IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 01-3038-MWB

vs.



PRELIMINARY AND

FINAL INSTRUCTIONS

TO THE JURY

MONTREAIL DEAN DUNGY,
Defendant.






TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - STATEMENT OF THE CASE 2

NO. 3 - DUTY OF JURORS 4

NO. 4 - ELEMENTS OF THE OFFENSES 5

NO. 5 - OUTLINE OF TRIAL 11

NO. 6 - PRESUMPTION OF INNOCENCE 12

NO. 7 - REASONABLE DOUBT 13

NO. 8 - DEFINITION OF EVIDENCE 14

NO. 9 - CREDIBILITY OF WITNESSES 16

NO. 10 - BENCH CONFERENCES AND RECESSES 18

NO. 11 - OBJECTIONS 19

NO. 12 - NOTE-TAKING 20

NO. 13 - CONDUCT OF THE JURY 21

FINAL INSTRUCTIONS 23

NO. 1 - INTRODUCTION 23

NO. 2 - "INTENT"AND "KNOWLEDGE" 24

NO. 3 - "POSSESSION," "DISTRIBUTION," AND "DELIVERY" 25

NO. 4 - COUNT 1: CONSPIRACY 27

NO. 5 - REQUIREMENTS FOR PROOF OF THE CHARGED

CONSPIRACY 30

NO. 6 - ACTS AND STATEMENTS OF CO-CONSPIRATORS 32

NO. 7 - COUNTS 2 & 3: POSSESSION WITH INTENT TO

DISTRIBUTE 33

NO. 8 - SPECIFIC DEFENSE 35

NO. 9 - QUANTITY OF COCAINE 36

NO. 10 - IMPEACHMENT 38

NO. 11 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF 40

NO. 12 - REASONABLE DOUBT 41

NO. 13 - DUTY TO DELIBERATE 42

NO. 14 - 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 any oral instructions given to you during the trial and the written instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.

PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE



This is a criminal case brought by the United States of America against defendant Montreail Dean Dungy. In an indictment filed in this case, a Grand Jury charges Mr. Dungy with three separate offenses. Count 1 of the indictment charges that, between about January 1992, through and including February 23, 2001, Mr. Dungy conspired to commit one or more of the following offenses: (a) distributing 50 grams or more of cocaine base, commonly called "crack cocaine"; (b) possessing with intent to distribute 50 grams or more of "crack cocaine"; and (c) manufacturing or attempting to manufacture 50 grams or more of "crack cocaine." Count 2 of the indictment charges that, on or about February 23, 2001, Mr. Dungy possessed with intent to distribute or aided and abetted another or others in the possession with intent to distribute of approximately 547 grams of cocaine salt, commonly called "powder cocaine." Count 3 of the indictment charges that, on or about February 23, 2001, Mr. Dungy possessed with intent to distribute or aided and abetted another or others in the possession with intent to distribute of approximately 44 grams of "crack cocaine." These offenses will be described as "conspiracy," "possession with intent to distribute powder cocaine," and "possession with intent to distribute crack cocaine," respectively.

As mentioned above, these charges are set out in an indictment. An indictment is simply an accusation. It is not evidence of anything. The defendant has pleaded not guilty to the crimes charged against him; therefore, he is presumed to be innocent unless and until the prosecution proves his guilt beyond a reasonable doubt on an offense charged against him.

Also, the indictment charges that the offenses were committed "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.

PRELIMINARY INSTRUCTION NO. 3 - DUTY OF JURORS



Your duty is to decide from the evidence whether the defendant is not guilty or guilty of each of the crimes charged against him. You will find the facts from the evidence. You are entitled to consider that evidence in light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts that have been established by the evidence. You will then apply those facts to the law, which I will give you in these and 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. Also, your verdict on each charge against the defendant must be unanimous.

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. Similarly, 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.

Please remember that only defendant Montreail Dean Dungy, not anyone else, is on trial here, and that this defendant is on trial only for the crimes charged against him, not for anything else.

Finally, keep in mind that you must give separate consideration to the evidence about each charge against the defendant. The defendant is entitled to have each charge against him considered separately. You must return a separate, unanimous verdict on each charge.

