IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 01-3032-MWB

vs.



PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

KARL KESSLER and ADELE HYLBACK,
Defendants.






TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - DUTY OF JURORS 2

NO. 3 - ELEMENTS OF THE OFFENSES 3

NO. 4 - OUTLINE OF TRIAL 9

NO. 5 - PRESUMPTION OF INNOCENCE 10

NO. 6 - REASONABLE DOUBT 11

NO. 7 - DEFINITION OF EVIDENCE 12

NO. 8 - CREDIBILITY OF WITNESSES 13

NO. 9 - BENCH CONFERENCES AND RECESSES 15

NO. 10 - OBJECTIONS 16

NO. 11 - NOTE-TAKING 17

NO. 12 - CONDUCT OF THE JURY 18

FINAL INSTRUCTIONS 20

NO. 1 - INTRODUCTION 20

NO. 2 - "INTENT"AND "KNOWLEDGE" 21

NO. 3 - COUNTS 1 & 3: CONSPIRACY 22

NO. 4 - ACTS AND STATEMENTS OF CO-CONSPIRATORS 25

NO. 5 - COUNTS 2 & 4: MANUFACTURING 26

NO. 6 - QUANTITY OF METHAMPHETAMINE 31

NO. 7 - COUNT 5: DRUG USER IN POSSESSION OF A FIREARM 33

NO. 8 - SPECIFIC DEFENSES 36

NO. 9 - IMPEACHMENT 38

NO. 10 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF 40

NO. 11 - REASONABLE DOUBT 41

NO. 12 - DUTY TO DELIBERATE 42

NO. 13 - DUTY DURING DELIBERATIONS 44



VERDICT FORM

PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



Members of the jury, these preliminary instructions are given to help you better understand the trial and your role in it. Consider these instructions, together with all written and oral instructions given to you during or at the end of the trial, and apply them as a whole to the facts of the case.

PRELIMINARY INSTRUCTION NO. 2 - DUTY OF JURORS



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

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, based solely on the evidence, your common sense, and the law as I give it to you. Do not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be. Similarly, do not conclude from any ruling or other comment I may make that I have any opinions on how you should decide the case.

Please remember that only defendants Karl Kessler and Adele Hylback, not anyone else, are on trial here. These defendants are on trial only for the crimes charged against them, not for anything else.

Finally, you must give separate consideration to the evidence about each defendant and each charge against that defendant. Each defendant is entitled to be treated separately and to have each charge against him or her considered separately. Therefore, you must return a separate, unanimous verdict on each charge against each defendant.

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF THE OFFENSES



To help you follow the evidence, I will give you a summary of the elements of each kind of offense charged in the indictment. Each offense consists of "elements," which must be proved beyond a reasonable doubt. I must first explain some preliminary matters concerning the elements of the offenses charged.

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

The indictment charges that the offenses were committed "on" or "on or about" a certain date, or "between about" two dates. The prosecution does not have to prove with certainty the exact date of an offense charged. It is sufficient if the evidence establishes that an offense occurred within a reasonable time of the date alleged in the indictment.

In this instruction, and all of the other instructions in this case, I will refer to methamphetamine as "pure methamphetamine," and I will refer to a mixture or substance containing a detectable amount of methamphetamine as a "methamphetamine mixture."

When I refer to a "controlled substance," I mean any drug or narcotic the manufacture, possession, possession with intent to distribute, or distribution of which is prohibited or regulated by federal law. Pure methamphetamine and a methamphetamine mixture are both "controlled substances."

I will now give you a summary of the elements of the kinds of offenses charged in the indictment.



COUNTS 1 & 3: CONSPIRACY

Count 1 of the indictment charges that, from between January 2000 through May 2000, each of the defendants conspired to commit either or both of the following offenses: (a) manufacturing or distributing 5 grams or more of methamphetamine, or (b) manufacturing or distributing 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine. Similarly, Count 3 of the indictment charges that, during about March 2001, defendant Karl Kessler conspired to commit either or both of the following offenses: (a) manufacturing or distributing 5 grams or more of methamphetamine, or (b) manufacturing or distributing 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine. Thus, the two "conspiracy" offenses have the same objectives, but differ in the times the conspiracies allegedly existed, and only defendant Kessler is charged with the conspiracy charged in Count 3.

Elements

For you to find a defendant guilty of a "conspiracy" offense, as charged in either Count 1 or Count 3 of the indictment, the government must prove the following three essential elements beyond a reasonable doubt as to that defendant:

One, during the time alleged in the specific "conspiracy" count, two or more persons reached an agreement or came to an understanding to commit one or both of the following offenses: manufacturing or distributing pure methamphetamine, or manufacturing or distributing a methamphetamine mixture;

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

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

Objectives of the conspiracies

To assist you in determining whether there was an agreement to commit the "manufacturing" or "distribution" offenses that were allegedly the objectives of the conspiracies, you should consider the elements of those offenses. The elements of manufacturing pure methamphetamine or a methamphetamine mixture are the following: (1) a person manufactured either pure methamphetamine or a methamphetamine mixture, and (2) that person knew that he or she was, or intended to be, manufacturing a controlled substance. The elements of distributing pure methamphetamine or a methamphetamine mixture are the following: (1) a person intentionally distributed pure methamphetamine or a methamphetamine mixture to another; and (2) at the time of the distribution, the person knew that what he or she was distributing was a controlled substance. To find a defendant guilty of a conspiracy, as charged in either Count 1 or Count 3, you do not have to find that any offense identified as an objective of the conspiracy was actually committed.



