IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 99-0002-MWB

vs.



PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

JERMAINE HARRIS,
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 - TRANSCRIPT OF TAPE-RECORDED CONVERSATION

NO. 9 - CREDIBILITY OF WITNESSES

NO. 10 - BENCH CONFERENCES AND RECESSES

NO. 11 - OBJECTIONS

NO. 12 - NOTE-TAKING

NO. 13 - CONDUCT OF THE JURY

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - DUTY OF JURORS

NO. 3 - NATURE OF AN INDICTMENT

NO. 4 - "INTENT" AND "KNOWLEDGE"

NO. 5 - "POSSESSION," "DISTRIBUTION," AND "DELIVERY"

NO. 6 - COUNT I: DISTRIBUTION

NO. 7 - COUNT II: POSSESSION WITH INTENT TO DISTRIBUTE

NO. 8 - LESSER INCLUDED OFFENSE OF SIMPLE POSSESSION

NO. 9 - COUNT III: CONSPIRACY TO COMMIT DRUG OFFENSES

NO. 10 - EXPLANATION OF "AGREEMENT" FOR A CONSPIRACY

OFFENSE

NO. 11 - IMPEACHMENT AND TESTIMONY OF CERTAIN

WITNESSES

NO. 12 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF

NO. 13 - REASONABLE DOUBT

NO. 14 - DUTY TO DELIBERATE

NO. 15 - 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 Jermaine Harris. The United States charges Mr. Harris with three separate crimes: distribution of crack cocaine on or about February 12, 1997; possession of crack cocaine with intent to distribute it on or about April 1, 1997; and conspiracy to commit two separate drug offenses, distribution of crack cocaine and possession of crack cocaine with intent to distribute it, between about 1996 and 1997.

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

Therefore, your duty is to decide from the evidence whether Jermaine Harris is guilty or not 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 that 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 say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

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

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 three crimes charged.

Count I: Distribution

In Count I of the indictment, the United States charges that, on or about February 12, 1997, Mr. Harris knowingly and intentionally distributed approximately .25 grams of a mixture or substance containing a detectable amount of cocaine, which contained cocaine base, commonly called "crack cocaine." The prosecution must prove the following two elements beyond a reasonable doubt for you to find the defendant guilty of the crime of distribution of crack cocaine:

One, on or about February 12, 1997, the defendant intentionally distributed crack cocaine to another person; and

Two, at the time of the distribution, the defendant knew that what he was distributing was a controlled substance.



Count II: Possession With Intent To Distribute

In Count II of the indictment, the United States charges that, on or about April 1, 1997, Mr. Harris knowingly and intentionally possessed .86 grams of a mixture or substance containing a detectable amount of cocaine, which contained cocaine base, commonly called "crack cocaine," with intent to distribute it. The prosecution must prove each of the following three elements beyond a reasonable doubt for you to find the defendant guilty of the crime of possession of crack cocaine with intent to distribute it:

One, on or about April 1, 1997, the defendant was in possession of crack cocaine;

Two, the defendant knew that he was or intended to be in possession of crack cocaine; and

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



Count III: Conspiracy To Commit Drug Offenses

In Count III of the indictment, the United States charges that, between 1996 and 1997, Mr. Harris knowingly conspired with other persons to commit two separate drug offenses: distribution of crack cocaine and possession with intent to distribute crack cocaine. The conspiracy crime charged in this count allegedly involved 50 grams or more of a mixture or substance containing a detectable amount of cocaine, which contained cocaine base, commonly called "crack cocaine." The prosecution must prove each of the following three essential elements beyond a reasonable doubt for you to find the defendant guilty of this conspiracy offense:

One, between about 1996 and 1997, two or more persons reached an agreement or came to an understanding to commit a drug offense or drug offenses.

Two, the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect.

Three, at the time the defendant joined in the agreement or understanding, he knew the essential purpose of the agreement or understanding.



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



Jermaine Harris 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. Harris, 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, 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 the defendant has committed each and every essential element of an offense charged in the indictment against him, you must find the defendant not guilty of that offense.

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 the 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.

PRELIMINARY INSTRUCTION NO. 8 - TRANSCRIPT OF

TAPE-RECORDED CONVERSATION



You may hear one or more tape recordings accompanied by typed transcripts. The transcripts also undertake to identify the speakers engaged in the conversation. You are permitted to view the transcripts for the limited purpose of helping you follow the conversation as you listen to the tape recording, and also to help you keep track of the speakers. The transcripts, however, are not evidence. A tape recording itself is the primary evidence of its own contents.

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

Differences in meaning between what you hear in the recording and read in a transcript may be caused by such things as the inflection in a speaker's voice. You should, therefore, rely on 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, 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 the defendant testifies, you should judge his testimony in the same manner in which you judge the testimony of any other witness.

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. 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 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. 11 - 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. 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 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. 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 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 20th day of September, 1999.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE

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. I emphasize, however, that the final instructions are not more important than the preliminary ones, nor are written instructions more important than oral ones. 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 the defendant is guilty or not 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.

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

FINAL INSTRUCTION NO. 3 - NATURE OF AN INDICTMENT



In this case, the United States charges Jermaine Harris with three separate crimes: distribution of crack cocaine on or about February 12, 1997; possession of crack cocaine with intent to distribute it on or about April 1, 1997; and conspiracy to commit two separate drug offenses, distribution of crack cocaine and possession of crack cocaine with intent to distribute it, between about 1996 and 1997. 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. Jermaine Harris has pleaded not guilty to the crimes charged against him, and he is presumed to be innocent unless and until the prosecution proves his guilt on an offense beyond a reasonable doubt.

The indictment states that the offenses occurred "on or about" a certain date. 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 United States charges Mr. Harris with three separate crimes. Therefore, in reaching your verdict, consider each crime charged, and any defense to that charge, separately and independently. I will explain the elements of the crimes charged in more detail in the instructions that follow.

FINAL INSTRUCTION NO. 4 - "INTENT" AND "KNOWLEDGE"



"Intent" and "knowledge" are elements of the crimes charged in this case. "Intent" and "knowledge" may be proved like anything else. 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 in your determination of the defendant's intent or knowledge.

As to "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. The prosecution is not required to prove that the defendant knew that his acts or omissions were unlawful.

FINAL INSTRUCTION NO. 5 - "POSSESSION," "DISTRIBUTION,"

AND "DELIVERY"



The charges of in this case also involve "distribution" and "delivery" of a controlled substance. "Distribution" and "delivery" in turn involve "possession." The following definitions of these terms apply in these instructions:

The law recognizes several kinds of "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 the 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.

The term "distribute" means to deliver a controlled substance to the actual or constructive possession of another person. The term "deliver" means the actual, constructive, or attempted transfer of a controlled substance to the actual or constructive possession of another person. It is not necessary that money or anything of value change hands. The law prohibits the "distribution" of a controlled substance; the prosecution does not have to prove that there was a "sale" of a controlled substance.

FINAL INSTRUCTION NO. 6 - COUNT I: DISTRIBUTION





In Count I of the indictment, the United States charges that, on or about February 12, 1997, Mr. Harris knowingly and intentionally distributed approximately .25 grams of a mixture or substance containing a detectable amount of cocaine, which contained cocaine base, commonly called "crack cocaine." The prosecution must prove the following two elements beyond a reasonable doubt for you to find the defendant guilty of the crime of distribution of crack cocaine:

One, on or about February 12, 1997, the defendant intentionally distributed crack cocaine to another person.

"Intent" was defined for you in Final Instruction No. 4. "Distribution" and "delivery" were defined for you in Final Instruction No. 5. The prosecution does not have to prove the defendant distributed a particular amount or quantity of a controlled substance. It need only prove beyond a reasonable doubt that he distributed a detectable amount of a controlled substance. Crack cocaine is a Schedule II controlled substance. You must ascertain whether or not the substance in question did in fact contain crack cocaine. In so doing, you may consider all of the evidence in the case that may aid in the determination of that issue.



Two, at the time of the distribution, the defendant knew that what he was distributing was a controlled substance.

"Knowledge" was defined for you in Final Instruction No. 4. Additionally, the defendant need not know what the controlled substance is if he knows he is distributing some controlled substance.



If the prosecution has failed to prove these two elements beyond a reasonable doubt, you cannot find Jermaine Harris guilty of distribution of crack cocaine.

FINAL INSTRUCTION NO. 7 - COUNT II: POSSESSION WITH

INTENT TO DISTRIBUTE





In Count II of the indictment, the United States charges that, on or about April 1, 1997, Mr. Harris knowingly and intentionally possessed .86 grams of a mixture or substance containing a detectable amount of cocaine, which contained cocaine base, commonly called "crack cocaine," with intent to distribute it. The prosecution must prove each of the following three elements beyond a reasonable doubt for you to find the defendant guilty of the crime of possession of crack cocaine with intent to distribute it:

One, on or about April 1, 1997, the defendant was in possession of crack cocaine.

"Possession" was defined for you in Final Instruction No. 5. The prosecution does not have to prove the defendant possessed the amount or quantity of a controlled substance that was charged in the indictment. It need only prove beyond a reasonable doubt that he possessed a measurable amount of a controlled substance. Crack cocaine is a Schedule II controlled substance. You must ascertain whether or not the substance in question was in fact crack cocaine. In so doing, you may consider all evidence in the case that may aid the determination of that issue.



Two, the defendant knew that he was or intended to be in possession of crack cocaine.

"Intent" and "knowledge" were defined for you in Final Instruction No. 4. Additionally, the defendant need not know what the controlled substance is if he knows he has possession of some controlled substance.



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

Again, "intent" was defined for you in Final Instruction No. 4. The term "distribute" was defined for you in Final Instruction No. 5.



If the prosecution has failed to prove each of these elements beyond a reasonable doubt, you must find Jermaine Harris not guilty of the crime of possession of crack cocaine with intent to distribute it.

FINAL INSTRUCTION NO. 8 - LESSER INCLUDED OFFENSE

OF SIMPLE POSSESSION



If your verdict under Final Instruction No. 6 on the charge of possession with intent to distribute crack cocaine 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 Jermaine Harris is guilty of the "lesser included offense" of simple possession of crack cocaine under this instruction. The crime of simple possession of crack cocaine has two essential elements, each of which the prosecution must prove beyond a reasonable doubt for you to find the defendant guilty of this "lesser included offense":

One, on or about April 1, 1997, the defendant was in possession of crack cocaine.

This element was defined for you in Final Instruction No. 6, after the first element.



Two, the defendant knew that he was or intended to be in possession of crack cocaine.

This element was defined for you in Final Instruction No. 6, after the second element.



Note that the third element of the offense of possession with intent to distribute crack cocaine stated in Final Instruction No. 6 is not an element of the "lesser included offense" of simple possession of crack cocaine. If the prosecution has failed to prove each of the two essential elements of the crime of simple possession of crack cocaine beyond a reasonable doubt, you must find Jermaine Harris not guilty of this "lesser included offense."

FINAL INSTRUCTION NO. 9 - COUNT III: CONSPIRACY

TO COMMIT DRUG OFFENSES





In Count III of the indictment, the United States charges that, between 1996 and 1997, Mr. Harris knowingly conspired with other persons to commit two separate drug offenses: distribution of crack cocaine and possession with intent to distribute crack cocaine. The conspiracy crime charged in this count allegedly involved 50 grams or more of a mixture or substance containing a detectable amount of cocaine, which contained cocaine base, commonly called "crack cocaine." The prosecution must prove each of the following three essential elements beyond a reasonable doubt for you to find the defendant guilty of this conspiracy offense:

One, between about 1996 and 1997, two or more persons reached an agreement or came to an understanding to commit a drug offense or drug offenses.

Two, the defendant voluntarily and intentionally joined in the agreement or understanding, either at the time it was first reached or at some later time while it was still in effect.

Three, at the time the defendant joined in the agreement or understanding, he knew the essential purpose of the agreement or understanding.

If the prosecution has failed to prove all of these elements beyond a reasonable doubt against defendant Harris, you must find him not guilty of the offense of conspiracy to commit drug offenses.

Keep in mind that the indictment charges a conspiracy to distribute crack cocaine or to possess crack cocaine with intent to distribute it, not that the crimes of distribution or possession with intent to distribute were actually committed. The indictment charges a conspiracy to commit two separate crimes or offenses--distribution of crack cocaine and possession of crack cocaine with intent to distribute it. It is not necessary for the government to prove a conspiracy to commit both of those offenses. It would be sufficient if the government proves, beyond a reasonable doubt, a conspiracy to commit one of those offenses; however, in that event, in order to return a verdict of guilty, you must unanimously agree upon which of the offenses was the objective of the conspiracy--distribution, possession with intent to distribute, or both. If you cannot agree in that manner, you must find the defendant not guilty. To assist you in determining whether there was an agreement to commit drug offenses, you should consider the explanation of an "agreement" for a conspiracy offense in Final Jury Instruction No. 10, and the explanation of elements of the substantive drug offenses in Final Jury Instruction No. 6 (distribution) and Final Jury Instruction No. 7 (possession with intent).

Finally, if you find beyond a reasonable doubt that this conspiracy existed and that the defendant was one of its members, then you may consider acts knowingly done and statements knowingly made by the defendant's co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to the defendant, even though they were done or made in the absence of and without the knowledge of the defendant. This includes acts done or statements made before the defendant joined the conspiracy, for a person who knowingly, voluntarily, and intentionally joins an existing conspiracy is responsible for all of the conduct of the co-conspirators from the beginning of the conspiracy. However, acts and statements that were made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other person, including the defendant.

FINAL INSTRUCTION NO. 10 - EXPLANATION OF "AGREEMENT"

FOR A CONSPIRACY OFFENSE





The following is an explanation of the "agreement" element of a conspiracy charge:

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 a defendant, or named in the indictment, or otherwise charged with a crime. There is no requirement that the other conspirators be named as long as you find beyond a reasonable doubt that there were other co-conspirators.

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 thereby become a member.

However, a person may join in an agreement or understanding 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 a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it. However, the defendant must know of the existence of the conspiracy. Without such knowledge, the defendant cannot be guilty even if his acts furthered the conspiracy.

In determining whether the alleged agreement existed, you may consider the actions and statements of all of the alleged participants, whether they are charged as defendants or not. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. However, in determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant.

FINAL INSTRUCTION NO. 11 - IMPEACHMENT

AND TESTIMONY OF CERTAIN WITNESSES



In Preliminary Instruction No. 9, 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; 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's present testimony.

You have heard evidence that the following witnesses were convicted of one or more crimes: Nancy Jimmison, Robert Watkins, Wallace Maxwell, Shaune Hull, Robert Lewis, Andre Springfield, Steven Harris, Mona Harris, Delores Harris, and Frieda Harris. You may use evidence of a criminal conviction only to help you decide whether to believe the witness and how much weight to give his or her testimony.

You should consider certain testimony with greater caution and care than that of other witnesses:

1. You have heard evidence that Nancy Jimmison, Shaune Hull, Andre Springfield, Juanita Heald (Perkins), Delores Harris, and Frieda Harris used or were addicted to drugs. You should consider whether the testimony of these witnesses might have been affected by their drug use at the time of the events about which they testified.

2. You have heard evidence that Nancy Jimmison had an arrangement with the government under which she has received money or other benefits for providing information to the government. You may give the testimony of this witness such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by receiving money or some other benefit is for you to decide.

3. You have heard evidence that Robert Watkins, Wallace Maxwell, Shaune Hull, Robert Lewis, Juanita Heald (Perkins), and Andre Springfield have made plea agreements with the prosecution and hope to receive a reduction in sentence in return for their cooperation with the prosecution in this case. The agreement a 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 the 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 may give the testimony of these witnesses such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by a plea agreement or a witness's hope 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.

You have also heard testimony that defendant Jermaine Harris made a statement to officers of the Cedar Rapids Police Department. You must decide whether Jermaine Harris made the statement and, if so, how much weight you should give to it. In making these two decisions, you should consider all of the evidence, including the circumstances under which the statement may have been made.

You have heard evidence that the defendant engaged in similar conduct prior to the crimes with which he is now charged. You may not use this evidence to convict the defendant of the crimes charged solely on the basis that the evidence shows a criminal disposition or propensity. Even if you find that the defendant committed a similar act in the past, this is not evidence that he or she committed such an act in this case, and you may not convict a person simply because you believe he or she may have committed similar acts in the past. When considering such evidence, remember that the defendant is on trial only for the crimes charged, and you may consider the evidence of prior acts only as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident for the crimes charged in this case.

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

FINAL INSTRUCTION NO. 12 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF



Jermaine Harris 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. Harris or the fact that he is here in court. The presumption of innocence remains with Mr. Harris throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to Mr. Harris 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. 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 Jermaine Harris has committed each and every element of an offense charged in the indictment against him, you must find Jermaine Harris not guilty of that offense.



FINAL INSTRUCTION NO. 13 - 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. 14 - 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 crimes 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. 15 - 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 Jermaine Harris in any way in deciding whether the prosecution has proved its case 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 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.

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 22nd day of September, 1999.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION



UNITED STATES OF AMERICA,
Plaintiff,

No. CR 98-0002-MWB

vs.



VERDICT FORM

JERMAINE HARRIS,
Defendant.

____________________





As to the crimes charged in the indictment, we, the Jury, unanimously find defendant Jermaine Harris not guilty or guilty as indicated below:





COUNT DESCRIPTION FINAL INS. NO. VERDICT
I Distribution of Crack Cocaine No. 6 ___ Not guilty

___ Guilty

II Possession of Crack Cocaine with Intent to Distribute No. 7 ___ Not guilty

___ Guilty

Lesser included offense Simple Possession of Crack Cocaine (Mark this verdict only if your verdict on the charge of possession of crack cocaine with intent to distribute it is not guilty, or if, after all reasonable efforts, you are unable to reach a verdict on that charge.) No. 8 ___ Not guilty

___ Guilty

III Conspiracy to Commit Drug Offenses No. 9 ___ Not guilty

___ Guilty

If guilty, mark the objective or objectives of the conspiracy for which you have found defendant Jermaine Harris guilty:
a. Distribution of crack cocaine _____
b. Possession of crack cocaine with intent to distribute it



_____
c. Both distribution and possession with intent

_____






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