PRELIMINARY INSTRUCTION NO. 4 - ELEMENTS OF THE OFFENSES



To help you follow the evidence, here is a summary of the elements of the offenses charged in the indictment. In this instruction and all of the other instructions in this case, I will refer to "cocaine base" as "crack cocaine," and I will refer to "cocaine salt" as "powder cocaine." When I refer to a "controlled substance" in this or the other instructions in this case, 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. Crack cocaine and powder cocaine are both controlled substances.



COUNT 1: CONSPIRACY

Elements

Count 1 of the indictment charges that the defendant was a member of a single conspiracy that existed between about January 1992, through and including February 23, 2001, with the objective of committing one or more of the following crimes: distribution of crack cocaine; possession with intent to distribute crack cocaine; and manufacturing or attempting to manufacture crack cocaine. The government does not have to prove that the conspiracy lasted for the entire time alleged. However, federal law requires that a conspiracy charge like the one in Count 1 must be brought within five years after the conspiracy ended. In this case, the indictment was filed on July 19, 2001. The issues in this case include whether there was one conspiracy, as charged in the indictment, or two separate conspiracies, one that ended some time before July 19, 1996, and another that began some time after July 19, 1996, and if there were two conspiracies, whether the defendant was a member of both, only one, or no conspiracy at all. For you to find the defendant guilty of the conspiracy charged in Count 1, the government must prove beyond a reasonable doubt that the defendant was a member of a conspiracy with the objectives alleged in Count 1, that the conspiracy existed at some time within the period charged in the indictment, and that the conspiracy continued to exist or began after July 19, 1996. You cannot find the defendant guilty of Count 1 if he was only a member of a conspiracy that ended before July 19, 1996, even if that conspiracy had the same objectives as the conspiracy alleged in Count 1.

Therefore, for you to find the defendant guilty of the crime of conspiracy, as charged in Count 1 of the indictment, the prosecution must prove the following three essential elements beyond a reasonable doubt as to the defendant:

One, between about January 1992, through and including February 23, 2001, two or more persons reached an agreement or came to an understanding to commit one or more of the offenses identified;

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, he knew the purpose of the agreement or understanding.

Objectives of the conspiracy

The indictment charges a conspiracy to commit three separate crimes or offenses. It is not necessary for the prosecution to prove a conspiracy to commit all three offenses. It would be sufficient if the prosecution proves, beyond a reasonable doubt, a conspiracy to commit one offense. However, in order to return a verdict of guilty, you must unanimously agree upon which offense or offenses were objectives of the conspiracy. If you cannot agree in that manner, you must find the defendant not guilty.

To assist you in determining whether there was an agreement to commit the offenses that were allegedly the objectives of the conspiracy, you should consider the elements of those offenses.

The elements of distribution of crack cocaine are the following:

One, a person intentionally distributed crack cocaine to another; and

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

The elements of possession with intent to distribute crack cocaine are the following:

One, a person was in possession of a crack cocaine;

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

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

The elements of manufacturing crack cocaine are the following:

One, a person manufactured crack cocaine; and

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

A person may also be found guilty of manufacturing crack cocaine if that person attempts, but does not succeed, in manufacturing crack cocaine. The elements of attempting to manufacture crack cocaine are that the person intended to manufacture crack cocaine; that person knew that the material he or she intended to manufacture was a controlled substance; and that person voluntarily and intentionally carried out some act that was a substantial step toward manufacturing crack cocaine.



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



COUNTS 2 & 3: POSSESSION WITH INTENT TO DISTRIBUTE

In Counts 2 and 3 of the indictment, the Grand Jury charges the defendant with two separate "possession with intent" offenses involving two different controlled substances: Count 2 charges possession with intent to distribute powder cocaine, and Count 3 charges possession with intent to distribute crack cocaine. Although you must consider these charges separately, the elements of the offenses differ only as to the controlled substance in question. In addition, the indictment charges that each "possession with intent" offense was committed in either of two ways: personally committing the offense or aiding and abetting another in committing the offense.

