IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 99-3019-MWB

vs.



INSTRUCTIONS

TO THE JURY

ALEXANDRO VASQUEZ-GUTIERREZ,
Defendant.






TABLE OF CONTENTS

INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

NO. 3 - REASONABLE DOUBT

NO. 4 - DEFINITION OF EVIDENCE

NO. 5 - STIPULATED FACTS

NO. 6 - RECORDED CONVERSATIONS

NO. 7 - "POSSESSION," "DISTRIBUTION," AND "DELIVERY"

NO. 8 - POSSESSION WITH INTENT TO DISTRIBUTE

NO. 9 - CREDIBILITY AND IMPEACHMENT

NO. 10 - NOTE-TAKING

NO. 11 - DUTY TO DELIBERATE

NO. 12 - DUTY DURING DELIBERATIONS



VERDICT FORM

INSTRUCTION NO. 1 - INTRODUCTION



Members of the jury, consider these instructions, together with any oral instructions that I may give to you during 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.

In this case, the United States charges that, on or about August 15, 1999, defendant Alexandro Vasquez-Gutierrez knowingly and intentionally possessed more than five kilograms of cocaine with intent to distribute it. Your duty is to decide from the evidence whether the defendant is not guilty or guilty of the crime 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 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. Also, your verdict on the charge against the defendant must be unanimous.

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you. Do not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

Please remember that only defendant Alexandro Vasquez-Gutierrez, not anyone else, is on trial here, and that this defendant is on trial only for the crime charged against him, not for anything else.

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.

INSTRUCTION NO. 2 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF



Alexandro Vasquez-Gutierrez 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. Vasquez-Gutierrez, 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 the crime charged against him.

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

Unless the prosecution proves beyond a reasonable doubt that the defendant has committed each and every essential element of the offense charged in the indictment, you must find the defendant not guilty of the offense charged.

INSTRUCTION NO. 3 - REASONABLE DOUBT



A reasonable doubt may arise from the evidence or lack of evidence produced by the prosecution. 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.

INSTRUCTION NO. 4 - 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 happens, 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.

INSTRUCTION NO. 5 - STIPULATED FACTS



The prosecution and the defendant have stipulated--that is, they have agreed--that certain facts are as counsel states them to be. You must therefore treat those facts as having been proved.

INSTRUCTION NO. 6 - RECORDED CONVERSATIONS



You may hear an audio tape recording or view a videotape recording. The conversations on the recording were legally recorded, and you may consider the recording just like any other evidence.

The recording may or may not be accompanied by a typed transcript. A transcript, if present, may also undertake to identify the speakers engaged in the conversation. You are permitted to view a transcript for the limited purpose of helping you follow the conversation as you listen to or view the recording, to help you keep track of the speakers, and also for the purpose of translating statements from Spanish into English. A transcript, however, is not evidence. A recording itself is the primary evidence of its own contents.

You are specifically instructed that whether a transcript, if available, correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you may hear about the preparation of the transcript and upon your own examination of the transcript in relation to what you hear on the 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 a recording and read in a transcript, if available, 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.

INSTRUCTION NO. 7 - "POSSESSION," "DISTRIBUTION,"

AND "DELIVERY"





The offense charged involves "possession," "distribution," and "delivery" of a controlled substance. 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 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.

In addition, mere presence where a thing was found or mere physical proximity to the thing is insufficient to establish "possession" of that item. Knowledge of the presence of the thing, at the same time one has control over the thing or the place in which it was found, is required. Thus, in order to establish "possession" of a thing, in addition to knowledge of the presence of the thing, the government must establish that, at the same time, (a) the person intended to exercise control over the thing or place in which it was found; (b) the person had the power to exercise control over the thing or place in which it was found; and (c) the person knew that he had the power to exercise control over the thing or place in which it was found.

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 to establish distribution or that there was to be a "sale" to establish intent to distribute.

INSTRUCTION NO. 8 - POSSESSION WITH INTENT

TO DISTRIBUTE





The United States charges that, on or about August 15, 1999, the defendant knowingly and intentionally possessed more than five kilograms of cocaine with intent to distribute it. This "possession with intent to distribute" charge is set forth in what is called an indictment. An indictment is simply an accusation. It is not evidence of anything. The defendant has pleaded not guilty to the crime charged against him; therefore, he is presumed to be innocent unless and until the prosecution proves his guilt beyond a reasonable doubt on the offense charged against him.

For you to find the defendant guilty of this "possession with intent to distribute" offense, the prosecution must prove the following three elements beyond a reasonable doubt as to the defendant:

One, on or about August 15, 1999, the defendant was in possession of cocaine.

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

"Possession" was defined for you in Instruction No. 7. The prosecution does not have to prove that the defendant possessed the amount or quantity of cocaine charged in the indictment. However, you must ascertain whether or not the substance in question was in fact cocaine, as specified in the indictment.



Two, the defendant knew that he was, or intended to be, in possession of a controlled substance.

"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 "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 his acts or omissions were unlawful.

Additionally, the defendant need not know what the controlled substance is if the defendant knows that he has possession of some controlled substance. A "controlled substance" is any drug or narcotic the manufacture, possession, or distribution of which is prohibited or regulated by federal law. Cocaine is a controlled substance.



Three, the defendant intended to distribute some or all of the controlled substance to another person.

Again, "intent" was defined for you just above, in reference to element two. Possession of a large quantity of a controlled substance is evidence from which you may, but are not required to, infer that the possessor intended to distribute the controlled substance. The term "distribute" was defined for you in Instruction No. 7.



For you to find the defendant guilty of the crime of possession of cocaine with intent to distribute it, as charged in the indictment, the government must prove all of the essential elements of this offense beyond a reasonable doubt as to the defendant; otherwise, you must find the defendant not guilty of the offense charged in the indictment.

INSTRUCTION NO. 9 - CREDIBILITY AND IMPEACHMENT



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.

You may hear evidence from persons described as experts. Persons who, by knowledge, skill, training, education, or experience, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinion. You should consider expert testimony just like any other testimony. You may accept or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the soundness of the reasons given for the opinion, and the acceptability of the methods used, and all of the other evidence in the case.

Also, 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.

A witness may be discredited or "impeached" by contradictory evidence; by a showing that the witness testified falsely concerning a material matter; or by evidence that at some other time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony. If earlier statements of a witness were admitted into evidence, they were not admitted to prove that the contents of those statements were true. Instead, you may consider those earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness, and therefore whether they affect the credibility of that witness.

You may hear evidence that a witness has pleaded guilty to a charge that arose out of the same events for which defendant Vasquez-Gutierrez is now on trial. You cannot consider such a witness's guilty plea as any evidence of the guilt of the defendant. Rather, you can consider such a witness's guilty plea only for the purpose of determining how much, if at all, to rely upon his testimony.

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

1. You may hear evidence that a witness is testifying pursuant to a plea agreement and hopes to receive reductions in his sentence in return for his cooperation with the prosecution in this case. If the prosecutor handling such a witness's case believes the witness has provided "substantial assistance," the prosecutor can file a motion to reduce 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 grant the motion and, if the motion is granted, whether to reduce the sentence of that witness at all, and if so, how much to reduce it. You may give the testimony of such witnesses such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by the witness's hope of receiving a reduction in sentence is for you to decide.

2. You may also hear testimony from a witness that he participated in the crime charged against the defendant. Such a witness's testimony may be received in evidence and you may consider it. You may give the testimony of such a witness such weight as you think it deserves. Whether or not the testimony of such a witness may have been influenced by his desire to please the government or to strike a good bargain with the government about his own situation is for you to determine.

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.

INSTRUCTION NO. 10 - 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.

INSTRUCTION NO. 11 - 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 him, then the defendant should have your vote for a not guilty verdict on the offense. If all of you reach the same conclusion, then the verdict of the jury must be not guilty for the defendant on the 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 the charge, and if all of you reach that conclusion, then the verdict of the jury must be guilty for the defendant on the 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.

INSTRUCTION NO. 12 - 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 Alexandro Vasquez-Gutierrez 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, 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 9th day of April, 2001.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,
Plaintiff,

No. CR 99-3019-MWB

vs.



VERDICT FORM

ALEXANDRO VASQUEZ-GUTIERREZ,
Defendant.

____________________





On the charge of possession of cocaine with intent to distribute it, as charged in the indictment and explained in Instruction No. 8, we, the Jury, unanimously find defendant Alexandro Vasquez-Gutierrez

_____ Not guilty _____ Guilty



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