IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 97-0037-MWB

vs.

PRELIMINARY AND

FINAL INSTRUCTIONS

TO THE JURY

BENJAMIN FRANKLIN MOORE,
Defendant.

____________________

TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - GENERAL

NO. 3 - ELEMENTS OF OFFENSES

NO. 4 - OUTLINE OF TRIAL

NO. 5 - PRESUMPTION OF INNOCENCE

NO. 6 - REASONABLE DOUBT

NO. 7 - DEFINITION OF EVIDENCE

NO. 8 - CREDIBILITY OF WITNESSES

NO. 9 - BENCH CONFERENCES AND RECESSES

NO. 10 - OBJECTIONS

NO. 11 - NOTE-TAKING

NO. 12 - CONDUCT OF THE JURY

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - DUTY OF JURORS

NO. 3 - OFFENSES CHARGED

NO. 4 - "INTENT" AND "KNOWLEDGE"

NO. 5 - "POSSESSION"

NO. 6 - POSSESSION WITH INTENT TO DISTRIBUTE COCAINE BASE

NO. 7 - LESSER INCLUDED OFFENSE OF POSSESSION OF COCAINE BASE

NO. 8 - FELON IN POSSESSION OF A FIREARM OR AMMUNITION

NO. 9 - IMPEACHMENT AND TESTIMONY OF CERTAIN WITNESSES

NO. 10 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

NO. 11 - REASONABLE DOUBT

NO. 12 - DUTY TO DELIBERATE

NO. 13 - 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 - GENERAL

This is a criminal case brought by the United States of America against defendant Benjamin Franklin Moore. The United States charges Benjamin Franklin Moore with two separate offenses. First, the United States charges Mr. Moore with the crime of possession with intent to distribute cocaine base, which is commonly called "crack cocaine." Second, the United States charges Mr. Moore with the crime of being a felon in possession of a firearm or ammunition.

These charges are set forth in what is called an indictment. An indictment is simply an accusation. It is not evidence of anything. Benjamin Franklin Moore has pleaded not guilty, and 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 defendant Benjamin Franklin Moore 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 Benjamin Franklin Moore, not anyone else, is on trial here, and that Benjamin Franklin Moore is on trial only for the crimes charged against him, not for anything else.



PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF OFFENSES

To help you follow the evidence, here is a brief summary of the elements of the crimes charged. The prosecution must prove each element of an offense beyond a reasonable doubt in order for you to find the defendant guilty of that offense.

Count I of the indictment charges Benjamin Franklin Moore with the crime of possession with intent to distribute cocaine base. The elements of this charge are the following:

One, on or about March 20, 1996, Benjamin Franklin Moore was in possession of a mixture or substance containing cocaine base;

Two, Benjamin Franklin Moore either knew that he was or intended to be in possession of cocaine base;

Three, Benjamin Franklin Moore intended to distribute some or all of the cocaine base to another person.

Count II of the indictment charges Benjamin Franklin Moore with the crime of being a felon in possession of a firearm or ammunition. The elements of this charge are the following:

One, Benjamin Franklin Moore had been convicted of a crime punishable by imprisonment for a term exceeding one year;

Two, Benjamin Franklin Moore thereafter knowingly possessed either a firearm, in this case, a semi-automatic handgun, or numerous rounds of ammunition, or both;

Three, at some time prior to Benjamin Franklin Moore's possession of the firearm, ammunition, or both, it was or they were transported across a state line.

This is only a preliminary outline of the elements of the offenses charged. At the end of the trial, I will give you final written instructions on these matters. Because they are more detailed, those final instructions govern on the elements of the offenses with which Benjamin Franklin Moore is charged.



PRELIMINARY INSTRUCTION NO. 4 - OUTLINE OF TRIAL

The trial will proceed as follows:

After these preliminary instructions, the prosecutor may make an opening statement. Next, the lawyer for 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 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 some instructions on deliberations, and you will retire to deliberate on your verdict.



PRELIMINARY INSTRUCTION NO. 5 - PRESUMPTION OF INNOCENCE

Benjamin Franklin Moore 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 Benjamin Franklin Moore, or the fact that he is here in court. The presumption of innocence remains with Benjamin Franklin Moore 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 the defendant.

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. 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 element of an offense charged in the indictment against him, you must find the defendant not guilty of that offense.



PRELIMINARY INSTRUCTION NO. 6 - 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. 7 - DEFINITION OF EVIDENCE

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

Evidence is:

1. Testimony in person.

2. 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. 8 - 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 and 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.

You may hear evidence that certain witnesses have been convicted of crimes. You may use that evidence only to help you decide whether to believe those witnesses and how much weight to give their testimony.

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. 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 2nd day of March, 1998.



_____________________________

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 now, 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 defendant Benjamin Franklin Moore 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 which 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 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 Benjamin Franklin Moore, not anyone else, is on trial here, and that Benjamin Franklin Moore is on trial only for the crimes charged against him, not for anything else.



