, those final instructions govern on the elements of the offenses with which Mr. Treadway is charged.

PRELIMINARY INSTRUCTION NO. 4 - OUTLINE OF TRIAL



The trial will proceed as follows:

After these preliminary instructions, the prosecutor may make an opening statement. Next, the lawyer for the defendant may, but does not have to, make an opening statement. An opening statement is not evidence. It is simply a summary of what the lawyer expects the evidence to be.

The prosecution will then present its evidence and call witnesses and the lawyer for the defendant may, but has no obligation to, cross-examine. Following the prosecution's case, the defendant may, but does not have to, present evidence and call witnesses. If the defendant calls witnesses, the prosecutor may cross-examine them.

After the evidence is concluded, I will give you most of the final instructions. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you the remaining final instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 5 - PRESUMPTION OF INNOCENCE



Earl M. Treadway is presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion that might arise from the arrest or charge of this defendant, or the fact that he is here in court. The presumption of innocence remains with the defendant throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to the defendant only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against him.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to the defendant to prove his innocence, for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. A defendant is not even obligated to produce any evidence by cross-examining the witnesses who are called to testify by the prosecution.

Unless the prosecution proves beyond a reasonable doubt that Mr. Treadway has committed each and every essential element of an offense charged in the indictment against him, you must find him not guilty of that offense. Keep in mind that you must give separate consideration to the evidence about each offense charged. You must treat each count separately and must return a separate verdict on each count.

PRELIMINARY INSTRUCTION NO. 6 - REASONABLE DOUBT



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 in the more serious and important transactions of life. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.



PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE



Your verdict must be based only on the evidence and these and other instructions that I may give you during the trial.

Evidence is:

1. Testimony in person.

2. Exhibits I admit into evidence.

3. Stipulations, which are agreements between the parties.

4. Any other matter I admit into evidence.

Evidence may be "direct" or "circumstantial." However, the law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

If you have exhibits to consider as evidence, in deciding whether and how to rely on such an exhibit, you should evaluate its contents and its relationship to the other evidence in the case. The fact that an exhibit may be given to you for your inspection does not mean that you must rely on it more than you rely on the testimony of the witnesses.

The following are not evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you saw or heard about this case outside the courtroom.

Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you if that occurs, and instruct you on the purposes for which the item can and cannot be used.

Also, the weight of the evidence is not determined by the number of witnesses testifying as to the existence or non-existence of any fact. Likewise, the weight of the evidence should not be determined by the number or volume of documents or exhibits introduced by either the prosecution or a defendant. Do not give greater consideration to documents or exhibits, because of their volume and number, or the fact that they are in written form, than you give to any other evidence admitted in this case.

If schedules, summaries, or charts are admitted into evidence, you may use those schedules, summaries, and charts as evidence, along with the underlying documents, which will also be admitted into evidence.

PRELIMINARY INSTRUCTION NO. 8 - CREDIBILITY OF WITNESSES



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 says, 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's 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 witness's drug or alcohol use or addiction, if any, 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 see or hear 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 a small detail.

If a defendant testifies, you should judge his or her testimony in the same manner in which you judge the testimony of any other witness.

You may hear evidence 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. You should consider expert testimony 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, and the acceptability of the methods used, and all of the other evidence in the case.

Finally, just because a witness works in law enforcement or is employed by the government does not mean you should give more weight or credence to such a witness's testimony than you give to any other witness's testimony.

PRELIMINARY INSTRUCTION NO. 9 - BENCH

CONFERENCES AND RECESSES



During the trial it may be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference here while the jury is present in the courtroom, or by calling a recess. Please be patient, because while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, to avoid confusion and error, and to save your valuable time. We will, of course, do what we can to keep the number and length of these conferences to a minimum.



PRELIMINARY INSTRUCTION NO. 10 - OBJECTIONS



The lawyers may make objections and motions during the trial that I must rule upon. If I sustain an objection to a question before it is answered, do not draw any inferences or conclusions from the question itself. Also, the lawyers have a duty to object to testimony or other evidence that they believe is not properly admissible. Do not hold it against a lawyer or the party the lawyer represents because the lawyer has made objections. Finally, do not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other.