COUNTS 2 & 4: MANUFACTURING

Count 2 of the indictment charges that, during about May 2000, each of the defendants knowingly and intentionally manufactured, attempted to manufacture, or aided and abetted an attempt to manufacture 5 grams or more of methamphetamine. Similarly, Count 4 of the indictment charges that, on or about March 30, 2001, defendant Karl Kessler knowingly and intentionally manufactured, attempted to manufacture, or aided and abetted an attempt to manufacture 5 grams or more of methamphetamine. Thus, the two "manufacturing" offenses differ in the times the offenses were allegedly committed and only defendant Kessler is charged with the manufacturing offense charged in Count 4.

A defendant may be found guilty of a "manufacturing" offense, as charged in either Count 2 or Count 4 of the indictment, under one or more of the following three alternatives: personally committing the offense, personally attempting to commit the offense, or aiding and abetting another in an attempt to commit the offense. I will explain the elements of each of these alternatives in turn.

First alternative: Personally manufacturing methamphetamine

For you to find a defendant guilty of manufacturing pure methamphetamine under this "personal commission" alternative, the prosecution must prove each of the following essential elements beyond a reasonable doubt as to that defendant:

One, on or about the date alleged in the specific "manufacturing" count, the defendant manufactured pure methamphetamine; and

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

Second alternative: Attempting to manufacture methamphetamine

A defendant may be found guilty of manufacturing methamphetamine, even if he or she attempts, but does not succeed, in manufacturing methamphetamine. For you to find a defendant guilty of a manufacturing offense under this "attempt" alternative, the prosecution must prove the following essential elements beyond a reasonable doubt as to that defendant:

One, the defendant intended to manufacture a controlled substance;

Two, the defendant knew that the material he or she intended to manufacture was a controlled substance; and

Three, on or about the date alleged in the specific "manufacturing" count, the defendant voluntarily and intentionally carried out some act that was a substantial step toward manufacturing pure methamphetamine.

Third alternative: Aiding and abetting an attempt to manufacture methamphetamine

A defendant may also be found guilty of manufacturing methamphetamine even if he or she did not personally do every act constituting that offense, as defined under the first alternative above, if he or she aided and abetted another in an attempt to commit that offense. For you to find a defendant guilty of a manufacturing offense under this "aiding and abetting" alternative, the prosecution must prove the following essential elements beyond a reasonable doubt as to that defendant:

One, on or about the date alleged in the specific "manufacturing" count, some person or persons attempted to manufacture methamphetamine;

Two, the defendant knew that the crime of manufacturing a controlled substance was being attempted or committed, or was going to be attempted or committed;

Three, the defendant knowingly acted in some way for the purpose of causing, encouraging, or aiding the manufacture of a controlled substance;

Four, the defendant intended that a controlled substance be manufactured.



QUANTITY OF METHAMPHETAMINE

The prosecution does not have to prove that any of the "conspiracy" or "manufacturing" offenses involved the amount of methamphetamine stated in the indictment. However, if you find a defendant guilty of a "conspiracy" or "manufacturing" offense, as charged in Counts 1 through 4 of the indictment, then you must also determine beyond a reasonable doubt the quantity of methamphetamine (either pure methamphetamine or a methamphetamine mixture) actually involved in that offense for which the defendant can be held responsible.



COUNT 5: DRUG USER IN POSSESSION OF A FIREARM

Count 5 of the indictment charges that, on or about May 10, 2000, defendant Karl Kessler, then being an unlawful user of controlled substances, knowingly possessed certain firearms.

Elements

For you to find Mr. Kessler guilty of this offense, the prosecution must prove each of the following three elements beyond a reasonable doubt:

One, on or about May 10, 2000, Karl Kessler knowingly possessed one or more of the firearms identified in the indictment;

Two, during the time Karl Kessler possessed the firearm, he was an unlawful user of controlled substances; and

Three, at some time before Karl Kessler possessed the firearm, the firearm was transported across a state line.

Firearms

The Grand Jury charges that, during the time he was an unlawful user of controlled substances, Mr. Kessler unlawfully possessed the following firearms:

(1) One Savage Arms bolt action rifle, serial number 340BC;

(2) One Ithica 12-gauge shotgun, serial number 80676;

(3) One Remington 12-gauge shotgun, serial number 118673V;

(4) One Thompson Center Arms 223 caliber firearm, serial number 255519;

(5) One Smith & Wesson .357 caliber handgun, serial number AAT1404;

(6) One AMT .45 caliber handgun, serial number DA9147;

(7) One Sterling .25 caliber handgun, serial number 064499.



The prosecution does not have to prove that Mr. Kessler possessed all of the firearms alleged in this count of the indictment. The prosecution must only prove that Mr. Kessler possessed one or more of the firearms alleged. However, you must unanimously agree on which firearm or firearms Mr. Kessler possessed.



This is only a preliminary outline of the elements of the offenses charged in the indictment. At the end of the trial, I will give you final written instructions on these offenses. Because they are more detailed, those final instructions govern on the elements of the offenses 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 each 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 lawyers for the defendants may, but have no obligation to, cross-examine. Following the prosecution's case, each defendant may, but does not have to, present evidence and call witnesses. If a defendant calls witnesses, the prosecutor may cross-examine them.

