IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,
Plaintiff, No. CR 98-3002-MWB
vs.

PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

GARY O'DELL,
Defendant.

____________________





TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - STATEMENT OF THE CASE 2

NO. 3 - OUTLINE OF TRIAL 5

NO. 4 - PRESUMPTION OF INNOCENCE 6

NO. 5 - REASONABLE DOUBT 7

NO. 6 - DEFINITION OF EVIDENCE 8

NO. 7 - CREDIBILITY OF WITNESSES 10

NO. 8 - STIPULATED TESTIMONY 11

NO. 9 - BENCH CONFERENCES AND RECESSES 12

NO. 10 - OBJECTIONS 13

NO. 11 - NOTE-TAKING 14

NO. 12 - CONDUCT OF THE JURY 15

FINAL INSTRUCTIONS 17

NO. 1 - INTRODUCTION 17

NO. 2 - DUTY OF JURORS 18

NO. 3 - NATURE OF AN INDICTMENT 19

NO. 4 - OFFENSES CHARGED 20

NO. 5 - "INTENT," "KNOWLEDGE," AND "WILLFULNESS" 21

NO. 6 - COUNT I: CONSPIRACY TO COMMIT ILLEGAL FINANCIAL

TRANSACTIONS (MONEY LAUNDERING) 22

NO. 7 - EXPLANATION OF "AGREEMENT" FOR A CONSPIRACY

OFFENSE 25

NO. 8 - COUNTS II THROUGH VI: ILLEGAL FINANCIAL

TRANSACTIONS (MONEY LAUNDERING) 27

NO. 9 - DEFINITIONS OF TERMS RELATING TO ILLEGAL

FINANCIAL TRANSACTIONS

(MONEY LAUNDERING) 29

NO. 10 - COUNT VII: CONSPIRACY TO VIOLATE DRUG LAWS 32

NO. 11 - SUBSTANTIVE DRUG OFFENSES 34

NO. 12 - IMPEACHMENT AND TESTIMONY OF CERTAIN

WITNESSES 36

NO. 13 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF 38

NO. 14 - REASONABLE DOUBT 39

NO. 15 - DUTY TO DELIBERATE 40

NO. 16 - DUTY DURING DELIBERATIONS 42



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 Gary O'Dell. The United States charges Mr. O'Dell with seven separate offenses. First, in Count I of an indictment, the United States charges Mr. O'Dell with the crime of conspiracy to commit illegal financial transactions. Specifically, this count charges that between about 1994 and the fall of 1997, Mr. O'Dell conspired with others to conduct financial transactions involving proceeds from the distribution of controlled substances, with knowledge that the property involved represented the proceeds of some form of unlawful activity, and with the intent to promote the carrying on of the distribution of controlled substances.

Next, in Counts II through VI of the indictment, the United States charges Mr. O'Dell with five separate crimes of committing illegal financial transactions. In each of these Counts, the United States charges that Mr. O'Dell knowingly and willfully conducted a transaction involving the proceeds of specified criminal activity, knowing that the transaction involved the proceeds of some form of unlawful activity and intending by the transaction either (1) to promote the carrying on of the specified unlawful activity, or (2) to conceal or disguise the nature, location, source, ownership, or control of the proceeds. In order to assist you in keeping track of the transactions at issue, they are alleged to be the following:

Count II alleges that on or about November 21, 1995, Mr. O'Dell sent $2,390 via Western Union to Joe Ligidakis.

Count III alleges that on or about November 21, 1995, Mr. O'Dell sent a second wire transfer for $2,390 via Western Union to Joe Ligidakis.

Count IV alleges that on or about February 6, 1996, Mr. O'Dell sent a cashier's check payable to Joe Ligidakis in the amount of $2,500 via United Parcel Service (UPS).

Count V alleges that on or about February 6, 1996, Mr. O'Dell sent a second cashier's check payable to Joe Ligidakis in the amount of $2,500 via UPS.

Count VI alleges that on or about January 30, 1996, Mr. O'Dell received a cashier's check payable to Mr. O'Dell from Scott Hart in the amount of $10,000.



Finally, in Count VII, the United States charges Mr. O'Dell with the crime of conspiracy to violate drug laws. More specifically, in this count, the United States alleges that Mr. O'Dell conspired with other persons to distribute controlled substances, including methamphetamine and marijuana, or conspired to possess controlled substances, including methamphetamine and marijuana, with intent to distribute them.