Personal commission alternative

For you to find the defendant guilty of personally committing a "possession with intent" offense charged in the indictment, the prosecution must prove the following three essential elements beyond a reasonable doubt as to the defendant:

One, on or about February 23, 2001, the defendant was in possession of the controlled substance specified in the count under consideration, either powder cocaine for Count 2 or crack cocaine for Count 3;

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

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

Aiding and abetting alternative

The defendant may be found guilty of a "possession with intent" offense, as charged in Counts 2 and 3 of the indictment, even if he did not do every act constituting "personal commission" of such an offense, if he aided and abetted the commission of that offense by another. For you to find the defendant guilty of a "possession with intent" offense charged in Count 2 or 3 of the indictment under this "aiding and abetting" alternative, the prosecution must first prove beyond a reasonable doubt that all of the essential elements of personally committing that "possession with intent" offense were committed by some person or persons on or about February 23, 2001. The prosecution must then prove that the defendant "aided and abetted" the commission of that offense by proving the following four elements beyond a reasonable doubt as to the defendant:

One, on or about February 23, 2001, the defendant knew that the crime of possession with intent to distribute the controlled substance specified in the particular count of the indictment was being committed or was going to be committed;

Two, the defendant knowingly acted in some way for the purpose of causing, encouraging, or aiding the possession of that controlled substance with intent to distribute it;

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

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



QUANTITY OF COCAINE

If you find the defendant guilty of one or more of the offenses charged in the indictment, you must also determine beyond a reasonable doubt the quantity of cocaine (either powder cocaine or crack cocaine) involved in that offense or those offenses for which that defendant can be held responsible.



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. 5 - OUTLINE OF TRIAL



The trial will proceed as follows:

After these preliminary instructions, the prosecutor may make an opening statement. Next, the lawyer for the defendant may, but does not have to, make an opening statement. An opening statement is not evidence. It is simply a summary of what the lawyer expects the evidence to be.

The prosecution will then present its evidence and call witnesses, and the lawyer for the defendant may, but has no obligation to, cross-examine. Following the prosecution's case, the defendant may, but does not have to, present evidence and call witnesses. If the defendant calls witnesses, the prosecutor may cross-examine them.

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

PRELIMINARY INSTRUCTION NO. 6 - PRESUMPTION OF INNOCENCE



Defendant Montreail Dean Dungy is presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion that might arise from the arrest or charge of this defendant or the fact that he is here in court. The presumption of innocence remains with the defendant throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to the defendant only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against him.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to the defendant to prove his innocence, for the law never imposes upon 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 essential element of an offense charged in the indictment, you must find the defendant not guilty of that offense.

PRELIMINARY INSTRUCTION NO. 7 - 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. 8 - DEFINITION OF EVIDENCE



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

Evidence is:

1. Testimony in person.

2. Exhibits I admit into evidence.

3. Stipulations, which are agreements between the parties.

4. Any other matter I admit into evidence.

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

If you have exhibits to consider as evidence, in deciding whether and how to rely on such an exhibit, you should evaluate its contents and its relationship to the other evidence in the case. The fact that an exhibit may be given to you for your inspection does not mean that you must rely on it more than you rely on the testimony of the witnesses.

The following are not evidence:

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

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

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

Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you if that happens, 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. 9 - CREDIBILITY OF WITNESSES



In deciding what the facts are, you may have to decide what testimony you believe and what testimony you do not believe. You may believe all of what a witness says, only part of it, or none of it.

In deciding what testimony to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the witness's drug or alcohol use or addiction, if any, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe. In deciding whether or not to believe a witness, keep in mind that people sometimes see or hear things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or a small detail.

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

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

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

PRELIMINARY INSTRUCTION NO. 10 - 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. 11 - 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. 12 - 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. 13 - 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. 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 6th day of November, 2001.



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. 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." An act is done "knowingly" if the defendant is aware of the act and does not act through ignorance, mistake, or accident. The prosecution is not required to prove that the defendant knew that his acts or omissions were unlawful.