After the evidence is concluded, I will give you most of the final instructions. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you the remaining final instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 5 - PRESUMPTION OF INNOCENCE



Defendants Karl Kessler and Adele Hylback are each presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion that might arise from the arrest or charge of these defendants or the fact that they are here in court. The presumption of innocence remains with a defendant throughout the trial. That presumption alone is sufficient to find a defendant not guilty. The presumption of innocence may be overcome as to a defendant only if the prosecution proves, beyond a reasonable doubt, every essential element of a crime charged against that defendant.

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

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

PRELIMINARY INSTRUCTION NO. 6 - REASONABLE DOUBT



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



PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE



Evidence is:

1. Testimony.

2. Exhibits I admit into evidence.

3. Stipulations, which are agreements between the parties.

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

A particular item of evidence is sometimes admitted only for a limited purpose, and not for any other purpose. I will tell you if that happens, and instruct you on the purposes for which the item can and cannot be used.

The fact that an exhibit may be shown to you does not mean that you must rely on it more than you rely on other evidence.

The following are not evidence:

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

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

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

The weight of the evidence is not determined by the number of witnesses testifying as to the existence or non-existence of any fact. Also, the weight of the evidence should not be determined merely by the number or volume of documents or exhibits. The weight of evidence depends on its quality, not quantity. The quality and weight of the evidence is for you to decide.

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 or alcohol use or addiction, if any, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe. In deciding whether or not to believe a witness, keep in mind that people sometimes see or hear things differently and sometimes forget things. You need to consider, therefore, whether a contradiction results from an innocent misrecollection or sincere lapse of memory, or instead from an intentional falsehood or pretended lapse of memory.

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

Ordinarily, witnesses may only testify to factual matters within their personal knowledge. However, you may hear evidence from persons described as experts. Persons may become qualified as experts in some field by knowledge, skill, training, education, or experience. Such experts may state their opinions on matters in that field and may also state the reasons for their opinions. You should consider expert testimony just like any other testimony. You may believe all of what an expert says, only part of it, or none of it, considering the expert's qualifications, the soundness of the reasons given for the opinion, the acceptability of the methods used, any reason the expert may be biased, and all of the other evidence in the case.

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

PRELIMINARY INSTRUCTION NO. 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.

PRELIMINARY INSTRUCTION NO. 11 - NOTE-TAKING



If you want to take notes during the trial, you may, but be sure that your note-taking does not interfere with listening to and considering all the evidence. If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence.

Notes you take during the trial are not necessarily more reliable than your memory or another juror's memory. Therefore, you should not be overly influenced by the notes.

If you take notes, do not discuss them with anyone before you begin your deliberations. At the end of each day, please leave your notes on your chair. At the end of the trial, you may take your notes out of the notebook and keep them, or leave them, and we will destroy them. No one will read the notes, either during or after the trial.

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

PRELIMINARY INSTRUCTION NO. 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 case sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case you will know more about the matter than anyone will learn through the news media.

Sixth, do not do any research 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 14th day of January, 2002.



FINAL INSTRUCTION NO. 1 - INTRODUCTION







Members of the jury, the written instructions I gave you at the beginning of the trial and the oral instructions I gave you during the trial remain in effect. I now give you some additional instructions.

The instructions I am about to give you, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. All instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

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

FINAL INSTRUCTION NO. 2 - "INTENT"AND "KNOWLEDGE"



"Intent" and "knowledge" are elements of the offenses charged in this case and must be proved beyond a reasonable doubt. "Intent" and "knowledge" may be proved like anything else. An act is done "knowingly" if a defendant is aware of the act and does not act through ignorance, mistake, or accident. The prosecution is not required to prove that a defendant knew that his or her acts or omissions were unlawful.

FINAL INSTRUCTION NO. 3 - COUNTS 1 & 3: CONSPIRACY



The two "conspiracy" offenses, charged in Count 1 and Count 3 of the indictment, have the same objectives, manufacturing and distributing pure methamphetamine, and/or manufacturing or distributing a methamphetamine mixture. However, they differ in the times the conspiracies allegedly existed: The conspiracy charged in Count 1 allegedly existed between about January 2000 and May 2000, while the conspiracy charged in Count 3 allegedly existed in about March 2001. Also, only defendant Kessler is charged with the conspiracy charged in Count 3.

For you to find a defendant guilty of a "conspiracy" offense, as charged in either Count 1 or Count 3 of the indictment, the government must prove the following three essential elements beyond a reasonable doubt as to that defendant:

One, during the time alleged in the specific "conspiracy" count, two or more persons reached an agreement or came to an understanding to commit one or both of the offenses alleged.

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

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

To assist you in determining whether there was an agreement to commit the offenses that were allegedly the objectives of the conspiracies, you should consider the elements of those offenses. The elements of manufacturing pure methamphetamine or a methamphetamine mixture are the following: (1) a person manufactured either pure methamphetamine or a methamphetamine mixture, and (2) that person knew that he or she was, or intended to be, manufacturing a controlled substance. The elements of distributing pure methamphetamine or a methamphetamine mixture are the following: (1) a person intentionally distributed pure methamphetamine or a methamphetamine mixture to another; and (2) at the time of the distribution, the person knew that what he or she was distributing was a controlled substance.