These charges are set forth in what is called an indictment. An indictment is simply an accusation. It is not evidence of anything. Gary O'Dell has pleaded not guilty to the crimes charged against him, and he is presumed to be innocent unless and until the prosecution proves his guilt on an offense beyond a reasonable doubt.

Therefore, your duty is to decide from the evidence whether Gary O'Dell is guilty or not guilty of the crimes 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 that 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 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 Gary O'Dell, not anyone else, is on trial here, and that Gary O'Dell is on trial only for the crimes 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



Gary O'Dell 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. O'Dell, 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, 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 in the indictment against him, you must find the defendant not guilty of that offense.

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. Testimony previously given, which includes depositions.

3. Exhibits I admit into evidence.

4. Stipulations, which are agreements between the parties.

5. 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 the defendant. Do not give greater consideration to documents or exhibits, because of their volume and number, or the fact that they are in written form, than you give to any other evidence admitted in this case.

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 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.

If the defendant testifies, you should judge his testimony in the same manner in which you judge the testimony of any other witness.

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 - STIPULATED TESTIMONY



The prosecution and the defendant have stipulated--that is, they have agreed--that if a certain witnesses were called to testify, they would testify in the way counsel states. You should accept that stipulation as to the testimony of those witnesses just as if the testimony were to be given here in court from the witness stand.

PRELIMINARY INSTRUCTION NO. 9 - 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. 10 - 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. 11 - 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. 12 - 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 23rd day of February, 1999.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE

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. I emphasize, however, that the final instructions are not more important than the preliminary ones, nor are written instructions more important than oral ones. 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 guilty or not guilty of the crimes 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 Gary O'Dell, not anyone else, is on trial here, and that Gary O'Dell is on trial only for the crimes charged against him, not for anything else.

FINAL INSTRUCTION NO. 3 - NATURE OF AN INDICTMENT



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

The indictment charges that the offenses were 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.

Also keep in mind that the indictment charges this defendant with seven separate offenses. You must consider separately each crime charged and must return a separate verdict for each crime.



FINAL INSTRUCTION NO. 4 - OFFENSES CHARGED



The United States charges Mr. O'Dell with seven separate offenses.

First, in Count I of an indictment, the United States charges Mr. O'Dell with the crime of conspiracy to commit illegal financial transactions. Specifically, this count charges that between about 1994 and the fall of 1997, Mr. O'Dell conspired with others to conduct financial transactions involving proceeds from the distribution of controlled substances, with knowledge that the property involved represented the proceeds of some form of unlawful activity, and with the intent to promote the carrying on of the distribution of controlled substances.

Next, in Counts II through VI of the indictment, the United States charges Mr. O'Dell with five separate crimes of committing illegal financial transactions. In each of these Counts, the United States charges that Mr. O'Dell knowingly and willfully conducted a transaction involving the proceeds of specified criminal activity, knowing that the transaction involved the proceeds of some form of unlawful activity and intending by the transaction either (1) to promote the carrying on of the specified unlawful activity, or (2) to conceal or disguise the nature, location, source, ownership, or control of the proceeds. Finally, in Count VII, the United States charges Mr. O'Dell with a conspiracy to violate drug laws. More specifically, in this count, the United States alleges that Mr. O'Dell conspired with other persons to distribute controlled substances, including methamphetamine and marijuana, or conspired to possess controlled substances, including methamphetamine and marijuana, with intent to distribute them.

I will explain the elements of these offenses in more detail in the instructions that follow.

FINAL INSTRUCTION NO. 5 - "INTENT," "KNOWLEDGE,"

AND "WILLFULNESS"



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

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

An act is done "knowingly" if 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.

An act is done "willfully" if the defendant acts voluntarily and intentionally, without coercion.

FINAL INSTRUCTION NO. 6 - COUNT I: CONSPIRACY TO COMMIT

ILLEGAL FINANCIAL TRANSACTIONS (MONEY LAUNDERING)





The first crime with which Mr. O'Dell is charged is conspiracy to commit illegal financial transactions. For you to find the defendant guilty of the crime of conspiracy to commit illegal financial transactions as charged in Count I of the indictment, the prosecution must prove each of the following four essential elements beyond a reasonable doubt:

One, between about 1994 and the fall of 1997, two or more persons reached an agreement or came to an understanding to commit illegal financial transactions either with the intent to promote the carrying on of unlawful distribution of controlled substances, or knowing that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of the unlawful distribution of controlled substances.

