IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-3060-MWB

vs.


PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

TIMOTHY JOHN VAUDT, a/k/a “Fudd,”

Defendant.

____________________


TABLE OF CONTENTS

 

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - DUTY OF JURORS

NO. 3 - REQUIREMENTS FOR PROOF: PRELIMINARY

MATTERS

NO. 4 - REQUIREMENTS FOR PROOF: COUNT 1:

CONSPIRACY TO MANUFACTURE AND

DISTRIBUTE

NO. 5 - REQUIREMENTS FOR PROOF: COUNT 1: ELEMENTS

OF THE OBJECTIVES

NO. 6 - REQUIREMENTS FOR PROOF: COUNT 2: THE

FIREARM OFFENSE

NO. 7 - PRESUMPTION OF INNOCENCE

NO. 8 - REASONABLE DOUBT

NO. 9 - OUTLINE OF TRIAL

NO. 10 - DEFINITION OF EVIDENCE

NO. 11 - CREDIBILITY OF WITNESSES

NO. 12 - BENCH CONFERENCES AND RECESSES

NO. 13 - OBJECTIONS

NO. 14 - NOTE-TAKING

NO. 15 - CONDUCT OF THE JURY

 

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - “INTENT” AND “KNOWLEDGE”

NO. 3 - COUNT 1: CONSPIRACY

NO. 4 - COUNT 1: ELEMENTS OF THE OBJECTIVES

NO. 5 - COUNT 1: ACTS AND STATEMENTS OF CO-

CONSPIRATORS

NO. 6 - COUNT 1: QUANTITY OF METHAMPHETAMINE

NO. 7 - COUNT 2: THE FIREARM OFFENSE

NO. 8 - IMPEACHMENT

NO. 9 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF

NO. 10 - REASONABLE DOUBT

NO. 11 - DUTY TO DELIBERATE

NO. 12 - 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 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 crimes 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 Timothy John Vaudt, not anyone else, is on trial here. Also, remember that this defendant is on trial only for the crimes charged against him, not for anything else.

        You must give separate consideration to each charge against the defendant. Therefore, you must return a separate, unanimous verdict on each charge against the defendant.


PRELIMINARY INSTRUCTION NO. 3 - REQUIREMENTS FOR PROOF:

PRELIMINARY MATTERS

 

 

 

        To help you follow the evidence, I will now give you a summary of the requirements for proof of the offenses charged in the Indictment, beginning with some preliminary matters.

        First, each 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 in the following instructions the elements of the offenses with which the defendant is charged.

        Second, in the Indictment, the Grand Jury alleges that the defendant sometimes goes by the name, or “alias,” of “Fudd.” The identity of the defendant as the person who committed a crime is an element of every crime; 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.

        Third, the Indictment alleges that the offenses were committed “from about” one date through another date. The prosecution does not have to prove with certainty the exact date of an offense charged. It is sufficient if the evidence establishes that an offense occurred within a reasonable time of the date alleged in the indictment.

        Fourth, in this case, the crimes charged allegedly involved “actual (pure) methamphetamine.” “Actual (pure) methamphetamine” is the methamphetamine itself—that is, either by itself or contained in a mixture or substance. A “methamphetamine mixture,” on the other hand, is a mixture or substance containing a detectable amount of “actual (pure) methamphetamine.”

        Fifth, 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. Both actual (pure) methamphetamine and a methamphetamine mixture are “controlled substances.”

        Sixth, Count 1 of the Indictment, the “conspiracy” offense, allegedly involved a specific quantity of actual (pure) methamphetamine. The prosecution does not have to prove that the conspiracy involved the amount or quantity of actual (pure) methamphetamine charged in the indictment. However, if you find the defendant guilty of that offense, then you must determine the following matters beyond a reasonable doubt: (1) whether the offense involved the controlled substance alleged in the Indictment (that is, actual (pure) methamphetamine), and if so, (2) the total quantity, in grams, of the controlled substance involved in the offense 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. You do not need to make a such a quantity determination if you find the defendant guilty of Count 2.

        I will now give you more specific instructions about the offenses charged in the Indictment. However, please remember that these instructions on the charged offenses provide only a preliminary outline of the requirements for proof of these offenses. At the end of the trial, I will give you final written instructions on these matters. Because the final written instructions are more detailed, you should rely on those final instructions, rather than these preliminary instructions, where there is a difference.


PRELIMINARY INSTRUCTION NO. 4 - REQUIREMENTS FOR PROOF:

COUNT 1: CONSPIRACY TO MANUFACTURE AND DISTRIBUTE

 

 

 

        Count 1 of the Indictment charges that, from about September 1999 through about August 21, 2003, Mr. Vaudt knowingly and unlawfully conspired with other persons, known and unknown to the Grand Jury, to commit either or both of the following separate drug-trafficking offenses: (1) the manufacture of 50 grams or more of actual (pure) methamphetamine (manufacturing methamphetamine); and (2) the distribution of 50 grams or more of actual (pure) methamphetamine within 1,000 feet of a public playground, identified as Forbes-Vetter Memorial Park in Rinard, Iowa (distributing methamphetamine within 1,000 feet of a public playground).

 

        Elements Of The Conspiracy

        For you to find the defendant guilty of this “conspiracy” offense, the prosecution must prove all of the following essential elements beyond a reasonable doubt:

        One, from about September 1999 through about August 21, 2003, two or more persons reached an agreement or came to an understanding to commit either or both of the offenses alleged to be objectives of the conspiracy;

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

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

 

        Objectives Of The Conspiracy

        The indictment alleges that the conspirators agreed to commit two separate offenses. However, it is not necessary for the prosecution to prove that the conspirators agreed to commit both offenses. Rather, it would be sufficient if the prosecution proves, beyond a reasonable doubt, an agreement to commit either of the offenses alleged, or an agreement to commit both of those offenses. However, in order to return a verdict of guilty on the “conspiracy” offense, you must unanimously agree upon which offense or offenses were objectives of the conspiracy. If you cannot agree in that manner, then you must find the defendant not guilty of the “conspiracy” offense.

        To assist you in determining whether there was an agreement to commit the offenses alleged to be objectives of the conspiracy, you should consider the elements of those offenses. The elements of the offenses alleged to be objectives of the conspiracy are explained for you in the following Instruction.

        To find the defendant guilty of the “conspiracy” charge, you do not have to find that either of the offenses alleged to be objectives 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. If there was no agreement, there was no conspiracy. Similarly, if you find that there was an agreement, but you find that the defendant did not join in that agreement, or did not know the purpose of the agreement, then you cannot find him guilty of the “conspiracy” charge.


PRELIMINARY INSTRUCTION NO. 5 - REQUIREMENTS FOR PROOF:

COUNT 1: ELEMENTS OF THE OBJECTIVES

 

 

 

        The Grand Jury charges that the defendant conspired to commit either or both of the following offenses: (1) the manufacture of 50 grams or more of actual (pure) methamphetamine (manufacturing methamphetamine); and (2) the distribution of 50 grams or more of actual (pure) methamphetamine within 1,000 feet of a public playground, identified as Forbes-Vetter Memorial Park in Rinard, Iowa (distributing methamphetamine within 1,000 feet of a public playground). 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.

 

        Manufacturing methamphetamine

        The elements of manufacturing actual (pure) methamphetamine are the following:

        One, on or about the date alleged in the count in question, a person manufactured actual (pure) methamphetamine; and

        Two, that person knew that he or she was, or intended to be, manufacturing a controlled substance.

 

        Distributing methamphetamine within 1,000 feet of a public playground

        The elements of distributing methamphetamine within 1,000 feet of a public playground are the following:

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

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

        (3) the distribution took place within 1,000 feet of the real property comprising a “public playground.”

        The Indictment identifies the “public playground” in question in the second objective of the conspiracy as Forbes-Vetter Memorial Park in Rinard, Iowa. For the “conspiracy” offense charged in Count 1, the prosecution does not have to prove that the co-conspirators, or the defendant, agreed, knew, or intended that the distribution would take place within 1,000 feet of the “public playground.” 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 the “public playground” identified in the indictment.

 

        Again, 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.


PRELIMINARY INSTRUCTION NO. 6 - REQUIREMENTS FOR PROOF:

COUNT 2: THE FIREARM OFFENSE

 

 

 

        Count 2 of the Indictment charges that, from about September 1999, through about August 21, 2003, Mr. Vaudt used or carried a firearm during and in relation to the conspiracy charged in Count 1.

 

        Elements

        For you to find the defendant guilty of this “firearm” offense, as charged in Count 2 of the Indictment, the government must prove the following two essential elements beyond a reasonable doubt:

        One, the defendant committed the drug-trafficking conspiracy charged in Count 1 of the Indictment; and

        Two, during and in relation to the commission of that crime, the defendant knowingly used or carried a firearm.

 

        Definitions

        The Indictment charges that the firearm involved in this offense was one Iver Johnson Target .22 caliber handgun, serial number HG7719, or another revolver. The Indictment also charges that the firearm was “used or carried during and in relation to” the conspiracy charged in Count 1.

        The prosecution does not have to prove that the revolver was both “used” and “carried.” Rather, it is sufficient if the prosecution proves that the defendant either “used” or “carried” the firearm. The term “used a firearm” means that the firearm was actively employed in the course of the commission of the “conspiracy” offense. “Use” requires something more than inert presence, mere possession, or storage of the firearm near drugs or drug proceeds, or placement of the weapon “at the ready.” The term “carried a firearm” means that, during the commission of the crime, the defendant had a firearm on or about his person or transported a firearm in the passenger compartment of a car. The firearm was used or carried “during and in relation to” the “conspiracy” offense if it had some purpose or effect with respect to that offense; in other words, it was used or carried in a way that effectuated the crime. However, the firearm need not have a role as a weapon in the crime. On the other hand, the presence or involvement of the firearm cannot be the result of accident or coincidence.


PRELIMINARY INSTRUCTION NO. 7 - PRESUMPTION

OF INNOCENCE

 

 

        The charges against the defendant are set out in an “indictment.” As I explained during jury selection, an “indictment” is simply an accusation. It is not evidence of anything. Defendant Timothy John Vaudt has pled not guilty to the charges 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 a crime charged against him.

        The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to the defendant 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 an offense charged against him in the Indictment, you must find him not guilty of that offense.


PRELIMINARY INSTRUCTION NO. 8 - REASONABLE DOUBT

 

 

        A reasonable doubt may arise from the evidence produced by either the prosecution or the defense, keeping in mind that the defendant never has the burden or duty of calling any witnesses or producing any evidence. It may also arise from the prosecution’s lack of evidence. A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the more serious and important transactions of life. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.

 


PRELIMINARY INSTRUCTION NO. 9 - 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. 10 - 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 necessarily determined by the number of witnesses testifying as to the existence or non-existence of any fact. Also, the weight of the evidence is not necessarily determined merely by the number or volume of documents or exhibits. The weight of evidence depends upon its quality, which means how convincing it is, and not necessarily upon its quantity. For example, you may choose to believe the testimony of one witness, if you find that witness to be convincing, even if a number of other witnesses contradict his or her testimony. The quality and weight of the evidence are for you to decide.


PRELIMINARY INSTRUCTION NO. 11 - 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 see or hear 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. 12 - 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. 13 - 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. 14 - 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. 15 - 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 26th day of July, 2004.

                                                     mwbjustsig.gif

 

 

 

 

 

                                                    __________________________________

                                                    MARK W. BENNETT

                                                    CHIEF JUDGE, U. S. DISTRICT COURT

                                                    NORTHERN DISTRICT OF IOWA


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 offenses charged in this case and, therefore, must be proved beyond a reasonable doubt. “Intent” and “knowledge” may be proved like anything else. Therefore, you may consider any statements made or acts done by the defendant, and all of the facts and circumstances in evidence, to aid you in the determination of the defendant’s knowledge or intent. An act is done “knowingly” if the defendant is aware of the act and does not act through ignorance, mistake, or accident. The prosecution is not required to prove that the defendant knew that his acts or omissions were unlawful.


FINAL INSTRUCTION NO. 3 - COUNT 1: CONSPIRACY

 

 

 

        Count 1 of the Indictment charges that, from about September 1999 through about August 21, 2003, Mr. Vaudt knowingly and unlawfully conspired with other persons, known and unknown to the Grand Jury, to commit either or both of the following separate drug-trafficking offenses: (1) manufacturing methamphetamine; and (2) distributing methamphetamine within 1,000 feet of a public playground. For you to find the defendant guilty of this “conspiracy” offense, the prosecution must prove all of the following essential elements beyond a reasonable doubt as to the defendant:

        One, from about September 1999 through about August 21, 2003, two or more persons reached an agreement or came to an understanding to commit either or both of the offenses alleged to be 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 the 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. 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 of the circumstances and the conduct of the alleged participants.

The indictment alleges that the conspirators agreed to commit two separate offenses. However, it is not necessary for the prosecution to prove that the conspirators agreed to commit both offenses. Rather, it would be sufficient if the prosecution proves, beyond a reasonable doubt, an agreement to commit either of the offenses alleged, or an agreement to commit both of those offenses. However, in order to return a verdict of guilty on the “conspiracy” offense, you must unanimously agree upon which offense or offenses were objectives of the conspiracy. If you cannot agree in that manner, then you must find the defendant not guilty of the “conspiracy” offense.

To assist you in determining whether there was an agreement to commit the offenses alleged to be objectives of the conspiracy, you should consider the elements of those offenses. The elements of the offenses alleged to be objectives of the conspiracy are explained for you in Final Jury Instruction No. 4.

Keep in mind that, in the “conspiracy” charge in the Indictment, the Grand Jury charges that the defendant conspired to commit the offenses identified, not that these offenses were 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 either of the alternatives 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, or mere knowledge that a controlled substance is being manufactured or distributed, 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, as charged in Count 1 of 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 him not guilty of the “conspiracy” offense charged in the Indictment.

        In addition, if you find the defendant guilty of this “conspiracy” offense, then you must also determine beyond a reasonable doubt the quantity of actual (pure) methamphetamine actually involved in the conspiracy for which the defendant can be held responsible, as explained in Final Jury Instruction No. 6.


FINAL INSTRUCTION NO. 4 - COUNT 1: ELEMENTS

OF THE OBJECTIVES


 

 

        The Grand Jury charges that the defendant conspired to commit either or both of the following offenses: (1) the manufacture of 50 grams or more of actual (pure) methamphetamine (manufacturing methamphetamine); and (2) the distribution of 50 grams or more of actual (pure) methamphetamine within 1,000 feet of a public playground, identified as Forbes-Vetter Memorial Park in Rinard, Iowa (distributing methamphetamine within 1,000 feet of a public playground). 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.

 

        Manufacturing methamphetamine

        The elements of manufacturing actual (pure) methamphetamine are the following:

        (1) a person manufactured actual (pure) methamphetamine; and

        (2) that person knew that he or she was, or intended to be, manufacturing a controlled substance.

 

        Distributing methamphetamine within 1,000 feet of a public playground

        The elements of distributing methamphetamine within 1,000 feet of a public playground are the following:

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

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

        (3) the distribution took place within 1,000 feet of the real property comprising a “public playground.”

        The Indictment identifies the “public playground” in question in the second objective of the conspiracy as Forbes-Vetter Memorial Park in Rinard, Iowa. For the “conspiracy” offense charged in Count 1, the prosecution does not have to prove that the co-conspirators, or the defendant, agreed, knew, or intended that the distribution would take place within 1,000 feet of the “public playground.” 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 the “public playground” identified in the indictment. Evidence that distribution of a controlled substance pursuant to the conspiracy actually occurred at a location within 1,000 feet of a “public playground” 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 “public playground.”

        You must determine whether Forbes-Vetter Memorial Park fits the definition of a “public playground.” A “public 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.”

        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 “public playground.” The 1,000-foot zone can be measured in a straight line from the “public playground,” irrespective of actual pedestrian travel routes.

 

        Again, 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.


FINAL INSTRUCTION NO. 5 - COUNT 1: ACTS AND STATEMENTS

OF CO-CONSPIRATORS


 

 

        If you find beyond a reasonable doubt that the 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. 6 - COUNT 1: QUANTITY

OF METHAMPHETAMINE

 

 

 

        Count 1 of the Indictment charges that the conspiracy offense involved a specific quantity of actual (pure) methamphetamine. The prosecution does not have to prove that the conspiracy offense involved the amount or quantity of actual (pure) methamphetamine charged in the Indictment. However, if you find the defendant guilty of the conspiracy offense, then you must also determine the following matters beyond a reasonable doubt: (1) whether the conspiracy involved actual (pure) methamphetamine, as alleged in the Indictment, and if so, (2) the total quantity, in grams, of the actual (pure) methamphetamine involved in that 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.

 

        Responsibility

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

        Similarly, a defendant guilty of conspiracy to distribute actual (pure) methamphetamine within 1,000 feet of a public playground is responsible for the quantities of methamphetamine that he actually distributed or agreed to distribute within 1,000 feet of a public playground. Such a defendant is also responsible for those quantities of methamphetamine that fellow conspirators distributed or agreed to distribute within 1,000 feet of a public playground, if you find that the defendant could have reasonably foreseen, at the time that he joined the conspiracy or while the conspiracy lasted, that those prohibited acts were a necessary or natural consequence of the conspiracy.

 

        Determination of quantity and verdict

        You must determine the total quantity of methamphetamine for which the defendant can be held responsible in terms of grams of actual (pure) methamphetamine. You must then indicate in the Verdict Form the range within which that total quantity falls. Thus, for Count 1, you must determine beyond a reasonable doubt whether the defendant guilty of the conspiracy offense can be held responsible for 50 grams or more, 5 grams or more but less than 50 grams, or less than 5 grams of actual (pure) methamphetamine.

        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 28.34 grams.

        You do not need to make a such a quantity determination if you find the defendant guilty of Count 2.


FINAL INSTRUCTION NO. 7 - COUNT 2:

THE FIREARM OFFENSE

 

 

        Count 2 of the Indictment charges that, from about September 1999, through about August 21, 2003, Mr. Vaudt used or carried a firearm during and in relation to the conspiracy charged in Count 1. For you to find the defendant guilty of this “firearm” offense, as charged in Count 2 of the Indictment, the government must prove the following two essential elements beyond a reasonable doubt:

        One, the defendant committed the drug-trafficking conspiracy charged in Count 1 of the Indictment.

In order to determine whether the defendant committed the “conspiracy” offense, you should refer to Final Jury Instruction No. 3.

 

        Two, during and in relation to the commission of that crime, the defendant knowingly used or carried a firearm.

The Indictment charges that the firearm involved in this offense was one Iver Johnson Target .22 caliber handgun, serial number HG7719, or another revolver. The Indictment charges that the firearm was “used or carried during and in relation to” the conspiracy charged in Count 1.

The prosecution does not have to prove that the revolver was both “used” and “carried.” Rather, it is sufficient if the prosecution proves that the defendant either “used” or “carried” the firearm. The term “used a firearm” means that the firearm was actively employed in the course of the commission of the “conspiracy” offense. “Use” requires something more than inert presence, mere possession, or storage of the firearm near drugs or drug proceeds, or placement of the weapon “at the ready.” The term “carried a firearm” means that, during the commission of the crime, the defendant had a firearm on or about his person or transported a firearm in the passenger compartment of a car. The firearm was used or carried “during and in relation to” the “conspiracy” offense if it had some purpose or effect with respect to that offense; in other words, it was used or carried in a way that effectuated the crime. However, the firearm need not have a role as a weapon in the crime. On the other hand, the presence or involvement of the firearm cannot be the result of accident or coincidence.

In determining whether the defendant used or carried a firearm during and in relation to the drug conspiracy, you may consider all of the evidence received in the case in light of factors including the nature of the underlying drug conspiracy alleged, the proximity of the defendant to the firearm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm

 

        For you to find defendant Vaudt guilty of the “firearm” offense charged in Count 2 of the indictment, the prosecution must prove both of the essential elements of the offense beyond a reasonable doubt against him; otherwise, you must find him not guilty of the firearm offense charged in Count 2 of the Indictment.


FINAL INSTRUCTION NO. 8 - IMPEACHMENT

 

 

 

        In Preliminary Instruction No. 11, 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.”

        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 witnesses Teresa Schneider, Joshua Schneider, Gary Riedesel, Angelia Powell, Jason McGuire, Charles DeWitt, and Mark Mullins have each been convicted of a crime. You may use that evidence only to help you decide whether or not to believe these witnesses and how much weight to give their testimony.

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

1.You have heard evidence that Teresa Schneider, Joshua Schneider, Gary Riedesel, Angelia Powell, and Mark Mullins are testifying pursuant to plea agreements and hope to receive reductions in their sentences in return for their 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 may give the testimony of such witnesses such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by the witness’s hope of receiving a reduction in sentence is for you to decide.

2.You have also heard testimony from Teresa Schneider, Joshua Schneider, Gary Riedesel, Angelia Powell, Jason McGuire, Charles DeWitt, Mark Mullins, and Kyle Kuhn that they participated in the crime charged against the defendant. Their testimony was received in evidence and you may consider it. You may give the testimony of such a witness such weight as you think it deserves. Whether or not the testimony of such a witness may have been influenced by his or her desire to please the government or to strike a good bargain with the government about his or her own situation is for you to determine.

3.You have also heard evidence that Kyle Kuhn is testifying in the hope that the government will not file charges against him. His testimony was received in evidence and you may consider it. You may give his testimony such weight as you think it deserves. Whether or not his testimony may have been influenced by his hope that the government will not file charges against him is for you to determine.

4.You have heard evidence that Jason McGuire and Charles DeWitt have an arrangement with the government under which each will receive a benefit, in that they will be prosecuted in state court rather than federal court, for providing information to the government. Their testimony was received in evidence and you may consider it. You may give the testimony of these witnesses such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by receiving such a benefit is for you to decide.

5.You have heard evidence that Teresa Schneider, Joshua Schneider, Gary Riedesel, Angelia Powell, Jason McGuire, Charles DeWitt, Mark Mullins, and Kyle Kuhn used or were addicted to addictive drugs during the period of time about which the witness testified. You should consider whether the testimony of these witnesses might have been affected by their drug use at the time of the events about which they testified. You should not convict the defendant upon the unsupported testimony of such a witness, unless you believe that witness’s testimony beyond a reasonable doubt.

        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. 9 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF

 

 

        Timothy John Vaudt 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 this 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 an offense 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 a charged offense, you must find him not guilty of that offense.


FINAL INSTRUCTION NO. 10 - REASONABLE DOUBT

 

        A reasonable doubt may arise from the evidence produced by either the prosecution or the defendant, keeping in mind that the defendant never has the burden or duty of calling any witnesses or producing any evidence. It may also arise from the prosecution’s lack of evidence. A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the more serious and important transactions of life. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.


FINAL INSTRUCTION NO. 11 - DUTY TO DELIBERATE

 

 

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

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

        Remember that if, in your individual judgment, the evidence fails to establish the defendant’s guilt beyond a reasonable doubt on a charged offense, 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 a charged offense, then your vote should be for a “guilty” verdict against the defendant on that offense, and if all of you reach that conclusion, then the verdict of the jury must be “guilty” for the defendant on that offense. As I instructed you earlier, the burden is upon the prosecution to prove beyond a reasonable doubt every essential element of a charged offense.

        You must you return a separate, unanimous verdict against the defendant on each offense.

        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. 12 - DUTY DURING DELIBERATIONS

 

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

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

        Second, if the defendant is guilty, the sentence to be imposed is my responsibility. You may not consider punishment of defendant Timothy John Vaudt 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 against the defendant on each offense, 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. 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 28th day of July, 2004.

 

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                                                    __________________________________

                                                    MARK W. BENNETT

                                                    CHIEF JUDGE, U. S. DISTRICT COURT

                                                    NORTHERN DISTRICT OF IOWA


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION


UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 03-3060-MWB

vs.


VERDICT FORM

TIMOTHY JOHN VAUDT, a/k/a “Fudd,”

Defendant.

____________________



        As to defendant Timothy John Vaudt, we, the Jury, unanimously find as follows:


COUNT 1: CONSPIRACY

VERDICT

Step 1:

Verdict

On the charge of conspiracy, as charged in Count 1 of the Indictment and explained in Final Jury Instruction No. 3, please mark your verdict. (If you found the defendant “not guilty,” do not consider the questions in Step 2. Also, if you found the defendant “not guilty” of the “conspiracy” offense, you cannot find him guilty of the “firearm” offense in Count 2. Therefore, please do not answer any more sections of the Verdict Form and instead sign the Verdict Form and notify the Court Security Officer that you have reached a verdict. However, if you found the defendant “guilty,” please answer the questions in Step 2 of this section of the Verdict Form and also consider your verdict on Count 2.)


____ Not Guilty


____ Guilty

Step 2:

Quantity of Metham-phetamine

If you found the defendant “guilty” of the “conspiracy” offense, please indicate (a) the objective or objectives of the conspiracy (manufacturing, distributing within 1,000 feet of a public playground, or both), and (b) the quantity of actual (pure) methamphetamine involved in the objective(s) for which the defendant can be held responsible, as explained in Final Jury Instruction No. 6.

 

(a) objective(s)

(b) quantity of actual (pure) methamphetamine

____ Manufacturing

___ 50 grams or more

___ 5 grams or more but less than 50

___ Less than 5 grams

____ Distributing within 1,000 feet of a public playground

___ 50 grams or more

___ 5 grams or more but less than 50

___ Less than 5 grams

COUNT 2: THE FIREARM OFFENSE

VERDICT

Step 1:

Verdict

On the firearm offense charged in Count 2 of the Indictment and explained in Final Jury Instruction No. 7, please mark your verdict. (If you found the defendant “not guilty,” do not consider the question in Step 2 Instead, sign the Verdict Form and notify the Court Security Officer that you have reached a verdict. However, if you found the defendant “guilty,” please answer the question in Step 2.)


____ Not Guilty


____ Guilty

Step 2:

If you found the defendant “guilty” of this firearm offense, please indicate the alternative(s) under which you find him guilty (“using” or “carrying” a firearm “during and in relation to” the conspiracy, or both).

 

___ “Using”


a firearm during and in relation to the conspiracy

____ “Carrying”



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