The prosecution does not have to prove a conspiracy to commit all of the objectives charged. However, the prosecution must prove, beyond a reasonable doubt, a conspiracy to commit one offense, involving either pure methamphetamine or a methamphetamine mixture, and one kind of prohibited conduct, either manufacturing or distributing. However, in order to return a verdict of guilty, you must unanimously agree upon which controlled substance or substances and which kind or kinds of prohibited conduct were objectives of the conspiracy.

Keep in mind that, in the "conspiracy" charges in the indictment, the Grand Jury charges that the defendants conspired to commit these offenses, not that these offenses were actually committed. Therefore, to find a defendant guilty of a conspiracy, as charged in either Count 1 or Count 3, you do not have to find that any offense identified as an objective of the conspiracy was actually committed.



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

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of one, does not thereby become a member. Similarly, mere knowledge of the existence of a conspiracy is not enough to prove that the defendant joined in the conspiracy; rather, the prosecution must establish some degree of knowing involvement and cooperation.

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

In deciding whether a defendant voluntarily and intentionally joined in the agreement, you must consider only evidence of that defendant's own actions and statements. You may not consider actions and pretrial statements of others, except to the extent that pretrial statements of others describe something that had been said or done by that defendant.



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

The defendant must know of the existence and purpose of the conspiracy. Without such knowledge, the defendant cannot be guilty of conspiracy, even if his or her acts furthered the conspiracy.



For you to find a defendant guilty of a "conspiracy," as charged in Count 1 or Count 3 of the indictment, the prosecution must prove all of the essential elements of this offense beyond a reasonable doubt as to that defendant. Otherwise, you must find that defendant not guilty of that "conspiracy" charge.

In addition, if you find a defendant guilty of a "conspiracy" offense, you must also determine beyond a reasonable doubt the quantity of methamphetamine (either pure methamphetamine or a methamphetamine mixture) involved in the conspiracy for which the defendant can be held responsible, as quantity of methamphetamine is explained in Final Jury Instruction No. 6.

FINAL INSTRUCTION NO. 4 - ACTS AND STATEMENTS OF

CO-CONSPIRATORS





If you find beyond a reasonable doubt that a conspiracy existed and that the defendant was one of its members, then you may consider acts knowingly done and statements knowingly made by the defendant's co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to the defendant, even though they were done or made in the defendant's absence and without his or her knowledge. This includes acts done or statements made before the defendant joined the conspiracy.

FINAL INSTRUCTION NO. 5 - COUNTS 2 & 4: MANUFACTURING





The two "manufacturing" offenses, charged in Count 2 and Count 4 of the indictment, both involve manufacturing, attempting to manufacture, or aiding and abetting an attempt to manufacture 5 grams or more of pure methamphetamine. However, they differ in the dates of the alleged offenses: Count 2 alleges that the offense was committed during about May 2000, while Count 4 alleges that the offense was committed on or about March 30, 2001. Also, only defendant Kessler is charged with the "manufacturing" offense charged in Count 4.

A defendant may be found guilty of a "manufacturing" offense, as charged in either Count 2 or Count 4 of the indictment, under one or more of the following three alternatives: personally committing the offense, personally attempting to commit the offense, or aiding and abetting another in an attempt to commit the offense. I will explain the elements of each of these alternatives in turn.

First alternative: Personally manufacturing methamphetamine

For you to find a defendant guilty of manufacturing pure methamphetamine under this "personal commission" alternative, the prosecution must prove each of the following essential elements beyond a reasonable doubt as to that defendant:

One, on or about the date alleged in the specific "manufacturing" count, the defendant manufactured pure methamphetamine.

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

The defendant need not know what the controlled substance is if the defendant knows that he or she is, or intends to be, manufacturing some controlled substance. Intent to manufacture a controlled substance can be inferred from evidence that the defendant possessed or purchased all or most of the precursor chemicals or ingredients of that controlled substance; possessed equipment necessary to manufacture that controlled substance; and/or possessed, had knowledge of, asked questions of others about, or had learned from others a "recipe" or "formula" for that controlled substance or the process for manufacturing that controlled substance. No single piece of evidence necessarily establishes intent to manufacture a controlled substance; rather, the totality of the circumstances must corroborate the defendant's intent to manufacture a controlled substance sufficiently for you to find such intent beyond a reasonable doubt.



For you to find a defendant guilty of a "manufacturing" offense, as charged in Count 2 or Count 4 of the indictment, under this "personal commission" alternative, the prosecution must prove both of these essential elements beyond a reasonable doubt as to that defendant. Otherwise, you must find that defendant not guilty of personally committing the manufacture of methamphetamine.



Second alternative: Attempting to manufacture methamphetamine

A defendant may be found guilty of manufacturing methamphetamine, even if he or she only attempts, but does not succeed, in manufacturing methamphetamine. For you to find a defendant guilty of a manufacturing offense under this "attempt" alternative, the prosecution must prove the following essential elements beyond a reasonable doubt as to that defendant:

One, the defendant intended to manufacture a controlled substance.

"Intent to manufacture a controlled substance" was explained to you in reference to element two of the "personal commission" alternative.



Two, the defendant knew that the material he or she intended to manufacture was a controlled substance.

The defendant need not know what the controlled substance is if the defendant knows that he or she is, or intends to be, manufacturing some controlled substance.



Three, on or about the date alleged in the specific "manufacturing" count, the defendant voluntarily and intentionally carried out some act that was a substantial step toward manufacturing pure methamphetamine.