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.

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

Four, while the agreement or understanding was in effect, a person or persons who had joined in the agreement knowingly did one or more "overt acts" for the purpose of carrying out or carrying forward the agreement or understanding.

For you to find the defendant guilty of this crime, the government must prove all of these essential elements beyond a reasonable doubt as to the defendant; otherwise, you must find the defendant not guilty.

An "overt act" done in furtherance of the conspiracy charged in Count I does not have to be in itself unlawful. It may be perfectly innocent in itself. Nor is it necessary that the defendant have personally committed the act, known about it, or witnessed it. It makes no difference which of the conspirators did the act. This is because a conspiracy is a kind of "partnership," so that under the law each member is an agent or partner of every other member and each member is bound by or responsible for the acts of every other member done to further their scheme.

It is not necessary that the government prove, beyond a reasonable doubt, that more than one act was done in furtherance of the conspiracy. It is sufficient if the government proves, beyond a reasonable doubt, one such act; but in that event, in order to return a verdict of guilty, you must unanimously agree upon which act was done.

To assist you in determining whether an "overt act" was committed as required by the fourth element above, you are advised that the indictment alleges the following overt acts:

1. The defendant and his co-conspirators made, among others, the following wire transfers in the following names from or to the Northern District of Iowa and elsewhere:

Date Amount Sender's Name Recipient's Name

11/21/95 $2,390 Dan O'Dell Janelle Gallardo (Ligidakis)

11/21/95 $2,390 Dan O'Dell Joe Ligidakis

11/27/95 $4,000 Dan O'Dell Tania Allery

11/27/95 $4,000 Dan O'Dell Rene Rodriguez

12/19/95 $6,000 Dean Oliver Tania Allery (Ligidakis)



2. The defendant and his co-conspirators obtained, among others, the following cashiers checks in the following names from financial institutions located in the Northern District of Iowa, and delivered or caused them to be delivered to other co-conspirators in Arizona, California and elsewhere:

Date Amount Bank Purchaser's Name Payee's Name

01/30/96 $10,000 First Bank Kelli Graven Gary O'Dell

02/05/96 $10,000 Norwest Bank Sue McPherren Joe Ligidakis

02/06/96 $ 2,500 Norwest Bank Gary O'Dell Joe Ligidakis

02/06/96 $ 2,500 Norwest Bank Gary O'Dell Joe Ligidakis

02/07/96 $ 5,000 First Bank Rich Blair Joe Ligidakis



To assist you in determining whether there was an agreement or understanding to commit illegal financial transactions, you may consider the elements of the substantive offense of committing illegal financial transactions stated in Final Instruction No. 8. However, keep in mind that Count I charges that Mr. O'Dell conspired to commit illegal financial transactions, not that he actually committed illegal financial transactions. It is not necessary for the government to prove that the conspirators actually succeeded in accomplishing their unlawful plan. You may also consider the definitions of terms relating to illegal financial transactions provided in Final Instruction No. 9.

FINAL INSTRUCTION NO. 7 - EXPLANATION OF "AGREEMENT"

FOR A CONSPIRACY OFFENSE





The following is an explanation of the "agreement" element of a conspiracy charge:

The government must prove that the defendant reached an agreement or understanding with at least one other person. It makes no difference whether that person is a defendant, or named in the indictment, or otherwise charged with a crime. There is no requirement that the other conspirators be named as long as you find beyond a reasonable doubt that there were other co-conspirators.

The "agreement or understanding" need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme.

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 which advances some purpose of one, does not thereby become a member.

However, a person may join in an agreement or understanding without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further, it is not necessary that 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. However, the defendant must know of the existence of the conspiracy. Without such knowledge, the defendant cannot be guilty even if his acts furthered the conspiracy.

In determining whether the alleged agreement existed, you may consider the actions and statements of all of the alleged participants, whether they are charged as defendants or not. The agreement may be inferred from all the circumstances and the conduct of the alleged participants. However, in determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of that particular defendant.



FINAL INSTRUCTION NO. 8 - COUNTS II THROUGH VI:

ILLEGAL FINANCIAL TRANSACTIONS (MONEY LAUNDERING)



In Counts II through VI of the indictment, the United States charges Mr. O'Dell with five separate crimes of committing illegal financial transactions. For you to find the defendant guilty of one of the crimes of committing an illegal financial transaction charged in Counts II through VI of the indictment, the prosecution must prove each of the following four essential elements beyond a reasonable doubt as to that particular transaction:

One, on or about the date alleged, the defendant conducted a financial transaction, that is, either sending or receiving a wire transfer of cash or obtaining or receiving a cashier's check as described in each particular count, which in any way or degree affected interstate or foreign commerce.

Count II alleges that on or about November 21, 1995, Mr. O'Dell sent $2,390 via Western Union to Joe Ligidakis.

Count III alleges that on or about November 21, 1995, Mr. O'Dell sent a second wire transfer for $2,390 via Western Union to Joe Ligidakis.

Count IV alleges that on or about February 6, 1996, Mr. O'Dell sent a cashier's check payable to Joe Ligidakis in the amount of $2,500 via United Parcel Service (UPS).

Count V alleges that on or about February 6, 1996, Mr. O'Dell sent a second cashier's check payable to Joe Ligidakis in the amount of $2,500 via UPS.

Count VI alleges that on or about January 30, 1996, Mr. O'Dell received a cashier's check payable to Mr. O'Dell from Scott Hart in the amount of $10,000.



Two, the defendant conducted the financial transaction with United States currency that involved the proceeds of the illegal distribution of controlled substances.

Three, at the time the defendant conducted the financial transaction, the defendant knew the United States currency represented the proceeds of some form of unlawful activity.

Four, the defendant conducted the financial transaction either

(A) with the intent to promote the carrying on of the unlawful distribution of controlled substances,

OR

(B) knowing that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of the unlawful distribution of controlled substances.

For you to find the defendant guilty of one of these Counts, the government must prove all of these essential elements beyond a reasonable doubt as to the transaction identified in that Count; otherwise, you must find the defendant not guilty of that Count.

In determining whether the elements of this offense have been proved, you should consider the definitions of terms relating to illegal financial transactions in Final Instruction No. 9. Also, the crimes charged in Counts II through VI of the indictment allege two purposes for each crime: The defendant allegedly conducted the financial transaction either with the intent to promote the carrying on of the unlawful distribution of controlled substances, or knowing that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership or control of the proceeds of the unlawful distribution of controlled substances. To find the defendant guilty of one of these offenses, you must agree unanimously on which of the objectives charged for that offense was or were proved beyond a reasonable doubt.

FINAL INSTRUCTION NO. 9 - DEFINITIONS OF TERMS

RELATING TO ILLEGAL FINANCIAL

TRANSACTIONS (MONEY LAUNDERING)



The following definitions apply to the offenses described in Final Instruction No. 6 and Final Instruction No. 8.

The term "conducted," as used in these instructions includes initiating, concluding or participating in initiating or concluding a transaction.



The phrase "financial transaction" as used in these instructions means a transaction which in any way or degree affects interstate commerce, and

(a) Involves the movement of funds by wire or other means (e.g. mail, commercial delivery services, motor vehicle); or

(b) Involves one or more monetary instruments (e.g. currency, bank checks, money orders).



The term "transaction," as used above, means a purchase, sale, gift, transfer, delivery or other disposition of property.



The phrase "interstate commerce," as used above, means commerce between any combination of states, including the District of Columbia.



The term "commerce" includes, among other things, travel, trade, transportation and communication.



It is not necessary for the government to show that the defendant actually intended or anticipated an "effect on interstate commerce," or that commerce was actually affected. All that is necessary is that the natural and probable consequences of the defendant's actions would be to affect interstate or foreign commerce no matter how minimally. You may find an "effect on interstate commerce" has been proved if you find from the evidence beyond a reasonable doubt that, for example, currency that represented proceeds of drug trafficking was used in a transaction, or that currency printed in Washington, D.C., was used in a transaction conducted outside of Washington, D.C. (These examples are meant to be illustrative and do not constitute an all-inclusive list of ways in which a financial transaction may affect interstate commerce).



The term "proceeds" means any property, or any interest in property, that someone acquires or retains as a result of the commission of specified unlawful activity, including drug trafficking. Proceeds can be any kind of property, not just money. So, for example, if someone sells drugs for cash and uses the cash to buy a cashier's check, the cash received is proceeds and the cashier's check is still proceeds of the crime. It does not matter whether or not the person who committed the underlying crime, and thereby acquired or retained the proceeds, was the defendant. It is a crime to conduct a financial transaction involving property that is the proceeds of a crime, even if that crime was committed by another person, as long as all of the elements of the offense are satisfied.

The government is not required to trace the property it alleges to be proceeds of drug trafficking to a particular underlying offense. It is sufficient if the government proves that the property was the proceeds of drug trafficking generally. For example, in a case involving alleged drug proceeds, the government would not have to trace the money to a particular drug offense, but could satisfy the requirement by proving that the money was the proceeds of drug trafficking generally.

The government need not prove that all of the property involved in the transaction was the proceeds of drug trafficking. It is sufficient if the government proves that at least part of the property represents such proceeds.



The phrase "specified unlawful activity" means any one of a large variety of offenses defined by statute. I instruct you as a matter of law that distributing controlled substances falls within the definition. To assist you in determining whether someone committed or attempted to commit drug trafficking, you are advised that the elements of the offense are:

One, that a person intentionally transferred a controlled substance, such as methamphetamine, cocaine or marijuana, to another; and

Two, at the time of the transfer, the person knew that it was a controlled substance.



The phrase "knew the money represented the proceeds of some form of unlawful activity" means that the defendant knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony offense under State or Federal law. Thus, the government need not prove that the defendant specifically knew that the cash involved in the financial transaction represented the proceeds of drug trafficking or any other specific offense; it need only prove that he knew it represented the proceeds of some form, though not necessarily which form, of felony under State or Federal law. I instruct you as a matter of law that distribution of controlled substances is a felony under federal law.

It is not necessary to show that the defendant intended to commit the illegal distribution of controlled substances himself; it is sufficient that in conducting a financial transaction, the defendant himself intended to make the unlawful activity easier or less difficult.

FINAL INSTRUCTION NO. 10 - COUNT VII: CONSPIRACY

TO VIOLATE DRUG LAWS





Finally, in Count VII, the United States charges Mr. O'Dell with a conspiracy to violate drug laws. More specifically, in this count, the United States alleges that Mr. O'Dell conspired with other persons to distribute controlled substances, including methamphetamine and marijuana, or conspired to possess controlled substances, including methamphetamine and marijuana, with intent to distribute them.

For you to find the defendant guilty of the crime of conspiracy to violate drug laws as charged in Count VII of the indictment, the prosecution must prove each of the following three essential elements beyond a reasonable doubt:

One, between about 1994 and the fall of 1997, two or more persons reached an agreement or came to an understanding to violate drug laws.

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.

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

If the prosecution has failed to prove all of these elements beyond a reasonable doubt against defendant O'Dell, you must find him not guilty of the offense of conspiracy to violate drug laws.

Unlike the crime of conspiracy to commit illegal financial transactions, as charged in Count I, the crime of conspiracy to violate drug laws charged in Count VII does not have an "overt act" requirement. Therefore, you do not have to find that a person or persons who had joined in the agreement knowingly did one or more "overt acts" for the purpose of carrying out or carrying forward the agreement or understanding for the prosecution to prove the elements of this conspiracy offense. However, the explanation of an "agreement" for a conspiracy offense, found in Final Instruction No. 7, is just as applicable to this conspiracy offense. Therefore, you should use that explanation of "agreement" to aid you in determining whether the defendant engaged in a conspiracy to violate drug laws.

Keep in mind that Count VII of the indictment charges a conspiracy to distribute controlled substances or to possess controlled substances with intent to distribute them, and not that the crimes of distribution or possession with intent to distribute were actually committed. The indictment charges a conspiracy to commit two separate crimes or offenses--distribution of controlled substances and possession of controlled substances with intent to distribute them. It is not necessary for the government to prove a conspiracy to commit both of those offenses. It would be sufficient if the government proves, beyond a reasonable doubt, a conspiracy to commit one of those offenses; however, in that event, in order to return a verdict of guilty, you must unanimously agree upon which of the offenses was the subject of the conspiracy--distribution, possession with intent to distribute, or both. If you cannot agree in that manner, you must find the defendant not guilty. To assist you in determining whether there was an agreement to commit drug offenses, you should consider the explanation of elements of the substantive drug offenses in Final Instruction No. 11.

FINAL INSTRUCTION NO. 11 - SUBSTANTIVE DRUG OFFENSES





To assist you in determining whether there was an agreement or understanding to distribute controlled substances, as one alternative for the first element of the conspiracy offense defined in the prior Instruction, you are advised that the crime of distributing a controlled substance has two essential elements:

One, a person intentionally transferred a controlled substance to another person; and

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

For a person to be guilty of the crime of distributing a controlled substance, the prosecution would have to prove both of these essential elements beyond a reasonable doubt as to that person; otherwise you would have to find that person not guilty of distribution of a controlled substance.

Similarly, to help you determine whether there was an agreement or understanding to possess controlled substances with intent to distribute them, as the other alternative for the first element of the conspiracy offense defined in the prior Instruction, you are advised that the crime of possession of a controlled substance with intent to distribute it has three essential elements:

One, a person was in possession of a controlled substance;

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

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

For a person to be guilty of the crime of possession of a controlled substance with intent to distribute it, the prosecution would have to prove each of these essential elements beyond a reasonable doubt as to that person; otherwise you would have to find that person not guilty of possession of a controlled substance with intent to distribute it.

Again, keep in mind that Count VII charges a conspiracy to commit these offenses, not that these offenses were actually committed.

The elements of these substantive offenses involve "possession," "distribution," and "delivery" of controlled substances. The following definitions apply in these substantive offenses:

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 dominion or 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.

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.

Finally, you are instructed that, as a matter of law, methamphetamine is a Schedule II controlled substance and marijuana is a Schedule I controlled substance.

FINAL INSTRUCTION NO. 12 - 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.

You have also heard evidence that Richard Blair, Dean Oliver, Scott Hart, Summer Hoffarth, and Joe Ligidakis have made plea agreements with the prosecution and hope to receive reductions in sentence in return for their cooperation with the prosecution in this case. Joe Holding, Julie Sorensen, and Kelly Hoffarth have received promises from the prosecution that their testimony will not be used against them in a criminal case. You should consider the testimony of these witnesses with greater caution and care than that of other witnesses, but 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 a plea agreement, a witness's hope of receiving a reduction in sentence, or the prosecution's promise not to use his or her testimony against the witness in a criminal case is for you to decide.

You cannot consider a witness's guilty plea as any evidence of this Gary O'Dell's guilt. You can consider the witness's guilty plea only for the purpose of determining how much, if at all, to rely upon the witness's testimony.

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

FINAL INSTRUCTION NO. 13 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF



Gary O'Dell 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. O'Dell or the fact that he is here in court. The presumption of innocence remains with Mr. O'Dell throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to Mr. O'Dell 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 any 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. Furthermore, the fact that the defendant did not testify must not be considered by you in any way, or even discussed, in arriving at your verdict.

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



FINAL INSTRUCTION NO. 14 - 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.

FINAL INSTRUCTION NO. 15 - 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 crimes 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. 16 - 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 Gary O'Dell 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 guilty or not 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 26th day of February, 1999.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,
Plaintiff, No. CR 98-3002-MWB
vs.

VERDICT FORM
GARY O'DELL,
Defendant.

____________________





As to the crimes charged in the indictment, we, the Jury, unanimously find defendant Gary O'Dell guilty or not guilty as indicated below:

COUNT DESCRIPTION FINAL INS. NO. VERDICT
I Conspiracy to commit illegal financial transactions No. 6 ___ Not guilty

___ Guilty

If guilty, the objective was

To promote the carrying on of drug distribution _____

To conceal or disguise the proceeds _____

Both _____

II First Western Union transfer on or about November 21, 1995, for $2,390 No. 8 ___ Not guilty

___ Guilty

If guilty, the objective was

To promote the carrying on of drug distribution _____

To conceal or disguise the proceeds _____

Both _____

III Second Western Union transfer on or about November 21, 1995, for $2,390 No. 8 ___ Not guilty

___ Guilty

If guilty, the objective was

To promote the carrying on of drug distribution _____

To conceal or disguise the proceeds _____

Both _____

IV Sending a cashier's check for $2,500 by UPS on or about February 6, 1996 No. 8 ___ Not guilty

___ Guilty

If guilty, the objective was

To promote the carrying on of drug distribution _____

To conceal or disguise the proceeds _____

Both _____

V Sending second cashier's check for $2,500 by UPS on or about February 6, 1996 No. 8 ___ Not guilty

___ Guilty

If guilty, the objective was

To promote the carrying on of drug distribution _____

To conceal or disguise the proceeds _____

Both _____

VI Receiving a cashier's check on or about January 30, 1996, for $10,000 No. 8 ___ Not guilty

___ Guilty

If guilty, the objective was

To promote the carrying on of drug distribution _____

To conceal or disguise the proceeds _____

Both _____

VII Conspiracy to violate drug laws No. 10 ___ Not guilty

___ Guilty









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