FINAL INSTRUCTION NO. 3 - OFFENSES CHARGED

This is a criminal case brought by the United States of America against defendant Benjamin Franklin Moore. The United States charges Benjamin Franklin Moore with two separate offenses. First, the United States charges Mr. Moore with the crime of possession with intent to distribute cocaine base, which is commonly called "crack cocaine." Second, the United States charges Mr. Moore with the crime of being a felon in possession of a firearm or ammunition.

These charges are set forth in what is called an indictment. As I told you at the beginning of trial, an indictment is simply an accusation. It is not evidence of anything. To the contrary, Benjamin Franklin Moore has pleaded not guilty, and is presumed to be innocent unless and until the prosecution proves his guilt on an offense charged 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.



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

"Intent," "knowledge," or both, are elements of the offenses charged in this case. "Intent" or "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 the defendant's knowledge or intent.

As to "intent," you may, but are not required to, infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted. An act is done "knowingly" if the defendant is aware of the act and does not act through ignorance, mistake, or accident. The prosecution is not required to prove that the defendant knew that his acts or omissions were unlawful.



FINAL INSTRUCTION NO. 5 - "POSSESSION"

Both offenses charged involve an element of "possession." The following definition of "possession" applies 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 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.



FINAL INSTRUCTION NO. 6 - POSSESSION WITH INTENT TO DISTRIBUTE COCAINE BASE

The first offense with which Benjamin Franklin Moore is charged is the crime of possession with intent to distribute cocaine base. In order to find the defendant guilty of this offense, the prosecution must prove each of the following three elements beyond a reasonable doubt:

One, on or about March 20, 1996, Benjamin Franklin Moore was in possession of a mixture or substance containing cocaine base.

"Possession" was defined for you in Final Instruction No. 5. In addition, mere presence where cocaine base was found or mere physical proximity to the cocaine base is insufficient to establish possession of the cocaine base. Knowledge of the presence of the cocaine base, plus control over the cocaine base or the place in which it was found, is required. Thus, in order to establish possession of the cocaine base, the government must establish that (a) the defendant intended to exercise dominion over the cocaine base; (b) the defendant had the power to exercise dominion over the cocaine base; and (c) the defendant knew that he had the power to exercise dominion over the cocaine base.

However, 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. Cocaine base, commonly called "crack cocaine," is a Schedule II controlled substance. You must ascertain whether or not the substance in question was in fact cocaine base. In so doing, you may consider all evidence in the case that may aid the determination of that issue.



Two, Benjamin Franklin Moore either knew that he was or intended to be in possession of cocaine base.

"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, Benjamin Franklin Moore intended to distribute some or all of the cocaine base to another person.

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.

If the prosecution has failed to prove each of these elements beyond a reasonable doubt, you must find the defendant not guilty of the crime of possession with intent to distribute cocaine base.



FINAL INSTRUCTION NO. 7 - LESSER INCLUDED OFFENSE OF POSSESSION OF COCAINE BASE

If your verdict under Final Instruction No. 6 on the charge of possession with intent to distribute cocaine base is not guilty, or if, after all reasonable efforts, you are unable to reach a verdict on that charge, you should record that decision on the verdict form and go on to consider whether Benjamin Franklin Moore is guilty of the "lesser included offense" of simple possession of cocaine base under this instruction. The crime of simple possession of cocaine base has two essential elements, each of which the prosecution must prove beyond a reasonable doubt:

One, on or about March 20, 1996, Benjamin Franklin Moore was in possession of a mixture or substance containing cocaine base.

This element was defined for you in Final Instruction No. 6, after the first element.



Two, Benjamin Franklin Moore either knew that he was or intended to be in possession of cocaine base.

This element was defined for you in Final Instruction No. 6, after the second element.



Note that the third element of the offense of possession with intent to distribute cocaine base stated in Final Instruction No. 6 is not an element of the "lesser included offense" of simple possession of cocaine base. If the prosecution has failed to prove each of the two essential elements of the crime of simple possession of cocaine base beyond a reasonable doubt, you must find the defendant not guilty of this "lesser included offense."



FINAL INSTRUCTION NO. 8 - FELON IN POSSESSION OF A FIREARM OR AMMUNITION

Count II of the indictment charges Benjamin Franklin Moore with the crime of being a felon in possession of a firearm or ammunition. For you to find Benjamin Franklin Moore guilty of this crime, the prosecution must prove all of the following essential elements beyond a reasonable doubt:

One, Benjamin Franklin Moore had been convicted of a crime punishable by imprisonment for a term exceeding one year.

You are instructed that the defendant, Benjamin Franklin Moore, has one or more convictions for crimes punishable by imprisonment for a term exceeding one year within the meaning of Title 18, United States Code, Section 922(g)(1).



Two, Benjamin Franklin Moore thereafter knowingly possessed either a firearm, described as a KBI Industries, Model R61, 9 mm semi-automatic handgun, serial number C 9078, or numerous rounds of .380 caliber ammunition, or both.

"Knowledge" was defined for you in Final Instruction No. 4 and "possession" was defined for you in Final Instruction No. 5. Additionally, the term "firearm" means any weapon (including a starter gun) that will or is designated to or may be readily converted to expel a projectile by the action of an explosive. You do not have to find that the defendant knowingly possessed both the firearm and the ammunition. It is an offense for a felon knowingly to possess either a firearm or ammunition. However, you must unanimously agree on whether the defendant possessed the firearm, the ammunition, or both.



Three, at some time prior to Benjamin Franklin Moore's possession of the firearm, ammunition, or both, it was or they were transported across a state line.

If you find beyond a reasonable doubt that the firearm or ammunition in question was manufactured in a state other than Iowa and that the defendant possessed that firearm or that ammunition in the State of Iowa, then you may, but are not required to, find that the firearm or ammunition was transported across a state line.

If the prosecution has failed to prove each of these elements beyond a reasonable doubt, you must find the defendant not guilty of the crime of being a felon in possession of a firearm or ammunition.



FINAL INSTRUCTION NO. 9 - IMPEACHMENT AND TESTIMONY OF CERTAIN WITNESSES

In Preliminary Instruction No. 8, 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, which is inconsistent with the witness's present testimony. If earlier statements of a witness were admitted into evidence, they were not admitted to prove the contents of those statements are 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.

When a defendant voluntarily and intentionally offers an explanation, or makes some statement before trial tending to show his innocence, and this explanation or statement is later shown to be false, you may consider whether this evidence points to a consciousness of guilt. The significance to be attached to any such evidence is a matter for you to determine.

You have heard evidence that witnesses Charles Trobaugh and Anthony Payne, as well as the defendant himself, were once convicted of a crime or crimes. A conviction of a crime is a factor you may consider in deciding whether to believe a witness and how much weight to give his or her testimony.

You have heard evidence that Charles Trobaugh has made an agreement with the government. The testimony of this witness was received in evidence and you may consider it. You may give that testimony such weight as you think it deserves. Whether or not the testimony of a witness who has made an agreement may have been influenced by the agreement is for you to determine.

You have also heard evidence that Charles Trobaugh hopes to receive a reduction in sentence already imposed in return for his cooperation with the government in this case. Before Charles Trobaugh could receive a reduction in sentence, the government would have to request a reduction and the court would have to grant 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 that witness's hope of receiving a reduced sentence is for you to decide.

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



FINAL INSTRUCTION NO. 10 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

Benjamin Franklin Moore 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 Benjamin Franklin Moore or the fact that he is here in court. The presumption of innocence remains with Benjamin Franklin Moore throughout the trial and alone is sufficient to find him not guilty. The presumption of innocence may be overcome only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against the defendant.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to the defendant, for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. A defendant is not even obligated to produce any evidence by cross-examining the witnesses who are called to testify by the prosecution.

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



FINAL INSTRUCTION NO. 11 - 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. 12 - DUTY TO DELIBERATE

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

In the course of your deliberations you should not hesitate to re-examine your own views, and to change your opinion if you are convinced it is wrong. To bring twelve minds to an unanimous result, you must examine the question 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 guilt beyond a reasonable doubt, then the 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 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. 13 - DUTY DURING DELIBERATIONS

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

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

Second, if the defendant is guilty, the sentence to be imposed is my responsibility. You may not consider punishment 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 3rd day of March, 1998.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE







IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 97-0037-MWB

vs.



VERDICT FORM

BENJAMIN FRANKLIN MOORE,
Defendant.

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COUNT I:

POSSESSION WITH INTENT TO DISTRIBUTE COCAINE BASE



As to the charge of possession with intent to distribute cocaine base, as explained in Final Instruction No. 6, we, the Jury, find defendant Benjamin Franklin Moore

Not Guilty ______ Guilty _______



Note: If you unanimously find defendant Benjamin Franklin Moore guilty of the above crime, go on to render your verdict on Count II. Do not render a verdict on the "lesser included offense" of simple possession of cocaine base. However, if you unanimously find defendant Benjamin Franklin Moore not guilty of the above crime, or if you are unable to reach a unanimous verdict on that crime and must leave your verdict on the above crime blank, you must consider whether the defendant is guilty of the "lesser included offense" of simple possession of cocaine base.









"LESSER INCLUDED OFFENSE":

POSSESSION OF COCAINE BASE



As to the "lesser included offense" of simple possession of cocaine base, as explained in Final Instruction No. 7, we, the Jury, find defendant Benjamin Franklin Moore

Not Guilty ______ Guilty _______







COUNT II:

FELON IN POSSESSION OF A FIREARM OR AMMUNITION



As to the charge of being a felon in possession of a firearm or ammunition, as explained in Final Instruction No. 8, we, the Jury, find defendant Benjamin Franklin Moore

Not Guilty ______

Guilty of possession of a firearm _______

Guilty of possession of ammunition _______

Guilty of possession of both a firearm and ammunition _______



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