"A substantial step" must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the crime of manufacturing pure methamphetamine. In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation or completion of the crime and be of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to manufacture a controlled substance. Crimes such as attempt to manufacture methamphetamine require a defendant to engage in numerous preliminary steps that brand the enterprise as criminal. However, evidence that the defendant ordered, received, or possessed the specific chemicals and equipment necessary to manufacture methamphetamine is sufficient to support a finding that the defendant took "a substantial step" toward manufacturing a controlled substance.



For you to find a defendant guilty of a "manufacturing" offense, as charged in Count 2 or Count 4 of the indictment, under this "attempt" alternative, the prosecution must prove all three of these essential elements beyond a reasonable doubt as to that defendant. Otherwise, you must find that defendant not guilty of attempting to manufacture methamphetamine.



Third alternative: Aiding and abetting an attempt to manufacture methamphetamine

A defendant may also be found guilty of manufacturing methamphetamine even if he or she did not personally do every act constituting that offense, as defined under the first alternative above, if he or she aided and abetted another in an attempt to commit that offense. For you to find a defendant guilty of a manufacturing offense under this "aiding and abetting" alternative, the prosecution must prove the following essential elements beyond a reasonable doubt as to that defendant:

One, on or about the date alleged in the specific "manufacturing" count, some person or persons attempted to manufacture methamphetamine.

The prosecution must first prove beyond a reasonable doubt all of the essential elements of attempting to manufacture methamphetamine, as explained in the second alternative just above, were committed by some person or persons on or about the date alleged in the specific "manufacturing" count. It is not necessary that the other person or persons be convicted or even identified.



Two, the defendant knew that the crime of manufacturing a controlled substance was being attempted or committed, or was going to be attempted or committed.

It is not necessary that the aider and abettor know what controlled substance the other person or persons were attempting to manufacture, if the aider and abettor knew that the other person or persons were attempting or going to attempt to manufacture a controlled substance.



Three, the defendant knowingly acted in some way for the purpose of causing, encouraging, or aiding the manufacture of a controlled substance.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has voluntarily aided and abetted the commission of an offense. A person who has no knowledge that a crime is being committed or is about to be committed, but who happens to act in a way that advances some offense, does not thereby become criminally liable for that offense. Similarly, mere knowledge of an illegal act is not enough to prove that the defendant aided and abetted that act; rather, the prosecution must establish some degree of knowing involvement and cooperation. However, a person does not need to know what controlled substance is being manufactured, if the person knowingly acts in some way for the purpose of causing, encouraging, or aiding the manufacture of some controlled substance.



Four, the defendant intended that a controlled substance be manufactured.

"Intent to manufacture a controlled substance" was explained to you in reference to element two of the "personal commission" alternative.



For you to find a defendant guilty of a "manufacturing" offense, as charged in Count 2 or Count 4 of the indictment, under this "aiding and abetting" alternative, the prosecution must prove all four of these essential elements beyond a reasonable doubt as to that defendant. Otherwise, you must find that defendant not guilty of aiding and abetting the manufacture of methamphetamine.



In addition, if you find a defendant guilty of a "manufacturing" offense, under one or more of the alternatives explained above, you must also determine beyond a reasonable doubt the quantity of methamphetamine (either pure methamphetamine or a methamphetamine mixture) involved in the "manufacturing" offense for which the defendant can be held responsible, as quantity of methamphetamine is explained in Final Jury Instruction No. 6.

FINAL INSTRUCTION NO. 6 - QUANTITY OF

METHAMPHETAMINE





If you find a defendant guilty of a "conspiracy" or "manufacturing" offense, as charged in Counts 1 through 4 of the indictment, then you must also determine beyond a reasonable doubt the quantity of methamphetamine (either pure methamphetamine or a methamphetamine mixture) actually involved in that offense for which the defendant can be held responsible. The prosecution does not have to prove that the offense involved the amount or quantity of the controlled substance charged in the indictment, although the prosecution must prove beyond a reasonable doubt the quantity of the controlled substance actually involved in the offense for which the defendant can be held responsible. Therefore, you must ascertain whether or not the controlled substance in question was in fact pure methamphetamine or a methamphetamine mixture, as charged in the pertinent count of the indictment, and you must determine beyond a reasonable doubt the amount of the controlled substance involved in the offense for which the defendant can be held responsible. In so doing, you may consider all of the evidence in the case that may aid in the determination of these issues.

A defendant guilty of conspiracy to manufacture or distribute methamphetamine (either pure methamphetamine or a methamphetamine mixture), as charged in Count 1 and Count 3 of the indictment, and explained in Final Jury Instruction No. 3, is responsible for quantities of the controlled substance that he or she actually manufactured or distributed, or agreed to manufacture or distribute. Such a defendant is also responsible for those quantities of the controlled substance that fellow conspirators manufactured or distributed, or agreed to manufacture or distribute, if you find that the defendant could have reasonably foreseen, at the time he or she joined the conspiracy or while the conspiracy lasted, that those prohibited acts were a necessary or natural consequence of the conspiracy.

A defendant guilty of manufacturing pure methamphetamine, as charged in Count 2 and Count 4 of the indictment, under one or more of the alternatives explained in Final Jury Instruction No. 5, is responsible for pure methamphetamine that he or she personally manufactured, attempted to manufacture, or aided and abetted another in an attempt to manufacture.