FINAL INSTRUCTION NO. 3 - "POSSESSION," "DISTRIBUTION,"

AND "DELIVERY"





The offenses charged or alleged to be the objectives of the conspiracy offense charged involve "distribution," "possession," and/or "delivery" of a controlled substance. The following definitions of these terms apply in these instructions:

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

In addition, mere presence where a thing was found or mere physical proximity to the thing is insufficient to establish "possession" of that item. Knowledge of the presence of the thing, at the same time one has control over the thing or the place in which it was found, is required. Thus, in order to establish "possession" of a thing, in addition to knowledge of the presence of the thing, the prosecution must establish that, at the same time, (a) the person intended to exercise control over the thing or place in which it was found; (b) the person had the power to exercise control over the thing or place in which it was found; and (c) the person knew that he or she had the power to exercise control over the thing or place in which it was found.

The term "distribute" means to deliver a controlled substance to the actual or constructive possession of another person. The term "deliver" means the actual, constructive, or attempted transfer of a controlled substance to the actual or constructive possession of another person. It is not necessary that money or anything of value change hands. The law prohibits the "distribution" of a controlled substance; the prosecution does not have to prove that there was a "sale" of a controlled substance to establish distribution or intent to distribute.

FINAL INSTRUCTION NO. 4 - COUNT 1: CONSPIRACY



Count 1 of the indictment charges that, between about January 1992, through and including February 23, 2001, Mr. Dungy conspired to commit one or more of the following offenses: (a) distributing 50 grams or more of crack cocaine; (b) possessing with intent to distribute 50 grams or more of crack cocaine; and (c) manufacturing or attempting to manufacture 50 grams or more of crack cocaine. For you to find the defendant guilty of this "conspiracy" charge, the prosecution must prove the following three elements beyond a reasonable doubt as to the defendant:

One, between about January 1992, through and including February 23, 2001, two or more persons reached an agreement or came to an understanding to commit one or more 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. In determining whether the alleged agreement existed, you may consider the actions and statements of all of the alleged participants, whether they are charged as defendants or not. The agreement may be inferred from all the circumstances and the conduct of the alleged participants.

To assist you in determining whether there was an agreement to commit the offenses that were allegedly the objectives of the conspiracy, you should consider the elements of those offense, as they are set out in Preliminary Jury Instruction No. 4, beginning on page 6. Keep in mind that, in the indictment, the Grand Jury charges that the defendant conspired to commit the offenses identified, not that these offenses were actually committed. Therefore, to find the defendant guilty of conspiracy, as charged in Count 1, you do not have to find that any offense identified as an objective was actually committed.

However, you are also instructed that, in and of itself, mere knowledge that a controlled substance is being distributed, possessed with intent to distribute it, or manufactured does not constitute agreement to commit any offense identified as an objective of the conspiracy, nor does presence near a place where a controlled substance is being distributed, possessed with intent to distribute it, or manufactured, in and of itself, constitute such agreement to commit any identified offense. Similarly, a simple buyer-seller relationship does not establish an agreement to distribute a controlled substance; rather, the government must prove that the buyer and seller had an agreement to further distribute the controlled substance.

The prosecution does not have to prove that the conspiracy involved the amount or quantity of crack cocaine that is charged in the indictment. However, you must ascertain whether or not the controlled substance in question was in fact crack cocaine, as specified in the indictment.



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.

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

However, 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.

In determining whether the defendant became a member of the conspiracy, you may consider only the defendant's own acts and statements.



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

Again, it is not necessary that the members of a conspiracy have directly stated among themselves the details or purpose of the scheme, as long as the defendant has an understanding of the unlawful nature of the plan. A person who has no knowledge of a conspiracy, but who happens to act in a way that advances some purpose of one, does not thereby become a member. Therefore, the defendant must know of the existence and purpose of the conspiracy. Without such knowledge, the defendant cannot be guilty of conspiracy, even if his acts furthered the conspiracy.



