IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 03-4023-MWB

vs.



PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

NIKKI JANE NIEMAN,
Defendant.

____________________





TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - DUTY OF JURORS 2

NO. 3 - REQUIREMENTS FOR PROOF 3

NO. 4 - PRESUMPTION OF INNOCENCE 6

NO. 5 - REASONABLE DOUBT 7

NO. 6 - OUTLINE OF TRIAL 8

NO. 7 - DEFINITION OF EVIDENCE 9

NO. 8 - CREDIBILITY OF WITNESSES 10

NO. 9 - BENCH CONFERENCES AND RECESSES 12

NO. 10 - OBJECTIONS 13

NO. 11 - NOTE-TAKING 14

NO. 12 - CONDUCT OF THE JURY 15

FINAL INSTRUCTIONS 17

NO. 1 - INTRODUCTION 17

NO. 2 - "INTENT" AND "KNOWLEDGE" 18

NO. 3 - BANK FRAUD 19

NO. 4 - SPECIFIC DEFENSE 22

NO. 5 - IMPEACHMENT 23

NO. 6 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF 24

NO. 7 - REASONABLE DOUBT 25

NO. 8 - DUTY TO DELIBERATE 26

NO. 9 - DUTY DURING DELIBERATIONS 28



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 all written and oral instructions given to you during or at the end of the trial, and apply them as a whole to the facts of the case.

PRELIMINARY INSTRUCTION NO. 2 - DUTY OF JURORS



Your duty is to decide from the evidence whether the defendant is not guilty or guilty of the crime charged against her. You will find the facts from the evidence. You are entitled to consider that evidence in light of your own observations and experiences. You may use reason and common sense to draw conclusions from facts that have been established by the evidence. You will then apply the law, which I will give you in my instructions, to the facts 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, based solely on 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. Similarly, do not conclude from any ruling or other comment I may make that I have any opinions on how you should decide the case.

Please remember that only defendant Nikki Jane Nieman, not anyone else, is on trial here. Also, remember that this defendant is on trial only for the crime charged against her, not for anything else.

Your verdict on the charge against the defendant must be unanimous.

PRELIMINARY INSTRUCTION NO. 3 - REQUIREMENTS FOR PROOF



To help you follow the evidence, I will now give you a summary of the requirements for proof of the "bank fraud" offense charged in the indictment.



PRELIMINARY MATTERS

The "bank fraud" offense charged in this case consists of "elements," which the prosecution must prove beyond a reasonable doubt in order to convict the defendant of that offense. I will summarize below the elements of the "bank fraud" offense with which Ms. Nieman is charged.

However, I must first explain that the indictment alleges that the offense was committed "between about" one date and "continuing through" a subsequent 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.

I will now give you more specific instructions about the "bank fraud" offense charged in the indictment.



BANK FRAUD

The indictment charges that, beginning in about March 2001, and continuing to October 2001, while Ms. Nieman was employed by Firstar Bank as a branch manager at the Morningside Branch in Sioux City, Iowa, Ms. Nieman knowingly executed or attempted to execute a scheme to defraud Firstar, a financial institution whose accounts were insured by the Federal Deposit Insurance Corporation (FDIC).

Elements

For you to find the defendant guilty of the "bank fraud" offense charged in the indictment, the government must prove the following two essential elements beyond a reasonable doubt:

One, beginning in about March 2001, and continuing to October 2001, Ms. Nieman knowingly executed, or attempted to execute, a scheme to defraud Firstar, that is, a deliberate plan of action or course of conduct involving intent to deceive or cheat Firstar, as shown by proof of intent to cause, or contemplation of, actual harm or injury to Firstar, and deliberately false representations;

Two, at that time, Firstar was insured by the United States Government.

Unless the government proves both elements beyond a reasonable doubt, you must find the defendant not guilty of the "bank fraud" offense charged in the indictment.

Execution of the alleged "scheme to defraud"

The Grand Jury charges that the "scheme to defraud" was carried out, in part, as follows:

a. On or about March 7, 2001, defendant Nieman reopened her account, no. 793386244. At the time the account was reopened by the defendant, it had been closed because she had a negative balance of $5,505.62. Defendant Nieman reopened the account with a balance of $0.00, without authorization, and began using the account without paying off the negative balance as required by bank policy.

b. On or about April 17, 2001, defendant Nieman reopened her account, no. 793386244. At the time the account was reopened by the defendant, it had been closed because she had a negative balance of $346.46. Defendant Nieman reopened the account with a balance of $0.00, without authorization, and began using the account without paying off the negative balance as required by bank policy.

c. During August of 2001, and continuing to about September of 2001, defendant Nieman used her position to access the overdraft report for Firstar to change the NSF checks on her DDA account from "Return-Charge" to "Pay-No Charge" which allowed the account to be further overdrawn and caused NSF return check fees, which should have been charged to the defendant's account, to be waived by Firstar.

d. From April to July of 2001, defendant Nieman, without proper authorization, reopened Sheila Allen's account no. 195835640, which had been closed and charged-off by the bank because of a negative balance of $873.53 which brought the balance to $0.00.

e. From April to July of 2001, defendant Nieman, without proper authorization, reopened Sheila Allen's account no. 195835640, which had been closed and charged-off by the bank because of a negative balance of $779.41 which brought the balance to $0.00.



Even if the government proves these facts, that does not mean that the defendant engaged in a "scheme to defraud" or that she is guilty of the "bank fraud" offense charged in the indictment. Rather, if this conduct is proved, it is for you to decide whether, in engaging in this conduct, the defendant (1) had the intent to defraud, and (2) deliberately made false representations to the bank. Only if these additional facts are proved can you find that the government proved that the defendant engaged in a "scheme to defraud."





This is only a preliminary outline of the requirements for proof of the "bank fraud" offense charged in the indictment. 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 requirements for proof of the offense charged.

PRELIMINARY INSTRUCTION NO. 4 - PRESUMPTION OF INNOCENCE



The charge against the defendant is set out in an indictment. As I explained to you during jury selection, an indictment is simply an accusation. It is not evidence of anything. Defendant Nikki Jane Nieman has pleaded not guilty to the charge brought against her; therefore, she is presumed to be innocent. This presumption of innocence requires you to put aside all suspicion that might arise from the arrest or charge of the defendant or the fact that she is here in court. The presumption of innocence remains with the defendant throughout the trial. That presumption alone is sufficient to find her not guilty. The presumption of innocence may be overcome as to the defendant only if the prosecution proves, beyond a reasonable doubt, all of the elements of the crime charged against her.

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

PRELIMINARY INSTRUCTION NO. 5 - REASONABLE DOUBT



A reasonable doubt may arise from the evidence produced by either of the parties, keeping in mind that the defendant never has the burden or duty of calling any witnesses or producing any evidence. It may also arise from the prosecution's lack of evidence. 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. 6 - 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. 7 - DEFINITION OF EVIDENCE



Evidence is:

1. Testimony.

2. Exhibits that I admit into evidence.

3. Stipulations, which are agreements between the parties.

Evidence may be "direct" or "circumstantial." 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.

A particular item of evidence is sometimes admitted only for a limited purpose, and not for any other purpose. I will tell you if that happens, and instruct you on the purposes for which the item can and cannot be used.

The fact that an exhibit may be shown to you does not mean that you must rely on it more than you rely on other evidence.

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.

The weight of the evidence is not determined by the number of witnesses testifying as to the existence or non-existence of any fact. Also, the weight of the evidence should not be determined merely by the number or volume of documents or exhibits. The weight of evidence depends on its quality, not quantity. The quality and weight of the evidence are for you to decide.

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 results from an innocent misrecollection or sincere lapse of memory, or instead from an intentional falsehood or pretended lapse of memory.

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

Ordinarily, witnesses may only testify to factual matters within their personal knowledge. However, you may hear evidence from persons described as experts. Persons may become qualified as experts in some field by knowledge, skill, training, education, or experience. Such experts may state their opinions on matters in that field and may also state the reasons for their opinions. You should consider expert testimony just like any other testimony. You may believe all of what an expert says, only part of it, or none of it, considering the expert's qualifications, the soundness of the reasons given for the opinion, the acceptability of the methods used, any reason the expert may be biased, 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.

PRELIMINARY INSTRUCTION NO. 11 - NOTE-TAKING



If you want to take notes during the trial, you may, but be sure that your note-taking does not interfere with listening to and considering all the evidence. If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence.

Notes you take during the trial are not necessarily more reliable than your memory or another juror's memory. Therefore, you should not be overly influenced by the notes.

If you take notes, do not discuss them with anyone before you begin your deliberations. At the end of each day, please leave your notes on your chair. At the end of the trial, you may take your notes out of the notebook and keep them, or leave them, and we will destroy them. No one will read the notes, either during or after the trial.

You will notice that we 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 case 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. 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--on the Internet, in libraries, in the newspapers, or in any other way--or make any investigation about this case on your own. You must decide this case based on the evidence presented in court.

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, 2003.



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.

FINAL INSTRUCTION NO. 2 - "INTENT" AND "KNOWLEDGE"



"Intent" and "knowledge" are elements of the "bank fraud" offense charged in this case, and, therefore, must be proved beyond a reasonable doubt. "Intent" and "knowledge" may be proved like anything else: You may consider any statements made or acts done by the defendant, and all of the facts and circumstances in evidence, to aid you in the determination of the defendant's knowledge or intent. 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 her acts or omissions were unlawful.

FINAL INSTRUCTION NO. 3 - BANK FRAUD





The indictment charges Ms. Nieman with "bank fraud." More specifically, the indictment charges that, beginning in about March 2001, and continuing to October 2001, while Ms. Nieman was employed by Firstar Bank as a branch manager at the Morningside Branch in Sioux City, Iowa, Ms. Nieman knowingly executed or attempted to execute a scheme to defraud Firstar, a financial institution whose accounts were insured by the Federal Deposit Insurance Corporation (FDIC).

For you to find the defendant guilty of the "bank fraud" offense charged in the indictment, the government must prove the following two essential elements beyond a reasonable doubt:

One, beginning in about March 2001, and continuing to October 2001, Ms. Nieman knowingly executed, or attempted to execute, a scheme to defraud Firstar.

The phrase "scheme to defraud" means a deliberate plan of action or course of conduct by which someone intends to deceive or to cheat another or by which someone intends to deprive another of something of value. Proof of a "scheme to defraud" requires proof (1) that the defendant had the "intent to defraud," and (2) that the defendant deliberately made false representations to the bank or deliberately concealed a material fact from the bank.

"Intent to defraud" requires both an intent to deceive and intent to cause, or contemplation of, actual harm or injury to another. Therefore, the government must show that some actual harm or injury was contemplated by the defendant. However, it is not necessary for the government to prove that anyone lost any money or property as a result of the scheme or plan to defraud.

Where the scheme causes actual harm, evidence of the scheme itself is evidence of a defendant's "intent to defraud." However, where the scheme does not cause actual harm, the government must also present evidence independent of the alleged scheme to show an "intent to defraud." That additional evidence must show an intent to cause, or a contemplation of, actual harm or injury to the financial institution.

To prove a "scheme to defraud," the government must also prove that the defendant deliberately made false representations to the bank or deliberately concealed material facts from the bank. A representation is "false" when it is untrue when made or effectively conceals or omits a material fact. A representation or concealment is "material" if it has a natural tendency to influence, or is capable of influencing, the decision of the institution in deciding whether or not to engage in a particular transaction. However, whether or not a representation or concealment is "material" does not depend upon whether the institution was actually deceived.

The government alleges that the "scheme to defraud" was carried out, in part, as follows:

a. On or about March 7, 2001, defendant Nieman reopened her account, no. 793386244. At the time the account was reopened by the defendant, it had been closed because she had a negative balance of $5,505.62. Defendant Nieman reopened the account with a balance of $0.00, without authorization, and began using the account without paying off the negative balance as required by bank policy.

b. On or about April 17, 2001, defendant Nieman reopened her account, no. 793386244. At the time the account was reopened by the defendant, it had been closed because she had a negative balance of $346.46. Defendant Nieman reopened the account with a balance of $0.00, without authorization, and began using the account without paying off the negative balance as required by bank policy.

c. During August of 2001, and continuing to about September of 2001, defendant Nieman used her position to access the overdraft report for Firstar to change the NSF checks on her DDA account from "Return-Charge" to "Pay-No Charge" which allowed the account to be further overdrawn and caused NSF return check fees, which should have been charged to the defendant's account, to be waived by Firstar.

d. From April to July of 2001, defendant Nieman, without proper authorization, reopened Sheila Allen's account no. 195835640, which had been closed and charged-off by the bank because of a negative balance of $873.53 which brought the balance to $0.00.

e. From April to July of 2001, defendant Nieman, without proper authorization, reopened Sheila Allen's account no. 195835640, which had been closed and charged-off by the bank because of a negative balance of $779.41 which brought the balance to $0.00.