You must determine the total quantity of the controlled substance involved in a particular offense for which the defendant can be held responsible. You must indicate the range within which that total quantity falls. You must determine that total quantity in terms of grams of pure methamphetamine or grams of a methamphetamine mixture, as charged in the pertinent count. In making your determination of quantity as required, it may be helpful to remember that one pound is approximately equal to 453.6 grams, and that one ounce is approximately equal to 28.35 grams.

Again, you must determine beyond a reasonable doubt the quantity of the controlled substance involved in a particular offense for which a defendant can be held responsible.

FINAL INSTRUCTION NO. 7 - COUNT 5:

DRUG USER IN POSSESSION OF A FIREARM





Count 5 of the indictment charges defendant Karl Kessler with being an unlawful user of controlled substances in possession of one or more firearms. For you to find Mr. Kessler guilty of this offense, the prosecution must prove each of the following three elements beyond a reasonable doubt:

One, on or about May 10, 2000, Karl Kessler knowingly possessed one or more of the firearms identified in the indictment.

The Grand Jury charges that, during the time he was an unlawful user of controlled substances, Mr. Kessler unlawfully possessed the following firearms:

(1) One Savage Arms bolt action rifle, serial number 340BC;

(2) One Ithica 12-gauge shotgun, serial number 80676;

(3) One Remington 12-gauge shotgun, serial number 118673V;

(4) One Thompson Center Arms 223 caliber firearm, serial number 255519;

(5) One Smith & Wesson .357 caliber handgun, serial number AAT1404;

(6) One AMT .45 caliber handgun, serial number DA9147;

(7) One Sterling .25 caliber handgun, serial number 064499.

The prosecution does not have to prove that Mr. Kessler possessed all of the firearms alleged in this count of the indictment. The prosecution must only prove that Mr. Kessler possessed one or more of the firearms alleged. However, you must unanimously agree on which firearm or firearms Mr. Kessler possessed.

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



Two, during the time Karl Kessler possessed the firearm, he was an unlawful user of controlled substances.

The prosecution does not need to prove that the defendant was actually using or addicted to drugs at the exact moment he possessed the firearm or firearms in question in order for you to find that he was an unlawful user in possession of a firearm or firearms. The prosecution must only prove that the defendant was an "unlawful user" of a controlled substance during the time he possessed the firearm or firearms. A person is an "unlawful user" of a controlled substance if he uses a controlled substance other than as prescribed by a licensed physician. Such use is not limited to the use of a controlled substance on a particular day, or within a matter of days or weeks before, but rather that the unlawful use occurred recently enough to indicate that the defendant was actively engaged in such conduct during the time he possessed one or more firearms. An inference of use during the time of possession of a firearm may be drawn from evidence of a recent use or possession of a controlled substance or a pattern of use or possession that reasonably covers the time during which the defendant possessed the firearm.



Three, at some time before Karl Kessler possessed the firearm, the firearm was transported across a state line.

The prosecution and the defendant have stipulated, that is, they have agreed, that the firearms in question were transported across a state line at some time before the defendant received or possessed any of them, if he did indeed possess any of them. Therefore, you must consider this element to be proved.



For you to find defendant Karl Kessler guilty of this "drug user in possession of a firearm" offense, as charged in Count 5 of the indictment, the prosecution must prove all three of these essential elements beyond a reasonable doubt as to the defendant. Otherwise, you must find defendant Kessler not guilty of the offense charged in Count 5.

FINAL INSTRUCTION NO. 8 - SPECIFIC DEFENSES



In addition to denying that the prosecution has proved beyond a reasonable doubt all of the essential elements of the offenses charged, the defendants also assert the following specific defenses:

Defendant Karl Kessler contends that Rachael Young, Brenda Miller, Roger Stock, and others committed the conspiracy and manufacturing crimes charged against him in the indictment and that he did not. The law places no burden on the defendant to prove that someone else committed these crimes. Thus, there is no burden upon Karl Kessler to prove the guilt of these other individuals or to prove his innocence. The burden is on the prosecution to prove beyond a reasonable doubt that Karl Kessler committed each and every element of the crimes charged against him. You may consider evidence that someone other than Karl Kessler committed the crimes charged in deciding whether to find Karl Kessler not guilty or guilty of the crimes charged against him.

Defendant Adele Hylback contends that the evidence presented establishes that she did not join or participate in the conspiracy charged in Count 1 of the indictment or the manufacturing of methamphetamine charged in Count 2. She contends that the evidence establishes that witnesses Rachael Young and Brenda Miller testified falsely about her knowledge of and participation in the illegal acts alleged in the indictment as well as their own knowledge and participation. She contends that the testimony of both witnesses was the result of their motivation to falsely accuse Adele Hylback of the offenses charged against her in order to gain benefits or special consideration in their own cases. You may consider evidence that witnesses testified falsely or were motivated to testify falsely in deciding whether to find Adele Hylback not guilty or guilty of the offenses charged against her.

Adele Hylback also contends that her purchase and possession of pseudoephedrine pills was not illegal and that she used these pills for legitimate purposes. You may consider evidence that Adele Hylback purchased, possessed, and used pseudoephedrine pills for legitimate purposes in deciding whether to find her not guilty or guilty of the offenses charged against her.

Remember that the burden never shifts to a defendant in a criminal case to prove his or her specific defense or otherwise to prove his or her innocence.

FINAL INSTRUCTION NO. 9 - IMPEACHMENT



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 may treat certain evidence.

A witness may be discredited or impeached by contradictory evidence; by a showing that the witness testified falsely concerning a material matter; or by evidence that at some other time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony. If earlier statements of a witness were admitted into evidence, they were not admitted to prove that the contents of those statements were true. Instead, you may consider those earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness, and therefore whether they affect the credibility of that witness.