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

FINAL INSTRUCTION NO. 5 - REQUIREMENTS FOR PROOF

OF THE CHARGED CONSPIRACY





Count 1 of the indictment charges that the defendant was a member of a single conspiracy that existed between about January 1992, through and including February 23, 2001, with the objective of committing one or more of the following crimes: distribution of crack cocaine; possession with intent to distribute crack cocaine; and manufacturing or attempting to manufacture crack cocaine. The government does not have to prove that the conspiracy lasted for the entire time alleged. However, federal law requires that a conspiracy charge like the one in Count 1 must be brought within five years after the conspiracy ended. In this case, the indictment was filed on July 19, 2001. The issues in this case include whether there was one conspiracy, as charged in the indictment, or two separate conspiracies, one that ended some time before July 19, 1996, and another that began some time after July 19, 1996, and if there were two conspiracies, whether the defendant was a member of both, only one, or no conspiracy at all. For you to find the defendant guilty of the conspiracy charged in Count 1, the government must prove beyond a reasonable doubt that the defendant was a member of a conspiracy with the objectives alleged in Count 1, that the conspiracy existed at some time within the period charged in the indictment, and that the conspiracy continued to exist or began after July 19, 1996. You cannot find the defendant guilty of Count 1 if he was only a member of a conspiracy that ended before July 19, 1996, even if that conspiracy had the same objectives as the conspiracy alleged in Count 1.

The general test of whether there was a single conspiracy is whether there was "one overall agreement" to perform various functions to achieve the objective or objectives of the conspiracy. In other words, the essence of the determination is whether there is one agreement to commit one or more crimes, or more than one agreement, each with separate objectives. To determine whether this "one overall agreement" test has been met, you should consider the following factors: (1) the time of events that allegedly show a conspiracy; (2) the persons allegedly acting as co-conspirators; (3) the offenses charged as objectives of the conspiracy, including other offenses charged in the indictment; (4) the acts that the government contends show a conspiracy and any other description of the offenses charged that would indicate the nature and scope of the activity that the government seeks to punish; and (5) the places where the events alleged to be part of the conspiracy took place.

A single conspiracy may exist even if all of the members did not know each other, or never met together, or did not know the roles all the members played. A single conspiracy may also exist even if different members joined at different times, or the membership of the group changed. Similarly, just because there were different subgroups operating in different places, or many different criminal acts committed over a long period of time, does not necessarily mean that there was more than one conspiracy. However, these are factors you may also consider in determining whether more than one conspiracy existed. The existence of a single agreement can be inferred if the evidence reveals that the alleged participants shared a common aim or purpose and that mutual dependence and assistance existed.

FINAL INSTRUCTION NO. 6 - 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 knowledge. This includes acts done or statements made before the defendant joined the conspiracy.

FINAL INSTRUCTION NO. 7 - COUNTS 2 & 3: POSSESSION

WITH INTENT TO DISTRIBUTE





In Counts 2 and 3 of the indictment, the Grand Jury charges the defendant with two separate "possession with intent" offenses involving two different controlled substances: Count 2 charges possession with intent to distribute powder cocaine, and Count 3 charges possession with intent to distribute crack cocaine. Although you must consider these charges separately, the elements of the offenses differ only as to the controlled substance in question.

At the beginning of trial, I told you that the indictment charges that each "possession with intent" offense was committed in either of two ways: personally committing the offense or aiding and abetting another in committing the offense. However, since the trial started, the aiding and abetting alternative has been withdrawn and you are now asked to consider only whether or not the defendant personally committed each "possession with intent" offense. You should not guess about or concern yourself with the reasons that the aiding and abetting alternative has been withdrawn. You are not to consider the fact that the aiding and abetting alternative has been withdrawn when deciding whether or not the government has proved, beyond a reasonable doubt, that the defendant personally committed a "possession with intent" offense.

Therefore, for you to find the defendant guilty of a "possession with intent" offense charged in the indictment, the prosecution must prove the following three essential elements beyond a reasonable doubt as to the defendant:

One, on or about February 23, 2001, the defendant was in possession of the controlled substance specified in the count under consideration, either powder cocaine for Count 2 or crack cocaine for Count 3.

You must ascertain whether or not the substance in question was in fact powder cocaine or crack cocaine, as specified in the pertinent count of the indictment. "Possession" was defined for you in Final Instruction No. 3.



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

The defendant need not know what the controlled substance is if the defendant knows that he has possession of some controlled substance.