PRELIMINARY INSTRUCTION NO. 11 - NOTE-TAKING



If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider carefully the evidence without taking notes. You should not be overly influenced by the notes.

You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your verdict.



PRELIMINARY INSTRUCTION NO. 12 - CONDUCT OF THE JURY



Finally, to insure fairness, you as jurors must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers, or witnesses involved in this case--you should not even pass the time of day with any of them. It is important that you not only do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. If there are news reports about this case, you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case you will know more about the matter than anyone will learn through the news media.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

Eighth, if at anytime during the trial you have a problem that you would like to bring to my attention, or if you feel ill or need to go to the restroom, please send a note to the Court Security Officer, who will deliver it to me. I want you to be comfortable, so please do not hesitate to inform me of any problem.

DATED this 5th day of June, 2000.





FINAL INSTRUCTION NO. 1 - INTRODUCTION



Members of the jury, the written instructions I gave you at the beginning of the trial and the oral instructions I gave you during the trial remain in effect. I now give you some additional instructions.

The instructions I am about to give you, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. All instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

In considering these instructions, the order in which they are given is not important.

FINAL INSTRUCTION NO. 2 - DUTY OF JURORS



Your duty is to decide from the evidence whether defendant Earl M. Treadway is not guilty or guilty of the crimes charged against him. You will find the facts from the evidence. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts that have been established by the evidence. You will then apply those facts to the law, which I give you in these and in my other instructions, to reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

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. Do not take anything I may have said or done during the trial or may say or do as indicating what I think of the evidence or what I think your verdict should be.

Please remember that only Earl M. Treadway, not anyone else, is on trial here, and that this defendant is on trial only for the crimes charged against him, not for anything else.

Also keep in mind that the indictment charges this defendant with two separate offenses. Therefore, you must consider each count separately and return a separate verdict on each count.

FINAL INSTRUCTION NO. 3 - NATURE OF AN INDICTMENT



The charges against this defendant are set forth in what is called an indictment. As I told you at the beginning of this trial, an indictment is simply an accusation. It is not evidence of anything. Earl M. Treadway has pleaded not guilty to the crimes charged against him, and he is therefore presumed to be innocent unless and until the prosecution proves his guilt on an offense charged beyond a reasonable doubt.

The indictment charges that the offenses were committed "on or about" a certain date. However, the prosecution does not have to prove with certainty the exact date of an offense charged. It is sufficient if the evidence establishes that an offense occurred within a reasonable time of the date alleged in the indictment.

In the indictment, the defendant is charged with more than one offense. Keep in mind that the prosecution does not have to prove all of the offenses against the defendant for you to find him guilty of an offense. Instead, you must consider separately each crime charged against the defendant and must return a separate verdict for each crime charged.

Your verdict on each charge must be unanimous.

FINAL INSTRUCTION NO. 4 - COUNT 1: BANK ROBBERY

BY ASSAULT WITH A DANGEROUS WEAPON





In Count I of the indictment, the United States charges that, on or about May 12, 1997, Mr. Treadway, and others, by force, violence, and intimidation did take from the person and presence of another approximately $16,000, belonging to and under the care of the Midwest Community Credit Union of Sioux City, Iowa, a state chartered credit union, the accounts of which were then insured by the National Credit Union Administration Board, and in committing such offense, the defendant did assault and put in jeopardy the life of another person by the use of a dangerous weapon, that is, a firearm. Count 1 of the indictment also charges Mr. Treadway with aiding and abetting the commission of this offense.

The prosecution must prove the following four essential elements beyond a reasonable doubt for you to find the defendant guilty of personally committing the crime of bank robbery by assault with a dangerous weapon:

One, on or about May 12, 1997, the defendant took $16,000 from the presence of the people in the Midwest Community Credit Union, while that money was in the care or custody of the Midwest Community Credit Union.

The federal "bank robbery" statute also applies to robbery of any credit union. For purposes of this statute, the term "credit union" means any federal credit union and any state-chartered credit union the accounts of which are insured by the National Credit Union Administration Board. A "state-chartered credit union" in turn includes a credit union chartered under the laws of a state or the United States.



Two, the defendant took the money by force, violence, or intimidation.

"Intimidation" means doing something that would make an ordinary person fear bodily harm. It is not necessary to prove that the alleged victim was actually frightened, nor is it necessary to show that the behavior of the defendant was so violent that it was likely to cause terror, panic, or hysteria. However, there would be no taking of money "by intimidation" if any fear resulted only from the alleged victim's own timidity rather than some intimidating conduct on the part of the defendant The essence of the offense is the taking of money aided and accompanied by intentional, intimidating behavior on the part of the defendant.



Three, the defendant assaulted Laura Buckstead or Michelle Holmes, or both, or put the life of Laura Buckstead or Michelle Holmes, or both, in jeopardy by use of a dangerous weapon while taking the money.

An "assault" occurs whenever one person makes an intentional attempt or threat to injure someone else, and that person also has an apparent, present ability to carry out the threat, such as by brandishing or pointing a dangerous weapon at the other. Thus, an "assault" may be committed without actually striking or injuring another person. In deciding whether an attempt or threat to injure someone was "intentional," you may consider the evidence of the defendant's words, acts, or omissions, along with all of the facts and circumstances in evidence that may aid you in determining the defendant's intent. You may, but are not required to, infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. An act is done "knowingly" if the defendant is aware of the act and does not act through ignorance, mistake, or accident.

To "put in jeopardy the life of any person" means to expose someone else to a risk of death, for example, by using a dangerous weapon.

A "dangerous weapon" includes anything capable of being readily operated or wielded by one person to inflict severe bodily harm or injury upon another person.



Four, the deposits of the Midwest Community Credit Union were then insured by the National Credit Union Administration Board.

If the prosecution has failed to prove each of these elements beyond a reasonable doubt, you must find defendant Earl M. Treadway not guilty of personally committing the crime of bank robbery by assault with a dangerous weapon.

However, the indictment also charges Earl M. Treadway with aiding and abetting this offense. Aiding and abetting bank robbery by assault with a dangerous weapon is explained to you in Final Jury Instruction No. 7.

FINAL INSTRUCTION NO. 5 - "LESSER-INCLUDED OFFENSE"

OF BANK ROBBERY





If your verdict on the charge of personally committing the offense of bank robbery by assault with a dangerous weapon, as explained in the previous Instruction, and "aiding and abetting" that offense, as explained in Final Jury Instruction No. 7, is not guilty, or if, after all reasonable efforts, you are unable to reach a verdict on that charge, you should record that decision on the verdict form and go on to consider whether Earl M. Treadway is guilty of the "lesser included offense" of bank robbery or "aiding and abetting" bank robbery, as explained in this instruction.

The indictment charges this "lesser-included offense" by alleging that, on or about May 12, 1997, Mr. Treadway, and others, by force, violence, and intimidation did take from the person and presence of another approximately $16,000, belonging to and under the care, custody, control, management, and possession of the Midwest Community Credit Union of Sioux City, Iowa, a state chartered credit union, the accounts of which were then insured by the National Credit Union Administration Board. The indictment also charges Mr. Treadway with aiding and abetting the commission of this "lesser-included offense."

The prosecution must prove the following three elements beyond a reasonable doubt for you to find the defendant guilty of personally committing the "lesser-included offense" of bank robbery:

One, on or about May 12, 1997, the defendant took $16,000 from the presence of the people in the Midwest Community Credit Union, while that money was in the care or custody of the Midwest Community Credit Union.

This element was explained to you in Final Jury Instruction No. 4.



Two, the defendant took the money by force, violence, or intimidation.

This element was also explained to you in Final Jury Instruction No. 4.



Three, the deposits of the Midwest Community Credit Union were then insured by the National Credit Union Administration Board.

Note that the third element of the offense of bank robbery by assault with a dangerous weapon, as stated in Final Jury Instruction No. 4, is not an element of the "lesser included offense" of bank robbery. If the prosecution has failed to prove each of the three elements of bank robbery beyond a reasonable doubt, you must find defendant Earl M. Treadway not guilty of personally committing the "lesser-included offense" of bank robbery.

However, the indictment also charges Earl M. Treadway with aiding and abetting this "lesser-included offense." Aiding and abetting bank robbery is explained to you in Final Jury Instruction No. 7.

FINAL INSTRUCTION NO. 6 - COUNT 2: USING OR

CARRYING A FIREARM





In Count 2 of the indictment, the United States charges that, on or about May 12, 1997, the defendant knowingly used and carried a firearm during and in relation to a crime of violence, that is, the robbery of the Midwest Community Credit Union. The prosecution must prove the following two elements beyond a reasonable doubt for you to find the defendant guilty of the crime of using or carrying a firearm during a crime of violence:

One, the defendant committed a robbery of the Midwest Community Credit Union.

In order to determine whether the crime of bank robbery by assault with a dangerous weapon has been established, you should refer to Final Jury Instruction No. 4. In order to determine whether the "lesser-included offense" of bank robbery has been established, you should refer to Final Jury Instruction No. 5.



Two, during and in relation to the commission of that crime, the defendant knowingly used or carried a firearm.

An act is done "knowingly" if the defendant is aware of the act and does not act through ignorance, mistake, or accident. In deciding whether an act is done "knowingly," you may consider the evidence of the defendant's words, acts, or omissions, along with all of the facts and circumstances in evidence that may aid you in determining the defendant's knowledge.

In order to establish this element, the prosecution does not have to prove that the firearm was both "used" and "carried." Rather, it is sufficient if the prosecution proves that the defendant either "used" or "carried" the firearm.

The term "used a firearm" means that the firearm was actively employed in the course of the commission of a crime of violence. You may find that a firearm was "used" during the commission of the crime in question here if you find that it was brandished, displayed, used to strike someone, used to threaten someone, aimed at someone's body, fired, attempted to be fired, or the defendant made references to a firearm that was in his possession.

The term "carried a firearm" means that, during the commission of the crime, the defendant had a firearm on or about his person or transported a firearm in the passenger compartment of a car.

The firearm was used or carried "in relation to" an offense if it had some purpose or effect with respect to a crime of violence; in other words, it was used or carried in a way that effectuated the crime. However, the firearm need not have a role as a weapon in the crime.



If the prosecution has failed to prove both of these essential elements beyond a reasonable doubt, you must find defendant Earl M. Treadway not guilty of personally committing the crime of using and carrying a firearm during or in relation to a crime of violence.

However, the indictment also charges Earl M. Treadway with aiding and abetting this offense. Aiding and abetting using and carrying a firearm is explained to you in Final Jury Instruction No. 7.

FINAL INSTRUCTION NO. 7 - AIDING AND ABETTING



The indictment charges that, even if Mr. Treadway did not personally commit the offenses charged, he aided and abetted the commission of those offenses. The defendant may also be found guilty of an offense even if he did not personally do every act constituting the offense charged, if he aided and abetted the commission of that offense. The elements of aiding and abetting are the following:

One, the aider and abettor knew that the crime charged was being committed or was going to be committed.

An act is done "knowingly" if the defendant is aware of the act and does not act through ignorance, mistake, or accident. In deciding whether an act is done "knowingly," you may consider the evidence of the defendant's words, acts, or omissions, along with all of the facts and circumstances in evidence that may aid you in determining the defendant's knowledge.

For you to find a defendant guilty of aiding and abetting one of the offenses charged, or a "lesser-included offense" of an offense charged, the prosecution must prove beyond a reasonable doubt that all of the essential elements of the offense charged or its "lesser-included offense" were committed by some person or persons. However, it is not necessary that the other person or persons be convicted or even identified.



Two, the aider and abettor knowingly acted in some way for the purpose of causing, encouraging, or aiding the commission of the crime charged.

"Knowledge" was defined for you in the explanation of the preceding element. 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 voluntarily aided and abetted the commission of an offense. 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 that advances some offense, does not thereby become criminally liable for that offense.



If the prosecution has failed to prove each of these elements beyond a reasonable doubt as to a particular offense, you must find Earl M. Treadway not guilty of aiding and abetting that offense.

In other words, you may not find Earl M. Treadway guilty of an offense charged in the indictment, or a "lesser-included offense," unless you find beyond a reasonable doubt that he committed every element of that offense or "lesser-included offense," as defined in these Instructions, or that every element of the offense or "lesser-included offense" was committed by some person or persons and that Earl M. Treadway voluntarily aided and abetted the commission of that crime.

FINAL INSTRUCTION NO. 8 - THEORY OF DEFENSE



In addition to denying the other elements of the charges, Mr. Treadway contends that he was not present at the time and place of the alleged crime. If, after considering all the evidence, you have a reasonable doubt that Mr. Treadway was present, and did not otherwise aid and abet an offense, then you must find him not guilty.

FINAL INSTRUCTION NO. 9 - IMPEACHMENT

AND TESTIMONY OF CERTAIN WITNESSES



In Preliminary Instruction No. 8, 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."

A witness may be discredited or impeached by contradictory evidence; by a showing that the witness testified falsely concerning a material matter; 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. If earlier statements of a witness were admitted into evidence, they were not admitted to prove that the contents of those statements were true. Instead, you may consider those earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness, and therefore whether they affect the credibility of that witness.

You have heard evidence that witnesses Robert Roche and Douglas Westeen made plea agreements with the prosecution and hope to receive reductions in their sentences in return for their cooperation with the prosecution in this case. The agreement each witness has entered into with the U.S. Attorney's Office provides that in return for the witness's "substantial assistance," the government may file a request for a reduction in that witness's sentence. The judge has no power to reduce a sentence for such a witness for substantial assistance unless the U.S. Attorney files a motion requesting such a reduction. If the motion for reduction of sentence for substantial assistance is filed by the U.S. Attorney, then it is up to the judge to decide whether to reduce the sentence of that witness at all, and if so, how much to reduce it. You should consider testimony of such witnesses with greater caution and care than that of other witnesses. However, their testimony was received in evidence and you may consider it. You may give the testimony of these witnesses such weight as you think it deserves. Whether or not the testimony of these witnesses may have been influenced by their hopes of receiving a reduction in sentence is for you to decide.

If you believe that a witness has been discredited or impeached, it is your exclusive right to give that witness's testimony whatever weight, if any, you think it deserves.



FINAL INSTRUCTION NO. 10 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF



Earl M. Treadway is presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion that might arise from the arrest or charge of Mr. Treadway or the fact that he is here in court. The presumption of innocence remains with Mr. Treadway throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to Mr. Treadway only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against him.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to any defendant, for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. Therefore, the fact that a defendant did not testify must not be discussed or considered by you in any way when deliberating and arriving at your verdict. A defendant is not even obligated to produce any evidence by cross-examining the witnesses who are called to testify by the prosecution.

Unless the prosecution proves beyond a reasonable doubt that Earl M. Treadway has committed each and every element of an offense charged in the indictment against him, you must find Earl M. Treadway not guilty of that offense.



FINAL INSTRUCTION NO. 11 - REASONABLE DOUBT



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 in the more serious and important transactions of life. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

FINAL INSTRUCTION NO. 12 - DUTY TO DELIBERATE



A verdict must represent the considered judgment of each juror. Your verdict must be unanimous. It is your duty to consult with one another and to deliberate with a view to reaching agreement if you can do so without violence to your individual judgment. Of course, you must not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinions of other jurors or for the mere purpose of returning a verdict. Each of you must decide the case for yourself; but you should do so only after consideration of the evidence with your fellow jurors.

In the course of your deliberations you should not hesitate to re-examine your own views, and to change your opinion if you are convinced it is wrong. To bring twelve minds to an unanimous result, you must examine the questions submitted to you openly and frankly, with proper regard for the opinions of others and with a willingness to re-examine your own views.

Remember that if, in your individual judgment, the evidence fails to establish a defendant's guilt beyond a reasonable doubt, then that defendant should have your vote for a not guilty verdict. If all of you reach the same conclusion, then the verdict of the jury must be not guilty. Of course, the opposite also applies. If, in your individual judgment, the evidence establishes a defendant's guilt beyond a reasonable doubt, then your vote should be for a verdict of guilty, and if all of you reach that conclusion, then the verdict of the jury must be guilty. As I instructed you earlier, the burden is upon the prosecution to prove beyond a reasonable doubt every essential element of the crime charged.

Finally, remember that you are not partisans; you are judges--judges of the facts. Your sole interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.

You may conduct your deliberations as you choose. However, I suggest that you carefully consider all of the evidence bearing upon the questions before you. You may take all the time that you feel is necessary.

There is no reason to think that another trial would be tried in a better way or that a more conscientious, impartial, or competent jury would be selected to hear it. Any future jury must be selected in the same manner and from the same source as you. If you should fail to agree on a verdict, the case is left open and must be disposed of at some later time.

FINAL INSTRUCTION NO. 13 - DUTY DURING DELIBERATIONS



There are certain rules you must follow while conducting your deliberations and returning your verdict:

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, if a defendant is guilty, the sentence to be imposed is my responsibility. You may not consider punishment of Earl M. Treadway in any way in deciding whether the prosecution has proved its case against them beyond a reasonable doubt.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the 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.

Fourth, your verdict must be based solely on the evidence and on the law in these instructions. The verdict, whether not guilty or 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.

Finally, the verdict form is attached to these instructions. The verdict form is simply the written notice of the decision you reach in this case. You will take this form to the jury room, and, when each of you has agreed on the verdicts, your foreperson will fill in the form and date it, you will all sign it, and your foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 14th day of June, 2000.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



UNITED STATES OF AMERICA,
Plaintiff,

No. CR 97-4020-MWB

vs.



VERDICT FORM

EARL M. TREADWAY,
Defendant.

____________________





As to the crimes charged in the indictment, we, the Jury, unanimously find defendant Earl M. Treadway not guilty or guilty as indicated below:





COUNT DESCRIPTION VERDICT
1 Bank robbery by assault with a dangerous weapon, as explained in Final Jury Instruction No. 4, or aiding and abetting bank robbery by assault with a dangerous weapon, as explained in Final Jury Instruction No. 7

___ Not guilty

___ Guilty

___ No Verdict

If guilty, on which basis do you find the defendant guilty of this offense?
Personally committing the offense, as explained in Final Jury Instruction No. 4 ______
Aiding and abetting commission of the offense, as explained in Final Jury Instruction No. 7



______
If your verdict on the offense of bank robbery by assault with a dangerous weapon was not guilty, or if you were unable to reach a verdict on that charge, under either the personal commission alternative explained in Final Jury Instruction No. 4, or the aiding and abetting alternative explained in Final Jury Instruction No. 7, what is your verdict on the "lesser-included offense" of bank robbery, as explained in Final Jury Instruction No. 5?





___ Not guilty

___ Guilty

If guilty, on which basis do you find the defendant guilty of this "lesser-included offense"?
Personally committing the offense, as explained in Final Jury Instruction No. 5 ______
Aiding and abetting commission of the offense, as explained in Final Jury Instruction No. 7



______
2 Using or carrying a firearm during a crime of violence, as explained in Final Jury Instruction No. 6 ___ Not guilty

___ Guilty

If guilty, on which basis do you find the defendant guilty?
Personally committing the offense, as explained in Final Jury Instruction No. 6 ______
Aiding and abetting commission of the offense, as explained in Final Jury Instruction No. 7



______






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