Even if the government proves these facts, that does not mean that the defendant engaged in a "scheme to defraud" or that she is guilty of the "bank fraud" offense charged in the indictment. Rather, if this conduct is proved, it is for you to decide whether, in engaging in this conduct, the defendant (1) had the intent to defraud, and (2) deliberately made false representations to the bank or deliberately concealed a material fact from the bank. Only if these additional facts are proved can you find that the government proved that the defendant engaged in a "scheme to defraud."



Two, at that time, Firstar was insured by the United States Government.

An institution was "insured by the United States Government" if it was insured by the Federal Deposit Insurance Corporation (FDIC) at the time of the defendant's alleged fraud or attempt to defraud.



For you to find the defendant guilty of the "bank fraud" offense charged in the indictment, the prosecution must prove both of the essential elements of this offense beyond a reasonable doubt. Otherwise, you must find the defendant not guilty of the "bank fraud" charge.

FINAL INSTRUCTION NO. 4 - SPECIFIC DEFENSE







In addition to denying that the prosecution has proved beyond a reasonable doubt all of the essential elements of the offenses charged, defendant Nikki Jane Nieman also asserts the following specific defense:

The defendant contends that she acted in "good faith." "Good faith" is a complete defense to the bank fraud charge, if it is inconsistent with knowingly executing, or attempting to execute, a scheme to defraud and, more specifically, inconsistent with any "intent to defraud." "Good faith" is essentially the converse of "intent to defraud." One acts in "good faith" if one acts with honest intention. Similarly, evidence that establishes only that a person made a mistake in judgment or an error in management, or was careless, does not establish "intent to defraud." However, one who knowingly and intentionally deceives another does not act in "good faith," whatever the manner or form in which the deception was attempted.

Remember that the burden never shifts to a defendant in a criminal case to prove her "good faith," any other defense, or otherwise to prove her innocence.

FINAL INSTRUCTION NO. 5 - IMPEACHMENT



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" and how you may treat certain evidence.

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.

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

FINAL INSTRUCTION NO. 6 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF





Nikki Jane Nieman 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 the defendant or the fact that she is here in court. The presumption of innocence remains with Nikki Jane Nieman throughout the trial. That presumption alone is sufficient to find her not guilty. The presumption of innocence may be overcome as to defendant Nieman only if the prosecution proves, beyond a reasonable doubt, each element of the crime charged against her.

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 the offense charged in the indictment against her, you must find her not guilty of that offense.

FINAL INSTRUCTION NO. 7 - REASONABLE DOUBT



A reasonable doubt may arise from the evidence produced by either of the parties, keeping in mind that the defendant never has the burden or duty of calling any witnesses or producing any evidence. It may also arise from the prosecution's lack of evidence. 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. 8 - 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 the defendant's guilt beyond a reasonable doubt on the offense charged against her, then the defendant should have your vote for a not guilty verdict on that offense. If all of you reach the same conclusion, then the verdict of the jury must be not guilty for the defendant on that offense. Of course, the opposite also applies. If, in your individual judgment, the evidence establishes the defendant's guilt beyond a reasonable doubt on the offense charged, then your vote should be for a verdict of guilty against the defendant on that charge, and if all of you reach that conclusion, then the verdict of the jury must be guilty for the defendant on that charge. As I instructed you earlier, the burden is upon the prosecution to prove beyond a reasonable doubt every essential element of the crime charged.

Remember, also, that the question before you can never be whether the government wins or loses the case. The government, as well as society, always wins, regardless of whether your verdict is not guilty or guilty, when justice is done.

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. 9 - 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 the defendant is guilty, the sentence to be imposed is my responsibility. You may not consider punishment of Nikki Jane Nieman 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 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, I am giving you the verdict form. A verdict form is simply the written notice of the decision that you reach in this case. Your verdict must be unanimous. You will take the verdict form to the jury room. When you have reached a unanimous verdict, your foreperson must complete one copy of the verdict form and all of you must sign that copy to record your individual agreement with the verdict and to show that it is unanimous. The foreperson must bring the signed verdict form to the courtroom when it is time to announce your verdict. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 4th day of June, 2003.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



UNITED STATES OF AMERICA,
Plaintiff,

No. CR 03-4023-MWB

vs.



VERDICT FORM

NIKKI JANE NIEMAN,
Defendant.

____________________



On the charge of "bank fraud," as charged in the indictment and explained in Final Jury Instruction No. 3, we, the Jury, unanimously find defendant Nikki Jane Nieman

Not Guilty _____ Guilty _____



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