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

Possession of a large quantity of a controlled substance is evidence from which you may, but are not required to, infer that the possessor intended to distribute the controlled substance. The term "distribute" was defined for you in Final Instruction No. 3.



For you to find the defendant guilty of a "possession with intent" offense, as charged in the indictment, the prosecution must prove all three of these essential elements beyond a reasonable doubt as to the defendant. Otherwise, you must find the defendant not guilty of that "possession with intent" offense.

FINAL INSTRUCTION NO. 8 - SPECIFIC DEFENSE



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

With regard to the conspiracy charged in Count 1 of the indictment, the defendant contends that he was not a member of any conspiracy, and that if he was, he was not a member of any conspiracy that continued to exist or began after July 19, 1996. In order for you to find the defendant guilty of Count 1 of the indictment, the government must prove beyond a reasonable doubt that the defendant was a member of a conspiracy with one or more of the objectives alleged in Count 1, that the conspiracy existed at some time within the period charged in the indictment, and that the conspiracy continued to exist or began after July 19, 1996. If the government proves only that the defendant was a member of a conspiracy that ended before July 19, 1996, even if that conspiracy had one or more of the objectives charged in Count 1, you must find the defendant not guilty of Count 1.

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

FINAL INSTRUCTION NO. 9 - QUANTITY OF

COCAINE





If you find the defendant guilty of one or more of the offenses charged in the indictment, you must also determine beyond a reasonable doubt the quantity of cocaine (either powder cocaine or crack cocaine) involved in that offense or those offenses for which he 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 powder cocaine or crack cocaine, 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 distribute, possess with intent to distribute, or manufacture crack cocaine, as charged in Count 1 of the indictment, and explained in Final Jury Instruction No. 4, is responsible for quantities of the controlled substance that he actually distributed, possessed with intent to distribute, or manufactured, or agreed to distribute, possess with intent to distribute, or manufacture. Such a defendant is also responsible for those quantities of the controlled substance that fellow conspirators distributed, possessed with intent to distribute, or manufactured, or agreed to distribute, possess with intent to distribute, or manufacture, if you find that the defendant could have reasonably foreseen, at the time he 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 possessing a controlled substance with intent to distribute it, as charged in Counts 2 and 3 of the indictment, and explained in Final Jury Instruction No. 7, is responsible for the quantity of the controlled substance charged in the pertinent count, either powder cocaine or crack cocaine, that he possessed with intent to distribute.

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 powder cocaine or crack cocaine, 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 make the determination of the quantity of the controlled substance involved in a particular offense for which a defendant can be held responsible beyond a reasonable doubt.

FINAL INSTRUCTION NO. 10 - IMPEACHMENT





In Preliminary Instruction No. 9, 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 Ira Shivers, Mark Shivers, Ricky Foy, Patrick Preston, Jeremy Altman, and Teri Altman 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 Ira Shivers, Mark Shivers, Ricky Foy, Patrick Preston, Jeremy Altman, and Teri Altman have pleaded guilty to a charge that arose out of the same events for which defendant Montreail Dean Dungy is now on trial. You cannot consider such a witness's guilty plea as any evidence of the guilt of the defendant. Rather, you can consider such a witness's guilty plea only for the purpose of determining how much, if at all, to rely upon his or 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 that Ira Shivers, Mark Shivers, Ricky Foy, and Patrick Preston are testifying pursuant to plea agreements and hope to receive reductions in their sentences in return for their cooperation with the prosecution in this case. If the prosecutor handling such a witness's case believes the witness has provided "substantial assistance," the prosecutor can file a motion to reduce the witness's sentence. The judge has no power to reduce a sentence for such a witness for substantial assistance unless the U.S. attorney files a motion requesting such a reduction. If the motion for reduction of sentence for substantial assistance is filed by the U.S. attorney, then it is up to the judge to decide whether to reduce the sentence of that witness at all, and if so, how much to reduce it. You may give the testimony of such witnesses such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by the witness's hope of receiving a reduction in sentence is for you to decide.

2. You have heard evidence that Jeremy Altman and Teri Altman had an arrangement with the government under which they each pleaded guilty to state drug distribution charges and received sentences based, in part, upon their cooperation with law enforcement, including providing information helpful in this case and testifying pursuant to a limited use immunity arrangement. 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. 11 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF





Montreail Dean Dungy is presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion that might arise from the arrest or charge of this defendant or the fact that he is here in court. The presumption of innocence remains with the defendant throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to the defendant only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against him.

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

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

FINAL INSTRUCTION NO. 12 - REASONABLE DOUBT



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

FINAL INSTRUCTION NO. 13 - DUTY TO DELIBERATE



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

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

Remember that if, in your individual judgment, the evidence fails to establish the defendant's guilt beyond a reasonable doubt on the offense charged against him, then the defendant should have your vote for a not guilty verdict on the offense. If all of you reach the same conclusion, then the verdict of the jury must be not guilty for the defendant on the offense. Of course, the opposite also applies. If, in your individual judgment, the evidence establishes the defendant's guilt beyond a reasonable doubt on the offense charged, then your vote should be for a verdict of guilty against the defendant on the charge, and if all of you reach that conclusion, then the verdict of the jury must be guilty for the defendant on the charge. As I instructed you earlier, the burden is upon the prosecution to prove beyond a reasonable doubt every essential element of the 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. 14 - DUTY DURING DELIBERATIONS



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

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

Second, if the defendant is guilty, the sentence to be imposed is my responsibility. You may not consider punishment of Montreail Dean Dungy 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 9th day of November, 2001.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,
Plaintiff,

No. CR 01-3038-MWB

vs.



VERDICT FORM

MONTREAIL DEAN DUNGY,
Defendant.

____________________

We, the Jury, unanimously find defendant Montreail Dean Dungy guilty or not guilty as follows:

COUNT 1 VERDICT
Step 1: On the charge of conspiracy, as explained in Final Jury Instruction No. 4, please mark your verdict. ____ Not Guilty

____ Guilty

Step 2: If you have found defendant Montreail Dean Dungy guilty of this offense, please indicate the objective or objectives of the conspiracy.
_____ Distribution of crack cocaine
_____ Possession with intent to distribute crack cocaine
_____ Manufacturing or attempting to manufacture crack cocaine
Step 3: If you have found defendant Montreail Dean Dungy guilty of this offense, for each offense that you found was an objective of the conspiracy, please indicate the quantity of crack cocaine for which you find beyond a reasonable doubt that Mr. Dungy can be held responsible, as quantity of cocaine is explained in Final Jury Instruction No. 9.
Distribution of _____ 50 grams or more of crack cocaine
_____ 5 grams or more, but less than 50 grams
_____ Less than 5 grams
Possession with intent to distribute of _____ 50 grams or more of crack cocaine
_____ 5 grams or more, but less than 50 grams
_____ Less than 5 grams
Manufacture or attempted manufacture of _____ 50 grams or more of crack cocaine
_____ 5 grams or more, but less than 50 grams
_____ Less than 5 grams
COUNT 2 VERDICT
Step 1: On this charge of possession of powder cocaine with intent to distribute it, as explained in Final Jury Instruction No. 7, please mark your verdict. ____ Not Guilty

____ Guilty

Step 2: If you have found defendant Montreail Dean Dungy guilty of this offense, please indicate the quantity of powder cocaine for which you find beyond a reasonable doubt that he can be held responsible, as quantity of cocaine is explained in Final Jury Instruction No. 9.
_____ 500 grams or more _____ Less than 500 grams
COUNT 3 VERDICT
Step 1: On the charge of possession of crack cocaine with intent to distribute it, as explained in Final Jury Instruction No. 7, please mark your verdict. _____ Not Guilty

_____ Guilty

Step 2: If you have found defendant Montreail Dean Dungy guilty of this offense, please indicate the quantity of crack cocaine for which you find beyond a reasonable doubt that he can be held responsible, as quantity of cocaine is explained in Final Jury Instruction No. 9.
_____ 5 grams or more _____ Less than 5 grams


________________

Date



_______________________________

Foreperson



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror