IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,
Plaintiff, No. CR 00-3020-MWB
vs.

PRELIMINARY AND FINAL INSTRUCTIONS

TO THE JURY

PABLO ORTEGA, DANIEL CASTRO, and SONYA POLMANTEER,
Defendants.







TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - STATEMENT OF THE CASE

NO. 3 - ELEMENTS OF THE OFFENSES

NO. 4 - OUTLINE OF TRIAL

NO. 5 - PRESUMPTION OF INNOCENCE

NO. 6 - REASONABLE DOUBT

NO. 7 - DEFINITION OF EVIDENCE

NO. 8 - RECORDED CONVERSATIONS

NO. 9 - CREDIBILITY OF WITNESSES

NO. 10 - BENCH CONFERENCES AND RECESSES

NO. 11 - OBJECTIONS

NO. 12 - NOTE-TAKING

NO. 13 - CONDUCT OF THE JURY

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - DUTY OF JURORS

NO. 3 - NATURE OF AN INDICTMENT

NO. 4 - "INTENT"AND "KNOWLEDGE"

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

NO. 6 - COUNT I: CONSPIRACY

NO. 7 - ACTS AND STATEMENTS OF CO-CONSPIRATORS

NO. 8 - COUNT II: POSSESSION OF METHAMPHETAMINE WITH

INTENT TO DISTRIBUTE IT

NO. 9 - THEORIES OF DEFENSE

NO. 10 - QUANTITY OF METHAMPHETAMINE

NO. 11 - IMPEACHMENT AND TREATMENT OF CERTAIN

EVIDENCE

NO. 12 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF

NO. 13 - REASONABLE DOUBT

NO. 14 - DUTY TO DELIBERATE

NO. 15 - DUTY DURING DELIBERATIONS



VERDICT FORM



PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



Members of the jury, these preliminary instructions are given to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.

PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE



This is a criminal case brought by the United States of America against defendants Pablo Ortega, Daniel Castro, and Sonya Polmanteer. In an indictment, the United States charges each of these defendants with two offenses: (1) conspiracy to distribute more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine between about June 10, 2000, and June 12, 2000; and (2) possession, on or about June 12, 2000, of more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine with intent to distribute it. In a third count of the indictment, the United States seeks the forfeiture of a 1992 blue Ford Crown Victoria, which is allegedly owned by defendant Daniel Castro and was allegedly used or intended to be used to commit or facilitate the commission of the other offenses charged in this case. You will only receive instructions on the question of forfeitability of the automobile if you find defendant Castro guilty on one of the drug offenses.

These charges are set forth in what is called an indictment. An indictment is simply an accusation. It is not evidence of anything. The defendants have all pleaded not guilty to each of the crimes charged against them; therefore, each defendant is presumed to be innocent unless and until the prosecution proves his or her guilt beyond a reasonable doubt on an offense charged against him or her.

Your duty is to decide from the evidence whether each of the defendants is not guilty or guilty of the crimes charged against him or her. 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 will give you in these and in my other instructions, to reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

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

Please remember that only defendants Pablo Ortega, Daniel Castro, and Sonya Polmanteer, not anyone else, are on trial here, and that these defendants are on trial only for the crimes charged against them, not for anything else.

Finally, keep in mind that the indictment charges these defendants with two or more separate offenses. Therefore, you must consider separately each count and each defendant charged with that count, and return a separate verdict for each defendant on each count.

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF THE OFFENSES



To help you follow the evidence, here is a brief summary of the elements of the two drug offenses charged in this case.



Conspiracy

The Government alleges that each defendant conspired to distribute more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine. The crime of conspiracy, as charged in the indictment, has three essential elements, which are the following:

One, between about June 10, 2000, and June 12, 2000, two or more persons reached an agreement or came to an understanding to distribute methamphetamine;

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, he or she knew the purpose of the agreement or understanding.

For you to find a particular defendant guilty of the crime of conspiracy, as charged in the indictment, the Government must prove all of the essential elements of this offense beyond a reasonable doubt as to that defendant; otherwise, you must find that defendant not guilty of the crime of conspiracy as charged in the indictment. In addition, if you find a defendant guilty of this conspiracy offense, you must also determine beyond a reasonable doubt the quantity of the methamphetamine involved in the conspiracy for which the defendant can be held responsible.

To assist you in determining whether there was an agreement to distribute methamphetamine, you should consider the elements of the substantive offense of distribution of a controlled substance, which are the following: One, a person intentionally distributed a controlled substance to another; and two, at the time of the distribution, the person knew that what the person was distributing was a controlled substance. Keep in mind that the indictment charges each defendant with conspiracy to distribute methamphetamine, not that the crime of distribution of methamphetamine was actually committed.



Possession With Intent To Distribute

The Government also alleges that each defendant knowingly and intentionally possessed more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine with intent to distribute it. The crime of possession of methamphetamine with intent to distribute it, as charged in the indictment, has three essential elements, which are the following:

One, on or about June 12, 2000, the defendant was in possession of methamphetamine;

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

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

For you to find a particular defendant guilty of the crime of possession of methamphetamine 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 that defendant; otherwise, you must find that defendant not guilty of the crime of possession of methamphetamine with intent to distribute it as charged in the indictment. In addition, if you find a defendant guilty of this "possession with intent" offense, you must determine beyond a reasonable doubt the quantity of the methamphetamine the defendant possessed with intent to distribute it.



This is only a preliminary outline of the elements of the drug offenses charged in the indictment. At the end of the trial, I will give you final written instructions on these offenses and any specific defenses, in addition to failure of the Government to prove its case, that the defendants may raise to the charges. Because they are more detailed, those final instructions govern on the elements of the offenses charged and the defendants' defenses to them.

PRELIMINARY INSTRUCTION NO. 4 - OUTLINE OF TRIAL



The trial will proceed as follows:

After these preliminary instructions, the prosecutor may make an opening statement. Next, the lawyer for each of the defendants 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 each of the defendants may, but has no obligation to, cross-examine. Following the prosecution's case, each defendant may, but does not have to, present evidence and call witnesses. If a 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.

After you render your verdict on the drug offenses, if you have found defendant Castro guilty of one of the drug charges, you will be given further instructions on the forfeiture charge. You will then retire for more deliberations and the rendering of a verdict on the forfeiture charge.

PRELIMINARY INSTRUCTION NO. 5 - PRESUMPTION OF INNOCENCE



The defendants are each 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. Ortega, Mr. Castro, and Ms. Polmanteer, or the fact that they are here in court. The presumption of innocence remains with each defendant throughout the trial. That presumption alone is sufficient to find him or her not guilty. The presumption of innocence may be overcome as to a particular defendant only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against that defendant.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to any defendant to prove his or 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 a particular defendant has committed each and every essential element of an offense charged in the indictment against that defendant, you must find that defendant not guilty of that offense. Keep in mind that you must give separate consideration to the evidence about each individual defendant and each offense charged. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant on each count with which he or she is charged.

PRELIMINARY INSTRUCTION NO. 6 - 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.



PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE



Your verdict must be based only on the evidence and these and other instructions that I may give you during the trial.

Evidence is:

1. Testimony in person.

2. Exhibits I admit into evidence.

3. Stipulations, which are agreements between the parties.

4. Any other matter I admit into evidence.

Evidence may be "direct" or "circumstantial." However, the law makes no distinction between the weight to be given to direct and circumstantial evidence. The weight to be given any evidence is for you to decide.

If you have exhibits to consider as evidence, in deciding whether and how to rely on such an exhibit, you should evaluate its contents and its relationship to the other evidence in the case. The fact that an exhibit may be given to you for your inspection does not mean that you must rely on it more than you rely on the testimony of the witnesses.

The following are not evidence:

1. Statements, arguments, questions, and comments by the lawyers.

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

4. Anything you saw or heard about this case outside the courtroom.

Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you if that 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 a defendant. Do not give greater consideration to documents or exhibits, because of their volume and number, or the fact that they are in written form, than you give to any other evidence admitted in this case.

PRELIMINARY INSTRUCTION NO. 8 - 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.

PRELIMINARY INSTRUCTION NO. 9 - CREDIBILITY OF WITNESSES



In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, only part of it, or none of it.

In deciding what testimony to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the witness's drug or alcohol use or addiction, if any, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe. In deciding whether or not to believe a witness, keep in mind that people sometimes see or hear things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or a small detail.

If a 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.

Finally, just because a witness works in law enforcement or is employed by the government does not mean you should give more weight or credence to such a witness's testimony than you give to any other witness's testimony.

PRELIMINARY INSTRUCTION NO. 10 - BENCH

CONFERENCES AND RECESSES



During the trial it may be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference here while the jury is present in the courtroom, or by calling a recess. Please be patient, because while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, to avoid confusion and error, and to save your valuable time. We will, of course, do what we can to keep the number and length of these conferences to a minimum.



PRELIMINARY INSTRUCTION NO. 11 - OBJECTIONS



The lawyers may make objections and motions during the trial that I must rule upon. If I sustain an objection to a question before it is answered, do not draw any inferences or conclusions from the question itself. Also, the lawyers have a duty to object to testimony or other evidence that they believe is not properly admissible. Do not hold it against a lawyer or the party the lawyer represents because the lawyer has made objections. Finally, do not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other.





PRELIMINARY INSTRUCTION NO. 12 - NOTE-TAKING



If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider carefully the evidence without taking notes. You should not be overly influenced by the notes.

You will notice that we do have an official court reporter making a record of the trial. However, we will not have typewritten transcripts of this record available for your use in reaching your verdict.



PRELIMINARY INSTRUCTION NO. 13 - CONDUCT OF THE JURY



Finally, to insure fairness, you as jurors must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers, or witnesses involved in this case--you should not even pass the time of day with any of them. It is important that you not only do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the 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. In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. If there are news reports about this case, you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case you will know more about the matter than anyone will learn through the news media.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

Eighth, if at anytime during the trial you have a problem that you would like to bring to my attention, or if you feel ill or need to go to the restroom, please send a note to the Court Security Officer, who will deliver it to me. I want you to be comfortable, so please do not hesitate to inform me of any problem.

DATED this 3rd day of October, 2000.





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.

In considering these instructions, the order in which they are given is not important.

FINAL INSTRUCTION NO. 2 - DUTY OF JURORS



Your duty is to decide from the evidence whether each defendant is not guilty or guilty of the crimes charged against him or her. You will find the facts from the evidence. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts that have been established by the evidence. You will then apply those facts to the law, which I give you in these and in my other instructions, to reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

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

Please remember that only defendants Pablo Ortega, Daniel Castro, and Sonya Polmanteer, not anyone else, are on trial here, and that these defendants are on trial only for the crimes charged against them, not for anything else.

Finally, keep in mind that the indictment charges these defendants with two or more separate offenses. Therefore, you must consider separately each count and each defendant charged with that count, and return a separate verdict for each defendant on each count.

FINAL INSTRUCTION NO. 3 - NATURE OF AN INDICTMENT



The charges against these defendants are set forth in what is called an indictment. As I told you at the beginning of this trial, an indictment is simply an accusation. It is not evidence of anything. Each of the defendants has pleaded not guilty to the crimes charged against him or her, and each is therefore presumed to be innocent unless and until the prosecution proves his or her guilt on an offense charged beyond a reasonable doubt.

The indictment charges that each offense was committed "on or about" a certain date or "about" and "between" certain dates. However, 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.

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

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



"Intent" and "knowledge" are elements of the offenses charged in this case. "Intent" and "knowledge" may be proved like anything else. You may consider the evidence of a defendant's words, acts, or omissions, along with all of the facts and circumstances in evidence that may aid in your determination of that defendant's "knowledge" or "intent."

As to "intent," you may, but are not required to, infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.

An act is done "knowingly" if a defendant is aware of the act and does not act through ignorance, mistake, or accident. The prosecution is not required to prove that a defendant knew that his or her acts or omissions were unlawful.

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

AND "DELIVERY"



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

FINAL INSTRUCTION NO. 6 - COUNT I: CONSPIRACY



In the indictment, the United States charges each of the defendants with conspiracy to distribute methamphetamine. The crime of conspiracy, as charged in the indictment, has three essential elements, which are the following:

One, between about June 10, 2000, and June 12, 2000, two or more persons reached an agreement or came to an understanding to distribute methamphetamine.

To assist you in determining whether there was an agreement to distribute methamphetamine, you should consider the elements of the substantive offense of distribution of a controlled substance, which are the following: One, a person intentionally distributed a controlled substance to another; and two, at the time of the distribution, the person knew that what he or she was distributing was a controlled substance. Keep in mind that the indictment charges these defendants with conspiracy to distribute methamphetamine, not that the crime of distribution of methamphetamine was actually committed.

The prosecution must prove that a defendant reached an agreement or understanding with at least one other person. It makes no difference whether that person is a defendant, or named in the indictment, or otherwise charged with a crime. There is no requirement that the other conspirators be named as long as you find beyond a reasonable doubt that there were other co-conspirators. The "agreement or understanding" need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme. In determining whether the alleged agreement existed, you may consider the actions and statements of all of the alleged participants, whether they are charged as defendants or not. The agreement may be inferred from all the circumstances and the conduct of the alleged participants.

The prosecution does not have to prove that the conspiracy involved the amount or quantity of methamphetamine charged in the indictment. You must ascertain whether or not the controlled substance in question was in fact methamphetamine, as specified in the indictment



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.

A defendant may join in an agreement or understanding without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further, it is not necessary that the defendant agree to play any particular part in carrying out the agreement or understanding. The defendant may become a member of a conspiracy even if the defendant agrees to play only a minor part in the conspiracy, as long as the defendant has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

However, 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.

In determining whether a particular defendant became a member of the conspiracy, you may consider only the acts and statements of that defendant.



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

Again, it is not necessary that the members have directly stated between themselves the details or purpose of the scheme, as long as the defendant has an understanding of the unlawful nature of the plan. 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. Therefore, the defendant must know of the existence and purpose of the conspiracy. Without such knowledge, the defendant cannot be guilty even if his or her acts furthered the conspiracy.



For you to find a particular defendant guilty of the crime of conspiracy, as charged in the indictment, the Government must prove all of the essential elements of this offense beyond a reasonable doubt as to that defendant; otherwise, you must find that defendant not guilty of the crime of conspiracy as charged in the indictment.

FINAL INSTRUCTION NO. 7 - ACTS AND STATEMENTS OF

CO-CONSPIRATORS





If you find beyond a reasonable doubt that a conspiracy existed and that a particular defendant was one of its members, then you may consider acts knowingly done and statements knowingly made by that defendant's co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to that defendant, even though they were done or made in the absence of and without the knowledge of that defendant. This includes acts done or statements made before that defendant joined the conspiracy. However, acts and statements that were made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other person, including a defendant, even if he or she was a conspirator.

FINAL INSTRUCTION NO. 8 - COUNT II: POSSESSION OF

METHAMPHETAMINE WITH INTENT TO DISTRIBUTE IT





The indictment also charges each defendant with the crime of possession of more than 500 grams of a mixture or substance containing a detectable amount of methamphetamine with intent to distribute it. This crime, as charged in the indictment, has four essential elements, which are the following:

One, on or about June 12, 2000, the defendant was in possession of methamphetamine.

"Possession" was defined for you in Final Jury Instruction No. 5. The prosecution does not have to prove that a defendant possessed the amount or quantity of methamphetamine charged in the indictment. However, you must ascertain whether or not the substance in question was in fact methamphetamine, as specified in the indictment.



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

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



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

Again, "intent" was defined for you in Final Jury Instruction No. 4. 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 Final Jury Instruction No. 5.



For you to find a particular defendant guilty of the crime of possession of methamphetamine 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 that defendant; otherwise, you must find that defendant not guilty of the crime of possession of methamphetamine with intent to distribute it as charged in the indictment.

FINAL INSTRUCTION NO. 9 - THEORIES OF DEFENSE



In addition to denying that the government has proved all of the essential elements of the offenses charged against them, certain defendants assert the following specific defenses:

Defendant Pablo Ortega contends that he was merely a passenger in the vehicle driven by defendant Sonya Polmanteer and owned by defendant Daniel Castro. Mere presence as a passenger in a car from which the police recover methamphetamine does not establish possession of the methamphetamine or that the passenger is a member of a conspiracy to distribute the methamphetamine. As I instructed you in Final Jury Instruction No. 5, knowledge of the presence of the item, plus control over the item or the place in which it was found, is required to establish "possession." Similarly, mere presence as a passenger does not establish that a person intentionally joined in an agreement to distribute methamphetamine. Therefore, if you find that the evidence shows that Pablo Ortega was nothing more than a mere passenger, he cannot be a member of a conspiracy. However, if his presence in the vehicle was accompanied by additional conduct that permits the inference that he participated and agreed with the others to violate the law, then you may find that Pablo Ortega was a member of a conspiracy.

Defendant Sonya Polmanteer contends that she was only acquainted with the other defendants, and that such acquaintance is not enough to establish her involvement in either of the offenses charged against her. She also contends that she did not know that there was any methamphetamine concealed in the vehicle; therefore, the fact that she was driving the vehicle does not establish her possession of the methamphetamine. You were instructed in Final Jury Instruction No. 5 that mere presence where an item was found or mere physical proximity to the item is insufficient to establish "possession" of that item. Knowledge of the presence of the item, at the same time one has control over the item or the place in which it was found, is required. Similarly, you were instructed in Final Jury Instruction No. 6 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 and that 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; rather, a defendant must know of the existence and purpose of the conspiracy. Therefore, if the evidence shows that defendant Polmanteer was merely acquainted with the other defendants and was merely driving the vehicle, but did not know of the presence of the methamphetamine, then you cannot find her guilty on either of the charges against her. However, if you find that she knew of the presence of the methamphetamine at the same time she had control over the vehicle in which it was found, then you may find that she possessed the methamphetamine. If you find that she also knew of the existence and purpose of the conspiracy, and intentionally joined in it, you may find that she is guilty of the conspiracy charge.

Defendant Polmanteer also contends that, even if she knew of the presence of the methamphetamine before the vehicle was stopped, she did not learn of its presence in such a way that she could exercise any control over the methamphetamine or withdraw from the situation before the vehicle was stopped. As explained in Final Jury Instruction No. 5, in order to establish "possession" of an item, in addition to knowledge of the presence of the item, the government must establish that, at the same time, (a) the person intended to exercise control over the item or place in which it was found; (b) the person had the power to exercise control over the item or place in which it was found; and (c) the person knew that he or she had the power to exercise control over the item or place in which it was found. Therefore, if you find that, upon learning of the presence of the methamphetamine in the vehicle, defendant Polmanteer did not intend to exercise control over the methamphetamine, or had no power to exercise control over the methamphetamine, or did not know that she had the power to exercise control over the methamphetamine, then you cannot find that she "possessed" the methamphetamine. Moreover, unless you find that defendant Polmanteer intentionally joined in an agreement to distribute methamphetamine, you cannot find that she is guilty of conspiracy to distribute methamphetamine.

Defendant Polmanteer also contends that, even if she knew that an illegal act was being committed by one or more of the other defendants, such knowledge alone is insufficient to establish her guilt on either of the offenses charged against her. You are instructed that mere proof that a defendant knew of the existence of the conspiracy is insufficient to support a conviction for conspiracy; rather, the prosecution must establish some degree of knowing involvement and cooperation or participation. Therefore, if you find that defendant Polmanteer knew of illegal acts by one or more of the defendants, but did not knowingly become involved and cooperate in such illegal acts, then you cannot find her guilty of conspiracy. However, if you find that she both knew of the illegal acts and became involved in and cooperated and participated in such acts, then you may find her guilt of conspiracy.

In addition, defendant Polmanteer contends that any conspiracy to distribute methamphetamine ended when the Highway Patrolman took absolute control of the vehicle. Thus, she contends that her conduct in attempting to separate herself from the contraband and the police is not evidence of conduct in furtherance of any conspiracy. You are instructed that a conspiracy ends when its purpose is thwarted, as long as the conduct of the conspirators is no longer directed towards accomplishment of the goal of the conspiracy, impossible or not, or when the conspiracy's main criminal objective has been accomplished or abandoned.

FINAL INSTRUCTION NO. 10 - QUANTITY OF METHAMPHETAMINE



If you find a defendant guilty of the offense charged in Count I (conspiracy), as explained in Final Jury Instruction No. 6, or Count II (possession with intent), as explained in Final Jury Instruction No. 8, or both, you must determine beyond a reasonable doubt the quantity of the methamphetamine involved in the offense or offenses for which that defendant can be held responsible. The prosecution does not have to prove that an offense involved the amount or quantity of methamphetamine charged in the indictment, although the prosecution must prove beyond a reasonable doubt the quantity of methamphetamine involved in the offense for which the defendant can be held responsible. You must ascertain whether or not the controlled substance in question was in fact methamphetamine, as specified in the indictment, and you must determine beyond a reasonable doubt the amount of the methamphetamine involved in the offense for which the defendant 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 particular defendant guilty of conspiracy to distribute methamphetamine, as charged in Count I of the indictment, and explained in Final Jury Instruction No. 6, is responsible for quantities of controlled substances he or she distributed or agreed to distribute. Such a defendant is also responsible for those quantities fellow conspirators distributed or agreed to distribute if you find that the defendant could have reasonably foreseen, at the time he or she joined the conspiracy or while the conspiracy lasted, that those distributions were a necessary or natural consequence of the conspiracy.

A defendant guilty of possession of methamphetamine with intent to distribute it, as charged in Count II of the indictment, and explained in Final Jury Instruction No. 8, is responsible for the quantity of methamphetamine he or she possessed with intent to distribute it.

For each offense for which you find a defendant guilty, you must make a separate determination of the quantity of methamphetamine for which that defendant can be held responsible, although you may find the same quantity for both offenses, if you find that defendant guilty of both offenses. For each offense for which you find a defendant guilty, you must determine the range within which the total quantity of methamphetamine for which that particular defendant can be held responsible falls. You must determine that total quantity in terms of grams of a mixture or substance containing a detectable amount of methamphetamine. Again, you must make the determination of the quantity of the methamphetamine involved in the offense or offenses for which the defendant can be held responsible beyond a reasonable doubt.

FINAL INSTRUCTION NO. 11 - IMPEACHMENT

AND TREATMENT OF CERTAIN EVIDENCE





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.

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. 12 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF



The defendants are each 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. Ortega, Mr. Castro, and Ms. Polmanteer, or the fact that they are here in court. The presumption of innocence remains with each defendant throughout the trial. That presumption alone is sufficient to find him or her not guilty. The presumption of innocence may be overcome as to a particular defendant only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against him or her.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to any defendant to prove his or 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. Therefore, the fact that these defendants did not testify 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 a particular defendant has committed each and every essential element of an offense charged in the indictment against that defendant, you must find that defendant not guilty of that offense. Keep in mind that you must give separate consideration to the evidence about each individual defendant and each offense charged. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant on each count with which he or she is charged.

FINAL INSTRUCTION NO. 13 - 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.

FINAL INSTRUCTION NO. 14 - DUTY TO DELIBERATE



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

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

Remember that if, in your individual judgment, the evidence fails to establish a particular defendant's guilt beyond a reasonable doubt on an offense charged against him or her, then that 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 that defendant on that offense. Of course, the opposite also applies. If, in your individual judgment, the evidence establishes a particular defendant's guilt beyond a reasonable doubt on an offense charged, then your vote should be for a verdict of guilty against that defendant on that charge, and if all of you reach that conclusion, then the verdict of the jury must be guilty for that 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 a crime charged.

Finally, remember that you are not partisans; you are judges--judges of the facts. Your sole interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.

You may conduct your deliberations as you choose. However, I suggest that you carefully consider all of the evidence bearing upon the questions before you. You may take all the time that you feel is necessary.

There is no reason to think that another trial would be tried in a better way or that a more conscientious, impartial, or competent jury would be selected to hear it. Any future jury must be selected in the same manner and from the same source as you. If you should fail to agree on a verdict, the case is left open and must be disposed of at some later time.

FINAL INSTRUCTION NO. 15 - DUTY DURING DELIBERATIONS



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

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

Second, if a defendant is guilty, the sentence to be imposed is my responsibility. You may not consider punishment of Pablo Ortega, Daniel Castro, or Sonya Polmanteer 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 4th day of October, 2000.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION

UNITED STATES OF AMERICA,
Plaintiff, No. CR 00-3020-MWB
vs.

VERDICT FORM
PABLO ORTEGA, DANIEL CASTRO, and SONYA POLMANTEER,
Defendants.

____________________



PABLO ORTEGA



As to the crimes charged in the indictment, we, the Jury, unanimously find defendant Pablo Ortega guilty or not guilty as follows:

COUNT DESCRIPTION VERDICT
Count 1: Conspiracy to distribute methamphetamine, as explained in Final Jury Instruction No. 6 _____ Not Guilty

_____ Guilty

If you have found defendant Pablo Ortega guilty, what is the quantity of methamphetamine involved in the conspiracy for which you find beyond a reasonable doubt that he can be held responsible, as determination of quantity of methamphetamine is explained in Final Jury Instruction No. 10? (Please make your determination of the range within which the total quantity of methamphetamine for which this defendant can be held responsible falls and indicate that total quantity in terms of grams of a mixture or substance containing a detectable amount of methamphetamine.)
500 grams or more of a mixture or substance containing a detectable amount of methamphetamine



_____
50 to 499 grams 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

_____

Count II: Possession of methamphetamine with intent to distribute it, as explained in Final Jury Instruction No. 8 _____ Not Guilty

_____ Guilty

If you have found defendant Pablo Ortega guilty, what is the quantity of methamphetamine you find beyond a reasonable doubt that he possessed with intent to distribute it, as determination of quantity of methamphetamine is explained in Final Jury Instruction No. 10? (Please make your determination of the range within which the total quantity of methamphetamine for which this defendant can be held responsible falls and indicate that total quantity in terms of grams of a mixture or substance containing a detectable amount of methamphetamine.)
500 grams or more of a mixture or substance containing a detectable amount of methamphetamine



_____
50 to 499 grams 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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DANIEL CASTRO



As to the crimes charged in the indictment, we, the Jury, unanimously find defendant Daniel Castro guilty or not guilty as follows:

COUNT DESCRIPTION VERDICT
Count 1: Conspiracy to distribute methamphetamine, as explained in Final Jury Instruction No. 6 _____ Not Guilty

_____ Guilty

If you have found defendant Daniel Castro guilty, what is the quantity of methamphetamine involved in the conspiracy for which you find beyond a reasonable doubt that he can be held responsible, as determination of quantity of methamphetamine is explained in Final Jury Instruction No. 10? (Please make your determination of the range within which the total quantity of methamphetamine for which this defendant can be held responsible falls and indicate that total quantity in terms of grams of a mixture or substance containing a detectable amount of methamphetamine.)
500 grams or more of a mixture or substance containing a detectable amount of methamphetamine



_____
50 to 499 grams 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

_____

Count II: Possession of methamphetamine with intent to distribute it, as explained in Final Jury Instruction No. 8 _____ Not Guilty

_____ Guilty

If you have found defendant Daniel Castro guilty, what is the quantity of methamphetamine you find beyond a reasonable doubt that he possessed with intent to distribute it, as determination of quantity of methamphetamine is explained in Final Jury Instruction No. 10? (Please make your determination of the range within which the total quantity of methamphetamine for which this defendant can be held responsible falls and indicate that total quantity in terms of grams of a mixture or substance containing a detectable amount of methamphetamine.)
500 grams or more of a mixture or substance containing a detectable amount of methamphetamine



_____
50 to 499 grams 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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SONYA POLMANTEER



As to the crimes charged in the indictment, we, the Jury, unanimously find defendant Sonya Polmanteer guilty or not guilty as follows:

COUNT DESCRIPTION VERDICT
Count 1: Conspiracy to distribute methamphetamine, as explained in Final Jury Instruction No. 6 _____ Not Guilty

_____ Guilty

If you have found defendant Sonya Polmanteer guilty, what is the quantity of methamphetamine involved in the conspiracy for which you find beyond a reasonable doubt that she can be held responsible, as determination of quantity of methamphetamine is explained in Final Jury Instruction No. 10? (Please make your determination of the range within which the total quantity of methamphetamine for which this defendant can be held responsible falls and indicate that total quantity in terms of grams of a mixture or substance containing a detectable amount of methamphetamine.)
500 grams or more of a mixture or substance containing a detectable amount of methamphetamine



_____
50 to 499 grams 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

_____

Count II: Possession of methamphetamine with intent to distribute it, as explained in Final Jury Instruction No. 8 _____ Not Guilty

_____ Guilty

If you have found defendant Sonya Polmanteer guilty, what is the quantity of methamphetamine you find beyond a reasonable doubt that she possessed with intent to distribute it, as determination of quantity of methamphetamine is explained in Final Jury Instruction No. 10? (Please make your determination of the range within which the total quantity of methamphetamine for which this defendant can be held responsible falls and indicate that total quantity in terms of grams of a mixture or substance containing a detectable amount of methamphetamine.)
500 grams or more of a mixture or substance containing a detectable amount of methamphetamine



_____
50 to 499 grams 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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