IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

EASTERN DIVISION



UNITED STATES OF AMERICA,
Plaintiff, No. CR 95-2014-MWB
vs. PRELIMINARY INSTRUCTIONS TO THE JURY
SCOTT E. HILDEBRAND,
Defendant.

____________________

TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - GENERAL

NO. 3 - OUTLINE OF TRIAL

NO. 4 - PRESUMPTION OF INNOCENCE

NO. 5 - REASONABLE DOUBT

NO. 6 - EQUALS IN COURT

NO. 7 - DEFINITION OF EVIDENCE

NO. 8 - TRANSCRIPTS OF RECORDED CONVERSATIONS

NO. 9 - CREDIBILITY OF WITNESSES

NO. 10 - BENCH CONFERENCES AND RECESSES

NO. 11 - OBJECTIONS

NO. 12 - NOTE TAKING

NO. 13 - CONDUCT OF THE JURY



PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS

Members of the jury, before you hear the opening statements, the court gives you these preliminary instructions to help you better understand what will be presented before you and how you should conduct yourself during the trial. You are to consider these instructions, together with any oral instructions given to you during the trial, and with the written instructions given at the end of the case, and apply them as a whole to the facts of the case. In considering the instructions, you will attach no importance or significance whatever to the order in which they are given.



PRELIMINARY INSTRUCTION NO. 2 - GENERAL

This is a criminal case brought by the United States of America against defendants Scott E. Hildebrand, Quentin E. Hildebrand, Joseph A. Mentlick, Jr., David I. Gardemann, Kenneth L. Kraklio, Allen K. Zurcher, Larry A. Webb, and Joan M. Webb. Only defendant Scott E. Hildebrand is on trial at this time. You should not guess about or concern yourselves with the reason that the other defendants are not on trial here. You are not to consider their absence from this trial when deciding if the government has proved, beyond a reasonable doubt, its case against Scott E. Hildebrand.

The United States of America has brought the following charges against Scott E. Hildebrand in an indictment. Count 1 of the indictment charges that the defendant committed the crime of conspiracy to commit mail fraud. Counts 2 through 42 of the indictment charge that the defendant committed specific crimes of mail fraud. Count 43 of the indictment charges that the defendant committed the crime of conspiracy to commit money laundering. Count 44 charges that up to $2,049,600.00 was involved in the money laundering conspiracy charged in Count 43 and that this money is thus forfeitable to the United States. You will only decide the question of forfeitability of the money under Count 44 if you find the defendant guilty on Count 43.

These charges are set forth in what is called an indictment. You should understand that an indictment is simply an accusation. It is not evidence of anything. Scott E. Hildebrand has pleaded not guilty, and is presumed to be innocent unless and until the government proves his guilt beyond a reasonable doubt.

It will be your duty to decide from the evidence whether defendant Scott E. Hildebrand is guilty or not guilty of the crimes charged against him. It is your duty to find from the evidence what the facts are. 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 which 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, and in that way 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.

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

Finally, please remember that only Scott E. Hildebrand, not anyone else, is on trial here, and that Scott E. Hildebrand is on trial only for the crimes charged against him, not for anything else.



PRELIMINARY INSTRUCTION NO. 3 - OUTLINE OF TRIAL

The trial will proceed in the following manner:

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

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

After presentation of evidence is completed, the court will instruct you further on the law. The attorneys will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. After that, I will provide some instructions on deliberations, and you will then retire to deliberate on your verdict.

After you render your verdict on the conspiracy to commit mail fraud, mail fraud, and conspiracy to commit money laundering charges, if you have found the defendant guilty on the money laundering charge, you will be given further instructions on the forfeiture charge. You will then retire for more deliberations and the rendering of a verdict on the forfeiture charge.



PRELIMINARY INSTRUCTION NO. 4 - PRESUMPTION OF INNOCENCE

Scott E. Hildebrand is presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion which might arise from the arrest or charge of Scott E. Hildebrand or the fact that he is here in court. The presumption of innocence remains with Scott E. Hildebrand throughout the trial and 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 the defendant.



PRELIMINARY INSTRUCTION NO. 5 - 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.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to the 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. The 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 the defendant has committed each and every element of any offense charged in the indictment against him, you must find the defendant not guilty of that offense.

However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.



PRELIMINARY INSTRUCTION NO. 6 - EQUALS IN COURT

The fact that this indictment is brought in the name of the United States of America does not entitle the prosecution to any greater consideration than any other litigant would get, but, by the same token, the United States is entitled to no less consideration. The issues in this case must be decided on the evidence and on the law. The parties, prosecution and defendant, stand alike as equals before you and this court. No party is entitled to sympathy or favor.



PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE

You shall base your verdict only upon the evidence and these and other instructions that I may give you during the trial.

Evidence is:

1. Testimony of witnesses.

2. Exhibits received by the court.

3. Stipulations, which are agreements between the parties.

4. Any other matter admitted into evidence.

Evidence may be direct or circumstantial. You should not be concerned with these terms since 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 the defendant. You should not give greater consideration to documents or exhibits than you give to any other evidence admitted in this case just because of their volume and number, or the fact that they are in written form.



PRELIMINARY INSTRUCTION NO. 8 - TRANSCRIPTS OF RECORDED CONVERSATIONS

You may hear audio- or see and hear video-recorded conversations as evidence in this case, and there are typewritten transcripts of certain of these recordings. Those transcripts also undertake to identify the speakers engaged in the conversations.

In some instances in this case, you will be permitted to have the transcript for the limited purpose of helping you follow the conversation as you listen to or watch the recording and also to help you identify the speakers. Unless the transcript is marked as an exhibit, however, it will not be introduced or accepted as evidence.

You are specifically instructed that whether a transcript correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you will hear about the preparation of the transcript, and upon your own examination of the transcript in relation to what you hear on the recording. The recording itself is the primary evidence of its own contents. If you decide that a transcript is in any respect incorrect or unreliable, you should disregard it to that extent.

Differences between what you hear in a recording and read in a transcript may be caused by such things as the inflection in a speaker's voice, or by inaccuracies in the transcript. You should, therefore, rely upon what you hear rather than what you read when there is a difference.



PRELIMINARY INSTRUCTION NO. 9 - 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, or only part of it, or none of it.

In deciding what testimony to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness'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 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.

Should the defendant testify, you should judge his testimony in the same manner in which you judge the testimony of any other witness.

Finally, the mere fact that a witness works in law enforcement or is employed by the government does not entitle such witness's testimony to more weight or credence than that of any other witness's testimony.



PRELIMINARY INSTRUCTION NO. 10 - 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 understand that 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, and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum.



PRELIMINARY INSTRUCTION NO. 11 - OBJECTIONS

From time to time during the trial I may be called upon to make rulings of law on objections or motions made by the lawyers. It is the duty of the lawyer for each party to object when another party offers testimony or other evidence the lawyer believes is not properly admissible. You should not show prejudice against a lawyer or the party the lawyer represents because the lawyer has made objections. You should 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. If I sustain an objection to a question that goes unanswered by the witness, you should not draw any inferences or conclusions from the question itself.



PRELIMINARY INSTRUCTION NO. 12 - 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 carefully consider 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 decision.



PRELIMINARY INSTRUCTION NO. 13 - 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 not only that you 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 2nd day of June, 1997.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE