IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 02-4010-MWB

vs.



PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

ROSARIO PLACENSIA, a/k/a "Cheyenne," a/k/a "Jaime,"
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 7

NO. 5 - REASONABLE DOUBT 8

NO. 6 - OUTLINE OF TRIAL 9

NO. 7 - DEFINITION OF EVIDENCE 10

NO. 8 - RECORDED CONVERSATIONS 11

NO. 9 - CREDIBILITY OF WITNESSES 12

NO. 10 - BENCH CONFERENCES AND RECESSES 14

NO. 11 - OBJECTIONS 15

NO. 12 - NOTE-TAKING 16

NO. 13 - CONDUCT OF THE JURY 17

FINAL INSTRUCTIONS 19

NO. 1 - INTRODUCTION 19

NO. 2 - "INTENT" AND "KNOWLEDGE" 20

NO. 3 - "DISTRIBUTION" AND "DELIVERY" 21

NO. 4 - CONSPIRACY 22

NO. 5 - OBJECTIVES OF THE CONSPIRACY 25

NO. 6 - ACTS AND STATEMENTS OF CO-CONSPIRATORS 28

NO. 7 - QUANTITY OF METHAMPHETAMINE 29

NO. 8 - SPECIFIC DEFENSE 30

NO. 9 - IMPEACHMENT 31

NO. 10 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF 33

NO. 11 - REASONABLE DOUBT 34

NO. 12 - DUTY TO DELIBERATE 35

NO. 13 - DUTY DURING DELIBERATIONS 37





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 him. 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 Rosario Placensia, not anyone else, is on trial here. Also, remember that this defendant is on trial only for the crime charged against him, not for anything else.

You must return a unanimous verdict on the charge against the defendant.

PRELIMINARY INSTRUCTION NO. 3 - REQUIREMENTS FOR PROOF



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



PRELIMINARY MATTERS

The 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 "conspiracy" offense with which Mr. Placensia is charged.

However, the identity of the defendant as the person who committed a crime is an element of every crime. In the indictment, the Grand Jury alleges that the defendant sometimes goes by the names, or "aliases," of "Cheyenne" or "Jaime"; therefore, the government must prove beyond a reasonable doubt not only that the crime alleged was committed, but also that the defendant was the one who committed it. A defendant does not have to prove that he did not commit the offense, that someone else committed the offense, or that he is not the person identified by an alias. Therefore, if the facts and circumstances that will be introduced in evidence leave you with a reasonable doubt as to whether or not the defendant is the person who committed the crime charged, then you must find him not guilty of the offense.

The indictment charges that the conspiracy offense was committed "between about" two dates. 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 these instructions, when I refer to a "controlled substance," I mean any drug or narcotic the manufacture, possession, possession with intent to distribute, or distribution of which is prohibited or regulated by federal law. Methamphetamine is a "controlled substance."



CONSPIRACY

I will now give you more specific instructions about the "conspiracy" offense charged in the indictment. The indictment charges that, between about 1997, and continuing through and including January 18, 2002, Mr. Placensia knowingly and unlawfully combined, conspired, confederated, and agreed with other persons, known and unknown to the Grand Jury, to commit offenses involving the distribution of methamphetamine.

Summary of Elements

For you to find the defendant guilty of the "conspiracy" offense charged in the indictment, the government must prove the following three essential elements beyond a reasonable doubt as to him:

One, between about 1997 and January 18, 2002, two or more persons reached an agreement or came to an understanding to commit one or more of the offenses identified as objectives of the conspiracy;

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; and

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

Objectives of the conspiracy

The Grand Jury charges that the defendant conspired to commit either or both of the following separate offenses: (1) distribution of methamphetamine; and (2) distribution of methamphetamine within 1,000 feet of the real property comprising a playground or schoolyard. To assist you in determining whether there was an agreement to commit either or both of these offenses, you should consider the elements of these offenses.

The elements of distribution of a controlled substance are the following:

(1) a person intentionally distributed a controlled substance to another; and

(2) at the time of the distribution, the person knew that what he or she was distributing was a controlled substance.



In addition to these two elements, the offense of distribution of a controlled substance within 1,000 feet of a playground or schoolyard requires proof of the following element:

(3) the distribution took place within 1,000 feet of the real property comprising a "playground" or "schoolyard."



The indictment identifies the "playground" in question in the second objective of the conspiracy as Klasey Park, a public park and playground in South Sioux City, Nebraska, and identifies the "schoolyard" as St. Michael's Catholic School, and its playground, in South Sioux City, Nebraska. The prosecution does not have to prove that the co-conspirators, or any defendant, agreed, knew, or intended that the distribution would take place within 1,000 feet of the "playground" or "schoolyard." However, the prosecution must prove beyond a reasonable doubt that a location at which the co-conspirators agreed that the distribution would take place was within 1,000 feet of a "playground" or "schoolyard."

To find the defendant guilty of the "conspiracy" charge, you do not have to find that any offense alleged to be an objective of the conspiracy was actually committed by the defendant or anyone else. It is the agreement to commit such an offense that is illegal; therefore, the illegal agreement is the conduct that has been charged in the indictment, and it is the agreement that must be proved to establish the defendant's guilt on the conspiracy charge.

Quantity of methamphetamine

In the indictment, the Grand Jury charges that the "conspiracy" offense involved "500 grams or more of a mixture or substance containing a detectable amount of methamphetamine." The prosecution does not have to prove that the conspiracy involved the amount or quantity of methamphetamine charged in the indictment. However, if you find the defendant guilty of the conspiracy offense, you must determine the total quantity, in grams, of the methamphetamine involved in the conspiracy for which the defendant can be held responsible. In making your determination of quantity as required, it may be helpful to remember that one pound is approximately equal to 453.6 grams, and that one ounce is approximately equal to 28.35 grams.



This is only a preliminary outline of the requirements for proof of the "conspiracy" 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 during jury selection, an indictment is simply an accusation. It is not evidence of anything. Defendant Rosario Placensia has pleaded not guilty to the charge brought against him; therefore, he 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 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, all of the elements 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. 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 him, you must find him 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 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.



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 - RECORDED CONVERSATIONS



As part of the evidence in this case, you may hear audiotape recordings of intercepted conversations. The conversations on the recording were legally recorded, and you may consider the recordings just like any other evidence.

The audiotape recordings may be accompanied by typed transcripts. A transcript, if present, may also undertake to identify the speakers engaged in the conversation. However, the identity of the speakers as set out in a transcript is not evidence; rather, it is merely the opinion of the person who transcribed the tape.

You are permitted to view a transcript for the purpose of helping you follow the conversation as you listen to a recording, to help you keep track of the speakers, and also for the purpose of translating statements from Spanish into English. A recording itself is the primary evidence of its own contents. Where the discussions were in English, transcripts are not evidence. On the other hand, where the discussions were in Spanish, transcripts of the discussions as translated into English are evidence, and you may consider those transcripts like any other evidence during your deliberations.

Even where a transcript is evidence, you are specifically instructed that whether the 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 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.

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 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 his 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. 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.

PRELIMINARY INSTRUCTION NO. 12 - 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. 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 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 21st day of October, 2002.



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 conspiracy offense charged in this case, or the alleged objectives of that conspiracy, and must be proved beyond a reasonable doubt. "Intent" and "knowledge" may be proved like anything else. 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. 3 - "DISTRIBUTION"

AND "DELIVERY"





The term "distribute" means to deliver a controlled substance to the possession of another person. The term "deliver" means the actual or attempted transfer of a controlled substance to the 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, or was intended to be, a "sale" of a controlled substance to prove a conspiracy to distribute a controlled substance.

FINAL INSTRUCTION NO. 4 - CONSPIRACY





The indictment charges that, between about 1997, and continuing through and including January 18, 2002, Mr. Placensia knowingly and unlawfully combined, conspired, confederated, and agreed with other persons, known and unknown to the Grand Jury, to commit offenses involving the distribution of methamphetamine. For you to find the defendant guilty of the "conspiracy" offense charged in the indictment, the government must prove the following three essential elements beyond a reasonable doubt as to him:

One, between about 1997 and January 18, 2002, two or more persons reached an agreement or came to an understanding to commit one or more of the offenses identified as objectives of the conspiracy.

The prosecution 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 any other conspirators be named as long as you find beyond a reasonable doubt that there was at least one other co-conspirator besides the defendant.

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.

The Grand Jury charges that the defendant conspired to commit either or both of the following separate offenses: (1) distribution of methamphetamine; and (2) distribution of methamphetamine within 1,000 feet of the real property comprising a playground or schoolyard. I will explain these objectives of the conspiracy in more detail in Final Jury Instruction No. 5.

Keep in mind that, in the "conspiracy" charge in the indictment, the Grand Jury charges that the defendant conspired to commit either or both of these offenses, not that either offense was actually committed by the defendant or anyone else. Therefore, to find the defendant guilty of the "conspiracy," as charged in the indictment, you do not have to find that any offense identified as an objective of the conspiracy was actually committed by the defendant or anyone else.

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.

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 that advances some purpose of one, does not thereby become a member. Similarly, mere knowledge of the existence of a conspiracy is not enough to prove that the defendant joined in the conspiracy; rather, the prosecution must establish some degree of knowing involvement and cooperation.

On the other hand, a person may join in an agreement or understanding, as required by this element, 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.

In deciding whether the defendant voluntarily and intentionally joined in the agreement, you must consider only evidence of his own actions and statements. You may not consider actions and pretrial statements of others, except to the extent that pretrial statements of others describe something that the defendant said or did.



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

The defendant must know of the existence and purpose of the conspiracy. Without such knowledge, the defendant cannot be guilty of conspiracy, even if his acts furthered the conspiracy.



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

In addition, if you find the defendant guilty of this "conspiracy," then you must also determine beyond a reasonable doubt the quantity of methamphetamine actually involved in the conspiracy for which the defendant can be held responsible, as explained in Final Jury Instruction No. 7.

FINAL INSTRUCTION NO. 5 - OBJECTIVES OF THE CONSPIRACY







The Grand Jury charges that the defendant conspired to commit either or both of the following separate offenses: (1) distribution of methamphetamine; and (2) distribution of methamphetamine within 1,000 feet of the real property comprising a playground or schoolyard. The prosecution does not have to prove that the conspiracy had both of the objectives alleged. However, the prosecution must prove beyond a reasonable doubt that the conspiracy had at least one of the objectives alleged. You must unanimously agree on which one or more of the offenses alleged in the indictment were proved to be objectives of the conspiracy.

To assist you in determining whether there was an agreement to commit either or both of the offenses alleged to be objectives of the conspiracy, you should consider the elements of those offenses.

First objective: The elements of distribution of a controlled substance are the following:

(1) a person intentionally distributed a controlled substance to another; and

(2) at the time of the distribution, the person knew that what he or she was distributing was a controlled substance.



Second objective: In addition to the two elements of a distribution offense, above, the offense of distribution of a controlled substance within 1,000 feet of a playground or schoolyard requires proof of the following element:

(3) the distribution took place within 1,000 feet of the real property comprising a "playground" or "schoolyard."



The indictment identifies the real property in question in the second objective of the conspiracy as Klasey Park, a public park and playground in South Sioux City, Nebraska, and St. Michael's Catholic School, and its playground, in South Sioux City, Nebraska. Therefore, for purposes of the second objective, you must also consider the following:

A "playground" is defined as any outdoor facility, including any adjacent parking lot, intended for recreation, open to the public, and with any portion thereof containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards. Children do not need to be near or around the playground at the time of the offense for the property to be a "playground." The "playground" in question here is alleged to be Klasey Park in South Sioux City, Nebraska. It is for you to determine whether Klasey Park fits the definition of a "playground."

A "schoolyard" is defined as the real property comprising a public or private elementary school. School does not have to be in session nor do children need to be near or around the school at the time of the offense for the property to be a "schoolyard." The "schoolyard" in question here is St. Michael's Catholic School and its playground in South Sioux City, Nebraska. It is for you to determine whether St. Michael's Catholic School and its playground fit the definition of a "schoolyard."

You must also decide whether the location at which the distribution of a controlled substance was to take place was within 1,000 feet of the "playground" or "schoolyard." The 1,000 foot zone can be measured in a straight line from the "playground" or "schoolyard," irrespective of actual pedestrian travel routes.

The prosecution does not have to prove that the co-conspirators, or any defendant, agreed, knew, or intended that the distribution would take place within 1,000 feet of the "playground" or "schoolyard." However, the prosecution must prove beyond a reasonable doubt that a location at which the co-conspirators agreed that the distribution would take place was within 1,000 feet of a "playground" or "schoolyard."

Evidence that distribution of a controlled substance pursuant to the conspiracy actually occurred at a location within 1,000 feet of a "playground" or "schoolyard" is evidence from which you may, but are not required to, find that a location at which the co-conspirators agreed that a distribution would take place was within 1,000 feet of a "playground" or "schoolyard."





To find the defendant guilty of the "conspiracy" charge, you do not have to find that any offense alleged to be an objective of the conspiracy was actually committed by the defendant or anyone else. It is the agreement to commit such an offense that is illegal; therefore, the illegal agreement is the conduct that has been charged in the indictment, and it is the agreement that must be proved to establish the defendant's guilt on the conspiracy charge.

FINAL INSTRUCTION NO. 6 - ACTS AND STATEMENTS OF

CO-CONSPIRATORS





If you find beyond a reasonable doubt that a 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 defendant's absence and without his knowledge. This includes acts done or statements made before the defendant joined the conspiracy.

FINAL INSTRUCTION NO. 7 - QUANTITY OF METHAMPHETAMINE







In the indictment, the Grand Jury charges that the "conspiracy" offense involved "500 grams or more of a mixture or substance containing a detectable amount of methamphetamine." The prosecution does not have to prove that the offense involved the amount or quantity of methamphetamine charged in the indictment for you to find the defendant guilty of that offense, although the prosecution must prove that the controlled substance involved in the offense was, in fact, methamphetamine. Therefore, you must determine, beyond a reasonable doubt, (i) whether or not the controlled substance involved in the offense was in fact methamphetamine, as charged in the indictment, and if it was, (ii) the amount of the methamphetamine involved in the offense for which the defendant, if he is guilty of that offense, can be held responsible. In so doing, you may consider all of the evidence in the case that may aid in the determination of these issues.

A defendant guilty of conspiracy to distribute methamphetamine is responsible for quantities of methamphetamine that he actually distributed or agreed to distribute. Such a defendant is also responsible for those quantities of methamphetamine that fellow conspirators distributed or agreed to distribute, if you find that the defendant could have reasonably foreseen, at the time he joined the conspiracy or while the conspiracy lasted, that those prohibited acts were a necessary or natural consequence of the conspiracy.

You must determine quantity of methamphetamine in terms of quantity of a mixture or substance containing a detectable amount of methamphetamine. You must determine the total quantity, in grams, of methamphetamine involved in the conspiracy for which the defendant can be held responsible and indicate in the Verdict Form the range within which that total quantity falls.

FINAL INSTRUCTION NO. 8 - SPECIFIC DEFENSE



In addition to denying that the prosecution has proved beyond a reasonable doubt all of the essential elements of the offense charged, defendant Rosario Placensia also asserts the following specific defense:

The defendant contends that he did not distribute methamphetamine or conspire with anyone to distribute methamphetamine. It is not enough for the prosecution to show only that the defendant associated with members of a conspiracy or that he happened to act in a way that advanced some purpose of a conspiracy, if the prosecution does not also prove that the defendant knew about and intended to join in the conspiracy. Therefore, the prosecution must establish some degree of knowing involvement and cooperation for you to find that the defendant was a member of the conspiracy.

Remember that the burden never shifts to a defendant in a criminal case to prove his specific defense or otherwise to prove his innocence.

FINAL INSTRUCTION NO. 9 - IMPEACHMENT





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 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.

You have heard evidence that witness Jaime Romo has been convicted of a crime. You may use that evidence only to help you decide whether or not to believe this witness and how much weight to give his testimony.

You have also heard evidence that witness Jaime Romo is testifying pursuant to a plea agreement and hopes to receive a reduction in his sentence in return for his cooperation with the government 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 reduce the sentence of that witness at all, and if so, how much to reduce it. You should treat the testimony of this witness with greater caution and care than that of other witnesses. However, 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 the 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 you think it deserves.

FINAL INSTRUCTION NO. 10 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF





Rosario Placensia 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 he is here in court. The presumption of innocence remains with Rosario Placensia throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to defendant Placensia 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, 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 element of the offense charged in the indictment against him, you must find him not guilty of that offense.

FINAL INSTRUCTION NO. 11 - 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 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.

FINAL INSTRUCTION NO. 12 - DUTY TO DELIBERATE





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

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

Remember that if, in your individual judgment, the evidence fails to establish 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 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. 13 - DUTY DURING DELIBERATIONS



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

First, when you go to the jury room, you must select one of your members as your foreperson. That person will preside over your discussions and speak for you here in court.

Second, if the defendant is guilty, the sentence to be imposed is my responsibility. You may not consider punishment of Rosario Placensia 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 23rd of October, 2002.





IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 02-4010-MWB

vs.



VERDICT FORM

ROSARIO PLACENSIA, a/k/a "Cheyenne," a/k/a "Jaime,"
Defendant.

____________________





We, the Jury, unanimously find defendant Rosario Placensia not guilty or guilty as follows:

CONSPIRACY TO DISTRIBUTE METHAMPHETAMINE VERDICT
Step 1:

Verdict

On the charge of "conspiracy," as explained in Final Jury Instruction No. 4, please mark your verdict. ____ Not Guilty

____ Guilty

Step 2:

Objective(s)

If you have found defendant Rosario Placensia guilty of this offense, please mark each offense that was an objective of the conspiracy. (Objectives of the conspiracy were explained in Final Jury Instruction No. 5.)
_____ Distribution of methamphetamine
_____ Distribution of methamphetamine within 1,000 feet of a playground or schoolyard. If you marked this objective, please also mark each playground or schoolyard that you find was within 1,000 feet of a location from which a distribution pursuant to the conspiracy was actually made or intended to be made:

___ Klasey Park ___ St. Michael's Catholic School and playground

Step 3:

Quantity of Metham-phetamine

If you have found defendant Rosario Placensia guilty of this offense, please indicate the quantity of methamphetamine actually involved in the conspiracy for which the defendant can be held responsible. (Determinations regarding quantity of methamphetamine are explained in Final Jury Instruction No. 7.)
_____ 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine
_____ 50 grams or more, but less than 500, of a mixture or substance containing a detectable amount of methamphetamine
_____ Less than 50 grams of a mixture or substance containing a detectable amount of methamphetamine






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