You have heard evidence that witnesses Brenda Miller and Rachael Young have each been convicted of a crime. You may use that evidence only to help you decide whether or not to believe these witnesses and how much weight to give their testimony.

Similarly, you have heard evidence that Brenda Miller and Rachael Young have pleaded guilty to charges that arose out of the same events for which the defendants are now on trial. You cannot consider such a witness's guilty plea as any evidence of the guilt of the defendants. Rather, you can consider such a witness's guilty plea only for the purpose of determining how much, if at all, to rely upon her testimony.

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

1. You have heard evidence from Brenda Miller and Rachel Young that they participated in the crimes charged against the defendants. Their testimony was received in evidence and you may consider it. You may give the testimony of such a witness such weight as you think it deserves. Whether or not the testimony of Brenda Miller and Rachael Young may have been influenced by their desire to please the government, in order to obtain favorable reports to the Iowa Department of Human Services, is for you to determine.

2. You have heard evidence that witnesses Brenda Miller and Rachael Young had arrangements with the government under which, in return for providing information to the government and continuing to cooperate, they were allowed to plead guilty to misdemeanor charges in state court and received sentences of probation, and no federal charges were filed against them. Their testimony was received in evidence and you may consider it. You may give the testimony of these witnesses such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by receiving such a benefit is for you to decide.



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





Defendants Karl Kessler and Adele Hylback are 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 these defendants or the fact that they are here in court. The presumption of innocence remains with a defendant throughout the trial. That presumption alone is sufficient to find a defendant not guilty. The presumption of innocence may be overcome as to a defendant only if the prosecution proves, beyond a reasonable doubt, every essential element of a crime charged against him or her.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to a defendant to prove his or her innocence, for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. Therefore, the fact that defendant Adele Hylback did not testify must not be discussed or considered by you in any way when deliberating and arriving at your verdict. A defendant is not even obligated to produce any evidence by cross-examining the witnesses who are called to testify by the prosecution.

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

FINAL INSTRUCTION NO. 11 - REASONABLE DOUBT



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

FINAL INSTRUCTION NO. 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 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 on an offense charged against that defendant, then that defendant should have your vote for a not guilty verdict on that offense. If all of you reach the same conclusion, then the verdict of the jury must be not guilty for that defendant on that offense. Of course, the opposite also applies. If, in your individual judgment, the evidence establishes a defendant's guilt beyond a reasonable doubt on an offense charged, then your vote should be for a verdict of guilty against that defendant on that charge, and if all of you reach that conclusion, then the verdict of the jury must be guilty for that defendant on that charge. As I instructed you earlier, the burden is upon the prosecution to prove beyond a reasonable doubt every essential element of a crime charged. Remember also that the question before you can never be whether the government wins or loses the case. The government, as well as society, always wins, regardless of whether your verdict is not guilty or guilty, when justice is done.

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

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

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

FINAL INSTRUCTION NO. 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 of Karl Kessler or Adele Hylback in any way in deciding whether the prosecution has proved its case beyond a reasonable doubt.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible, either in writing or orally in open court. Remember that you should not tell anyone--including me--how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law in these instructions. The verdict, whether not guilty or guilty, must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.

Finally, the verdict form is attached to these instructions. The verdict form is simply the written notice of the decision you reach in this case. You will take this form to the jury room, and, when each of you has agreed on the verdicts, your foreperson will fill in the form and date it, you will all sign it, and your foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 17th day of January, 2002.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,
Plaintiff,

No. CR 01-3032-MWB

vs.



VERDICT FORM

KARL KESSLER and ADELE HYLBACK,
Defendants.

____________________



I. KARL KESSLER



We, the Jury, unanimously find defendant Karl Kessler not guilty or guilty as follows:

COUNT 1 VERDICT
Step 1: On the charge of conspiracy between about January 2000 and May 2000, as explained in Final Jury Instruction No. 3, please mark your verdict. ____ Not Guilty

____ Guilty

Step 2: If you have found defendant Karl Kessler guilty of this offense, please indicate (a) which controlled substance or controlled substances and (b) what prohibited conduct involving that substance or those substances were the objectives of the conspiracy, and then indicate (c) the quantity of the substance involved in the conspiracy for which you find beyond a reasonable doubt that this defendant can be held responsible. (For purposes of your determinations on (a) and (b), the objectives of the conspiracy are explained in Final Jury Instruction No. 3, in the third paragraph of the explanation to element one, beginning on page 22. For purposes of your determination on (c), determination of drug quantity is explained in Final Jury Instruction No. 6.)
(a)

controlled substance

_____ pure methamphetamine _____ A methamphetamine mixture
(b)

conduct

Manufacturing _____ Distribution _____ Manufacturing _____ Distribution _____
(c)

quantity

___ 5 grams or more ___ 5 grams or more ___ 50 grams or more ___ 50 grams or more
___ Less than 5 grams ___ Less than 5 grams ___ Less than 50 grams ___ Less than 50 grams
COUNT 2 VERDICT
Step 1: On the charge of manufacturing methamphetamine during about May 2000, as explained in Final Jury Instruction No. 5, please mark your verdict. _____ Not Guilty

_____ Guilty

Step 2: If you have found defendant Karl Kessler guilty of this offense, please indicate (a) on which alternative or alternatives you find him guilty, and (b) the quantity of pure methamphetamine involved in this offense for which you find beyond a reasonable doubt that this defendant can be held responsible. (Determination of drug quantity is explained in Final Jury Instruction No. 6.)
(a)

alternative

____ Personal commission _____ Attempt _____ Aiding and abetting
(b)

quantity

_____ 5 grams or more of pure methamphetamine _____ Less than 5 grams of pure methamphetamine
COUNT 3 VERDICT
Step 1: On the charge of conspiracy during March 2001, as explained in Final Jury Instruction No. 3, please mark your verdict. ____ Not Guilty

____ Guilty

Step 2: If you have found defendant Karl Kessler guilty of this offense, please indicate (a) which controlled substance or controlled substances and (b) what prohibited conduct involving that substance or those substances were the objectives of the conspiracy, and then indicate (c) the quantity of the substance involved in the conspiracy for which you find beyond a reasonable doubt that this defendant can be held responsible. (For purposes of your determinations on (a) and (b), the objectives of the conspiracy are explained in Final Jury Instruction No. 3, in the third paragraph of the explanation to element one, beginning on page 22. For purposes of your determination on (c), determination of drug quantity is explained in Final Jury Instruction No. 6.)
(a)

controlled substance

_____ pure methamphetamine _____ A methamphetamine mixture
(b)

conduct

Manufacturing _____ Distribution _____ Manufacturing _____ Distribution _____
(c)

quantity

___ 5 grams or more ___ 5 grams or more ___ 50 grams or more ___ 50 grams or more
___ Less than 5 grams ___ Less than 5 grams ___ Less than 50 grams ___ Less than 50 grams
COUNT 4 VERDICT
Step 1: On the charge of manufacturing methamphetamine during about March 30, 2001, as explained in Final Jury Instruction No. 5, please mark your verdict. _____ Not Guilty

_____ Guilty

Step 2: If you have found defendant Karl Kessler guilty of this offense, please indicate (a) on which alternative or alternatives you find him guilty, and (b) the quantity of pure methamphetamine involved in this offense for which you find beyond a reasonable doubt that this defendant can be held responsible. (Determination of drug quantity is explained in Final Jury Instruction No. 6.)
(a)

alternative

____ Personal commission _____ Attempt _____ Aiding and abetting
(b)

quantity

_____ 5 grams or more of pure methamphetamine _____ Less than 5 grams of pure methamphetamine
COUNT 5 VERDICT
Step 1: On the "drug user in possession of a firearm" charge, as explained in Final Jury Instruction No. 7, please mark your verdict. _____ Not Guilty

_____ Guilty

Step 2: If you have found defendant Karl Kessler guilty of this offense, please indicate which of the following firearms you find that he possessed.
_____ One Savage Arms bolt action rifle, serial number 340BC
_____ One Ithica 12-gauge shotgun, serial number 80676
_____ One Remington 12-gauge shotgun, serial number 118673V
_____ One Thompson Center Arms 223 caliber firearm, serial number 255519
_____ One Smith & Wesson .357 caliber handgun, serial number AAT1404
_____ One AMT .45 caliber handgun, serial number DA9147
_____ One Sterling .25 caliber handgun, serial number 064499


________________

Date



_______________________________

Foreperson



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



B. ADELE HYLBACK

We, the Jury, unanimously find defendant Adele Hylback not guilty or guilty as follows:

COUNT 1 VERDICT
Step 1: On the charge of conspiracy between about January 2000 and May 2000, as explained in Final Jury Instruction No. 3, please mark your verdict. ____ Not Guilty

____ Guilty

Step 2: If you have found defendant Adele Hylback guilty of this offense, please indicate (a) which controlled substance or controlled substances and (b) what prohibited conduct involving that substance or those substances were the objectives of the conspiracy, and then indicate (c) the quantity of the substance involved in the conspiracy for which you find beyond a reasonable doubt that this defendant can be held responsible. (For purposes of your determinations on (a) and (b), the objectives of the conspiracy are explained in Final Jury Instruction No. 3, in the third paragraph of the explanation to element one, beginning on page 22. For purposes of your determination on (c), determination of drug quantity is explained in Final Jury Instruction No. 6.)
(a)

controlled substance

_____ pure methamphetamine _____ A methamphetamine mixture
(b)

conduct

Manufacturing _____ Distribution _____ Manufacturing _____ Distribution _____
(c)

quantity

___ 5 grams or more ___ 5 grams or more ___ 50 grams or more ___ 50 grams or more
___ Less than 5 grams ___ Less than 5 grams ___ Less than 50 grams ___ Less than 50 grams
COUNT 2 VERDICT
Step 1: On the charge of manufacturing methamphetamine during about May 2000, as explained in Final Jury Instruction No. 5, please mark your verdict. _____ Not Guilty

_____ Guilty

Step 2: If you have found defendant Adele Hylback guilty of this offense, please indicate (a) on which alternative or alternatives you find him guilty, and (b) the quantity of pure methamphetamine involved in this offense for which you find beyond a reasonable doubt that this defendant can be held responsible. (Determination of drug quantity is explained in Final Jury Instruction No. 6.)
(a)

alternative

____ Personal commission _____ Attempt _____ Aiding and abetting
(b)

quantity

_____ 5 grams or more of pure methamphetamine _____ Less than 5 grams of pure methamphetamine





________________

Date



_______________________________

Foreperson



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror