IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 99-4030-MWB

vs.



PRELIMINARY AND FINAL INSTRUCTIONS

TO THE JURY

PANCHO MARTINEZ-ROCHA,
Defendant.






TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - STATEMENT OF THE CASE

NO. 3 - OUTLINE OF TRIAL

NO. 4 - PRESUMPTION OF INNOCENCE

NO. 5 - REASONABLE DOUBT

NO. 6 - DEFINITION OF EVIDENCE

NO. 7 - CREDIBILITY OF WITNESSES

NO. 8 - BENCH CONFERENCES AND RECESSES

NO. 9 - OBJECTIONS

NO. 10 - NOTE-TAKING

NO. 11 - 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 - FIRST ALTERNATIVE: AIDING AND ABETTING

DISTRIBUTION

NO. 7 - SECOND ALTERNATIVE: POSSESSION WITH INTENT TO

DISTRIBUTE

NO. 8 - THIRD ALTERNATIVE: AIDING AND ABETTING

POSSESSION WITH INTENT TO DISTRIBUTE

NO. 9 - "LESSER INCLUDED OFFENSE" OF SIMPLE POSSESSION

NO. 10 - IMPEACHMENT AND TESTIMONY OF CERTAIN

WITNESSES

NO. 11 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF

NO. 12 - REASONABLE DOUBT

NO. 13 - DUTY TO DELIBERATE

NO. 14 - 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 defendant Pancho Martinez-Rocha. The United States charges this defendant with a single offense of violating federal drug laws on August 11, 1999, but the United States charges that the offense was committed in four alternative ways. Specifically, the United States alleges that, on or about August 11, 1999, Mr. Martinez-Rocha either distributed methamphetamine, aided and abetted the distribution of methamphetamine, possessed methamphetamine with intent to distribute it, or aided and abetted the possession of methamphetamine with intent to distribute it.

This charge is set forth in what is called an indictment. An indictment is simply an accusation. It is not evidence of anything. Pancho Martinez-Rocha has pleaded not guilty to the crime charged against him, and therefore he is presumed to be innocent unless and until the prosecution proves his guilt beyond a reasonable doubt.

Your duty is to decide from the evidence whether Pancho Martinez-Rocha is not guilty or guilty of the crime charged against him. You will find the facts from the evidence. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts that have been established by the evidence. You will then apply those facts to the law, which I 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.

Finally, please remember that only Pancho Martinez-Rocha, not anyone else, is on trial here, and that Mr. Martinez-Rocha is on trial only for the crime charged against him, not for anything else.

PRELIMINARY INSTRUCTION NO. 3 - 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. 4 - PRESUMPTION OF INNOCENCE



Pancho Martinez-Rocha is presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion that might arise from the arrest or charge of Mr. Martinez-Rocha, or the fact that he is here in court. The presumption of innocence remains with the defendant throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to the defendant only if the prosecution proves, beyond a reasonable doubt, each element of 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 the defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. The defendant is not even obligated to produce any evidence by cross-examining the witnesses who are called to testify by the prosecution.

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

PRELIMINARY INSTRUCTION NO. 5 - REASONABLE DOUBT



A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the more serious and important transactions of life. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.



PRELIMINARY INSTRUCTION NO. 6 - 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 occurs, 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.

If schedules, summaries, or charts are admitted into evidence, you may use those schedules, summaries, and charts as evidence, along with the underlying documents, which will also be admitted into evidence.

PRELIMINARY INSTRUCTION NO. 7 - 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 the defendant testifies, you should judge his testimony in the same manner in which you judge the testimony of any other witness.

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

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. 8 - 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. 9 - 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. 10 - NOTE-TAKING



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

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

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

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



PRELIMINARY INSTRUCTION NO. 11 - 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 lawsuit 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 13th day of June, 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 the defendant is not guilty or guilty of the crime charged against him. You will find the facts from the evidence. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts that have been established by the evidence. You will then apply those facts to the law, which I give you in these 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.

Finally, please remember that only Pancho Martinez-Rocha, not anyone else, is on trial here, and that Mr. Martinez-Rocha is on trial only for the crime charged against him, not for anything else.

FINAL INSTRUCTION NO. 3 - NATURE OF AN INDICTMENT



The charge against this defendant is 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. Pancho Martinez-Rocha has pleaded not guilty to the crime charged against him, and is therefore presumed to be innocent unless and until the prosecution proves his guilt beyond a reasonable doubt.

The indictment charges that the offense was committed "on or about" a certain date. 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.

In the indictment, the United States charges the defendant with a single offense of violating federal drug laws on August 11, 1999. I told you at the beginning of this trial that the United States charged that the offense was committed in four alternative ways, including personally distributing methamphetamine. However, the United States is no longer asserting that this defendant personally distributed methamphetamine. Therefore, the United States now charges that the defendant committed the offense of violating federal drug laws in three alternative ways: (1) aiding and abetting distribution of methamphetamine; (2) possession of methamphetamine with intent to distribute it; and (3) aiding and abetting possession of methamphetamine with intent to distribute it. Keep in mind that the prosecution does not have to prove all of these alternatives for the offense charged. Rather, the prosecution must only prove all of the elements of one of these alternatives beyond a reasonable doubt against the defendant in order for you to find him guilty of the offense charged in the indictment. However, you must unanimously agree upon which way or ways you find the defendant guilty of the offense. If you cannot agree in that manner, you cannot find the defendant guilty of the offense charged in the indictment. I will explain the elements of the alternatives of the offense charged in more detail in the instructions that follow.

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



"Intent" and "knowledge" are elements of the offense charged in this case. "Intent" and "knowledge" may be proved like anything else. You may consider the evidence of the defendant's words, acts, or omissions, along with all of the facts and circumstances in evidence that may aid in your determination of a 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. If you find that the prosecution has proved beyond a reasonable doubt that a defendant possessed a large quantity of methamphetamine, that is evidence from which you may, but are not required to, find or infer that a defendant intended to distribute the methamphetamine to another person.

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 acts or omissions were unlawful.

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

AND "DELIVERY"



The charge in this case also involves "possession," "distribution," and "delivery" of a controlled substance. The following definitions of these terms apply in these instructions:

The law recognizes several kinds of "possession." A person who knowingly has direct physical control over a thing, at a given time, is then in "actual possession" of it. A person who, although not in actual possession, has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in "constructive possession" of it. If one person alone has actual or constructive possession of a thing, possession is "sole." If two or more persons share actual or constructive possession of a thing, possession is "joint." Whenever the word "possession" has been used in these instructions, it includes "actual" as well as "constructive" possession and also "sole" as well as "joint" possession.

In addition, mere presence where a controlled substance was found or mere physical proximity to the controlled substance is insufficient to establish "possession" of the controlled substance. Knowledge of the presence of the controlled substance, plus control over the controlled substance or the place in which it was found, is required. Thus, in order to establish "possession" of a controlled substance, in addition to knowledge of the presence of the controlled substance, the government must establish that (a) the defendant intended to exercise control over the controlled substance or place in which it was found; (b) the defendant had the power to exercise control over the controlled substance or place in which it was found; and (c) the defendant knew that he had the power to exercise control over the controlled substance 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.

FINAL INSTRUCTION NO. 6 - FIRST ALTERNATIVE:

AIDING AND ABETTING DISTRIBUTION





As its first alternative, the United States charges that the defendant aided and abetted another in the distribution of methamphetamine on or about August 11, 1999. A defendant may be found guilty of the distribution of methamphetamine, even if he did not do every act constituting the offense, if he aided and abetted the commission of that offense by another. For you to find the defendant guilty of aiding and abetting the distribution of methamphetamine, as an alternative under the indictment, the prosecution must prove the following four elements beyond a reasonable doubt:

One, on or about August 11, 1999, the defendant knew that the distribution of methamphetamine was being committed or was going to be committed.

"Knowledge" was defined for you in Final Jury Instruction No. 4. For you to find a defendant guilty of aiding and abetting the distribution of methamphetamine, the government must prove beyond a reasonable doubt that all of the essential elements of committing the distribution of methamphetamine were committed by some person or persons. However, it is not necessary that the other person or persons be convicted or even identified.

To assist you in determining whether some person or persons committed the offense of distribution of methamphetamine, the essential elements of committing that offense are the following:

One, on or about August 11, 1999, a person intentionally distributed methamphetamine to another person.

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



Two, the defendant knowingly acted in some way for the purpose of causing, encouraging, or aiding the distribution of methamphetamine.

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 voluntarily aided and abetted the commission of an offense. A person who has no knowledge that a crime is being committed or about to be committed, but who happens to act in a way that advances some offense, does not thereby become criminally liable for that offense.



Three, the defendant knew that what was being distributed or going to be distributed was a controlled substance.

"Knowledge" was defined for you in Final Instruction No. 4. Additionally, the aider and abettor need not know what the controlled substance is if he knows that the person personally committing the offense is distributing some controlled substance.



Four, the defendant intended that some or all of the methamphetamine would be distributed to another person.

"Intent" was defined for you in Final Instruction No. 4. "Distribution" was defined for you in Final Instruction No. 5.



If the prosecution has failed to prove all four of these elements beyond a reasonable doubt as to the defendant, you cannot find the defendant guilty of the crime charged in the indictment under this "aiding and abetting distribution" alternative.

FINAL INSTRUCTION NO. 7 - SECOND ALTERNATIVE:

POSSESSION WITH INTENT TO DISTRIBUTE





As its second alternative, the United States charges that the defendant possessed methamphetamine with intent to distribute it. For you to find the defendant guilty of possession of methamphetamine with intent to distribute it, as an alternative under the indictment, the prosecution must prove each of the following three elements beyond a reasonable doubt:

One, on or about August 11, 1999, the defendant was in possession of methamphetamine.

"Possession" was defined for you in Final Instruction No. 5. The prosecution does not have to prove the defendant possessed the amount or quantity of a controlled substance that was charged in the indictment. It need only prove beyond a reasonable doubt that he possessed a measurable amount of a controlled substance. Methamphetamine is a Schedule II controlled substance. You must ascertain whether or not the substance in question was in fact methamphetamine. In so doing, you may consider all evidence in the case that may aid the determination of that issue.



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

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



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

Again, "intent" was defined for you in Final Instruction No. 4. The term "distribute" was defined for you in Final Instruction No. 5.



If the prosecution has failed to prove all three of these elements beyond a reasonable doubt as to the defendant, you cannot find the defendant guilty of the crime charged in the indictment under this "possession with intent to distribute" alternative.

FINAL INSTRUCTION NO. 8 - THIRD ALTERNATIVE:

AIDING AND ABETTING POSSESSION WITH INTENT TO DISTRIBUTE





As its final alternative, the United States contends that the defendant aided and abetted another in the possession of methamphetamine with intent to distribute it. A defendant may be found guilty of the possession of methamphetamine with intent to distribute it, even if he did not do every act constituting the offense, if he aided and abetted the commission of that offense by another. For you to find the defendant guilty of aiding and abetting the possession of methamphetamine with intent to distribute it, as an alternative under the indictment, the prosecution must prove the following four elements beyond a reasonable doubt:

One, on or about August 11, 1999, the defendant knew that the crime of possession of methamphetamine with intent to distribute it was being committed or was going to be committed.

"Knowledge" was defined for you in Final Jury Instruction No. 4. For you to find a defendant guilty of aiding and abetting the possession of methamphetamine with intent to distribute it, the government must prove beyond a reasonable doubt that all of the essential elements of possession of methamphetamine with intent to distribute it, as explained in Final Jury Instruction No. 7, were committed by some person or persons. However, it is not necessary that the other person or persons be convicted or even identified.



Two, the defendant knowingly acted in some way for the purpose of causing, encouraging, or aiding the possession of methamphetamine with intent to distribute it.

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 voluntarily aided and abetted the commission of an offense. A person who has no knowledge that a crime is being committed or about to be committed, but who happens to act in a way that advances some offense, does not thereby become criminally liable for that offense.



Three, the defendant knew that the substance to be distributed was a controlled substance.

"Knowledge" was defined for you in Final Instruction No. 4. Additionally, the defendant need not know what the controlled substance is if he knows that the substance to be distributed was some controlled substance.



Four, the defendant intended that some or all of the methamphetamine would be distributed to another person.

Again, "intent" was defined for you in Final Instruction No. 4. The term "distribute" was defined for you in Final Instruction No. 5.



If the prosecution has failed to prove all four of these elements beyond a reasonable doubt as to the defendant, you cannot find the defendant guilty of the crime charged in the indictment under this "aiding and abetting possession with intent to distribute" alternative.

FINAL INSTRUCTION NO. 9 - "LESSER INCLUDED OFFENSE"

OF SIMPLE POSSESSION



Defendant Pancho Martinez-Rocha contends that, if he was in possession of any methamphetamine, he possessed it for his own personal use and consumption only. He asserts that he had no intention of distributing methamphetamine or possessing methamphetamine with intent to distribute it. Therefore, if you find that defendant Pancho Martinez-Rocha is not guilty of violating federal drug laws under any of the three alternatives explained Final Jury Instructions Nos. 6, 7, and 8, or if, after all reasonable efforts, you are unable to reach a verdict on those alternatives, you should record that decision on the verdict form and go on to consider whether Pancho Martinez-Rocha is guilty only of the "lesser included offense" of simple possession of methamphetamine under this instruction.

The crime of simple possession of methamphetamine has two essential elements, each of which the prosecution must prove beyond a reasonable doubt as to the defendant for you to find him guilty of this "lesser included offense":

One, on or about August 11, 2000, the defendant was in possession of methamphetamine.

"Possession" was defined for you in Final Instruction No. 5.



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

"Knowledge" and "intent" were defined for you in Final Instruction No. 4.



Note that the third element of the offense of possession with intent to distribute methamphetamine, as stated in Final Instruction No. 7, is not an element of the "lesser included offense" of simple possession of methamphetamine. If the prosecution has failed to prove both of the essential elements of the crime of simple possession of methamphetamine beyond a reasonable doubt, you must find Pancho Martinez-Rocha not guilty of this "lesser included offense."

FINAL INSTRUCTION NO. 10 - IMPEACHMENT AND TESTIMONY

OF CERTAIN WITNESSES



In Preliminary Instruction No. 7, 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 are to consider the testimony of certain witnesses.

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 Clark Swihart and Moises Catinto have each been convicted of a crime or crimes. You may use that evidence only to help you decide whether to believe these witnesses and how much weight to give their testimony.

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

1. You have heard evidence that Clark Swihart had an arrangement with the government under which he and his girlfriend received various benefits. You may give the testimony of this witness such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by receiving such a benefit is for you to decide.

2. You have heard evidence that Clark Swihart hopes to receive a reduction in sentence in return for his cooperation with the prosecution in this case. If the prosecutor handling this 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 this witness such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by the witness's hope of receiving a reduction in sentence is for you to decide.

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

FINAL INSTRUCTION NO. 11 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF



Pancho Martinez-Rocha is presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion that might arise from the arrest or charge of Mr. Martinez-Rocha, or the fact that he is here in court. The presumption of innocence remains with the defendant throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to the defendant only if the prosecution proves, beyond a reasonable doubt, each element of 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 the defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. The defendant is not even obligated to produce any evidence by cross-examining the witnesses who are called to testify by the prosecution.

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

FINAL INSTRUCTION NO. 12 - 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. 13 - 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 defendant's guilt beyond a reasonable doubt, then that defendant should have your vote for a not guilty verdict. If all of you reach the same conclusion, then the verdict of the jury must be not guilty. Of course, the opposite also applies. If, in your individual judgment, the evidence establishes a defendant's guilt beyond a reasonable doubt, then your vote should be for a verdict of guilty, and if all of you reach that conclusion, then the verdict of the jury must be guilty. As I instructed you earlier, the burden is upon the prosecution to prove beyond a reasonable doubt every essential element of the 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. 14 - 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 Pancho Martinez-Rocha 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 15th day of June, 2000.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 99-4030-MWB

vs.



VERDICT FORM

PANCHO MARTINEZ-ROCHA,
Defendant.

____________________



PANCHO MARTINEZ-ROCHA VERDICT
As to the crime of violating federal drug laws, as charged in the indictment, we, the Jury, unanimously find defendant Pancho Martinez-Rocha ___ Not guilty

___ Guilty

___ No Verdict

If your verdict was guilty, mark the alternative or alternatives on which you unanimously find the defendant guilty:
a. Aiding and abetting distribution of methamphetamine, as explained in Final Jury Instruction No. 6





_____
b. Possession of methamphetamine with intent to distribute it, as explained in Final Jury Instruction No. 7



_____
c. Aiding and abetting possession of methamphetamine with intent to distribute it, as explained in Final Jury Instruction No. 8



_____
If your verdict was not guilty of violating federal drug laws under the alternatives explained in Final Jury Instructions Nos. 6, 7, and 8, or if, after all reasonable efforts, you are unable to reach a verdict under those alternatives, answer the following:
As to the "lesser included offense" of simple possession of methamphetamine, as explained in Final Jury Instruction No. 9, we, the Jury, unanimously find defendant Pancho Martinez-Rocha



___ Not guilty

___ Guilty



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