IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 00-4114-MWB

vs.



PRELIMINARY AND

FINAL INSTRUCTIONS

TO THE JURY

ROXANN HARLAN,
Defendant.

____________________





TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - STATEMENT OF THE CASE 2

NO. 3 - DUTY OF JURORS 3

NO. 4 - ELEMENTS OF THE OFFENSES 4

NO. 5 - OUTLINE OF TRIAL 7

NO. 6 - PRESUMPTION OF INNOCENCE 8

NO. 7 - REASONABLE DOUBT 9

NO. 8 - DEFINITION OF EVIDENCE 10

NO. 9 - CHARTS AND SUMMARIES 12

NO. 10 - CREDIBILITY OF WITNESSES 13

NO. 11 - BENCH CONFERENCES AND RECESSES 15

NO. 12 - OBJECTIONS 16

NO. 13 - NOTE-TAKING 17

NO. 14 - CONDUCT OF THE JURY 18

FINAL INSTRUCTIONS 20

NO. 1 - INTRODUCTION 20

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

NO. 3 - COUNT 1: RETENTION OF TRIBAL FUNDS IN EXCESS OF

$1,000 22

NO. 4 - COUNT 1: "LESSER-INCLUDED OFFENSE" OF RETENTION

OF TRIBAL FUNDS 25

NO. 5 - SPECIFIC DEFENSE 26

NO. 6 - IMPEACHMENT 27

NO. 7 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF 29

NO. 8 - REASONABLE DOUBT 30

NO. 9 - DUTY TO DELIBERATE 31

NO. 10 - DUTY DURING DELIBERATIONS 33



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 Roxann Harlan. In an indictment filed in this case, a Grand Jury charges Ms. Harlan with two separate offenses:

Count 1 of the indictment charges that, from about January 1, 1999, to about January 1, 2000, Ms. Harlan knowingly retained moneys, funds, and credits in excess of $1,000, belonging to the Omaha Tribe of Nebraska and Iowa, an Indian tribal organization, knowing them to have been willfully misapplied to her own account, with intent to convert them to her own use. This charge will be referred to in these instructions as "retention of tribal funds in excess of $1,000."

Count 2 of the indictment charges that, about the end of July or early August of 2001, Ms. Harlan knowingly used intimidation, physical force, and threats, and attempted to do so, against Maggie Cayou, the daughter of Sharon Freemont, who is a witness against Ms. Harlan in this case, with intent to influence, delay, or prevent the testimony of Ms. Freemont against the defendant. This charge will be referred to in these instructions as "witness tampering."

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 her; therefore, she is presumed to be innocent unless and until the prosecution proves her guilt beyond a reasonable doubt on an offense charged against her.

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 her. 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 Roxann Harlan, not anyone else, is on trial here, and that this defendant is on trial only for the crimes charged against her, 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 her considered separately. Therefore, you must return a separate, unanimous verdict on each charge.

PRELIMINARY INSTRUCTION NO. 4 - ELEMENTS OF THE OFFENSES



To help you follow the evidence, I will give you a summary of the elements of each of the offenses charged in the indictment. As a preliminary matter, the indictment charges that the offenses were committed "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.



COUNT 1: RETENTION OF TRIBAL FUNDS IN EXCESS OF $1,000

Charged offense

Count 1 of the indictment charges that, from about January 1, 1999, to about January 1, 2000, Ms. Harlan knowingly retained moneys, funds, and credits in excess of $1,000, belonging to the Omaha Tribe of Nebraska and Iowa, an Indian tribal organization, knowing them to have been willfully misapplied to her own account, with intent to convert them to her own use. For you to find the defendant guilty of this charge of "retention of tribal funds in excess of $1,000," as charged in Count 1, the government must prove the following five essential elements beyond a reasonable doubt as to the defendant:

One, at some time between about January 1, 1999, and about January 1, 2000, moneys, funds, or credits belonging to an Indian tribal organization were willfully misapplied to the defendant's own account;

Two, the defendant knew that moneys, funds, or credits belonging to the Indian tribal organization had been willfully misapplied to her own account;

Three, the defendant knowingly retained the moneys, funds, or credits;

Four, the defendant retained the moneys, funds, or credits with intent to convert them to her own use; and

Five, the value of the moneys, funds, or credits exceeded the sum of $1,000.

Lesser-included offense

If you find that defendant Roxann Harlan is not guilty of the charged offense of "retention of tribal funds in excess of $1,000," or if, after all reasonable efforts, you are unable to reach a verdict on that offense, you should record that decision on the verdict form and go on to consider whether Roxann Harlan is guilty only of the "lesser included offense" of "retention of tribal funds." For you to find the defendant guilty of this "lesser included" offense, the prosecution must prove the first four elements of the charged offense as to the defendant. However, the fifth element of the charged offense is not an element of the "lesser included" offense of "retention of tribal funds."



COUNT 2: WITNESS TAMPERING

Count 2 of the indictment charges that, about the end of July or early August of 2001, Ms. Harlan knowingly used intimidation, physical force, and threats, and attempted to do so, against Maggie Cayou, the daughter of Sharon Freemont, who is a witness against Ms. Harlan in this case, with intent to influence, delay, or prevent the testimony of Ms. Freemont against the defendant. For you to find the defendant guilty of this charge of "witness tampering," the government must prove the following two essential elements beyond a reasonable doubt as to the defendant:

One, about the end of July or early August of 2001, the defendant knowingly used intimidation, physical force, or threats, or knowingly attempted to use intimidation, physical force, or threats, against Maggie Cayou; and

Two, the defendant did so with the intent to influence, delay, or prevent the testimony of Sharon Freemont in the criminal trial of the defendant in this case.



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 Roxann Harlan 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 she is here in court. The presumption of innocence remains with the defendant throughout the trial. That presumption alone is sufficient to find her not guilty. The presumption of innocence may be overcome as to the defendant only if the prosecution proves, beyond a reasonable doubt, every essential element of a crime charged against her.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to the defendant to prove 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 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 - CHARTS AND SUMMARIES



Certain charts and summaries may be shown to you in order to help explain the facts disclosed by the books, records, or other underlying evidence in the case. If I do not specifically admit them as evidence, those charts or summaries will be used for convenience, but are not themselves evidence or proof of any facts. If such charts and summaries do not correctly reflect the facts shown by the evidence in the case, you should disregard those charts and summaries and determine the facts from the books, records, or other underlying documents admitted as evidence.

On the other hand, certain schedules, summaries, or charts may be admitted in evidence. You may use those schedules, summaries, or charts as evidence, even though the underlying documents and records are not admitted as evidence. However, if the accuracy or authenticity of those schedules, summaries, or charts is challenged, it will be for you to decide how much weight, if any, you will give to them. In making that decision, you should consider all of the testimony you heard about the way in which they were prepared.

PRELIMINARY INSTRUCTION NO. 10 - 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 her 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. 11 - 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. 12 - 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. 13 - 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. 14 - 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 10th day of December, 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.

At the beginning of the trial I told you that the defendant was accused of two separate offenses: "retention of tribal funds in excess of $1,000," as charged in Count 1, and "witness tampering," as charged in Count 2. However, the offense of "witness tampering" charged in Count 2 is no longer part of this case. That means it is no longer before you or me. You should not guess about or concern yourselves with the reason why Count 2 is no longer part of this case. You must decide only whether or not the defendant is guilty or not guilty of the offense of "retention of tribal funds in excess of $1,000," as charged in Count 1, or the "lesser-included offense" of "retention of tribal funds." You are not to consider the fact that Count 2 is no longer part of this case in deciding if the Government has proved, beyond a reasonable doubt, the remaining charge of "retention of tribal funds in excess of $1,000," as charged in Count 1, or the "lesser-included offense" of "retention of tribal funds."

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 offense charged in Count 1 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 her acts or omissions were unlawful.

FINAL INSTRUCTION NO. 3 - COUNT 1: RETENTION OF

TRIBAL FUNDS IN EXCESS OF $1,000





Count 1 of the indictment charges that, from about January 1, 1999, to about January 1, 2000, Ms. Harlan knowingly retained moneys, funds, and credits in excess of $1,000, belonging to the Omaha Tribe of Nebraska and Iowa, an Indian tribal organization, knowing them to have been willfully misapplied to her own account, with intent to convert them to her own use. For you to find the defendant guilty of this charge of "retention of tribal funds in excess of $1,000," as charged in Count 1, the government must prove the following five essential elements beyond a reasonable doubt as to the defendant:

One, at some time between about January 1, 1999, and about January 1, 2000, moneys, funds, or credits belonging to an Indian tribal organization were willfully misapplied to the defendant's own account.

The prosecution must prove that the moneys, funds, or credits belonged to "an Indian tribal organization." The prosecution contends that the Omaha Tribe of Nebraska and Iowa is such "an Indian tribal organization." "An Indian tribal organization" means any tribe, band, or community of Indians which is subject to the laws of the United States relating to Indian affairs or any corporation, association, or group which is organized under any such laws. Whether or not the Omaha Tribe of Nebraska is "an Indian tribal organization" is for you to decide.

Moneys, funds, or credits belonging to the Omaha Tribe of Nebraska and Iowa were "willfully misapplied" to the defendant's own account if some person voluntarily and intentionally applied, credited, or transferred money, funds, or credits belonging to the Omaha Tribe of Nebraska and Iowa to the defendant's account for the benefit, use, or gain of the defendant or some other person, knowing that he or she had no right to do so. The prosecution does not have to prove that the moneys, funds, or credits were misapplied with intent to injure or defraud the Omaha Tribe of Nebraska and Iowa. The person who willfully misapplied the moneys, funds, or credits does not have to be the defendant, or named in the indictment, or otherwise charged with a crime.



Two, the defendant knew that moneys, funds, or credits belonging to the Indian tribal organization had been willfully misapplied to her own account.

"Knowledge" was defined for you in Final Jury Instruction No. 2. The prosecution must prove that the defendant knew the source of the moneys, funds, or credits and that they were willfully misapplied to her own account. Thus, in this case, the prosecution must prove that the defendant knew that the moneys, funds, or credits belonged to the Omaha Tribe of Nebraska and Iowa and that they had been willfully misapplied to her own account. The prosecution does not have to prove that the defendant knew that the Omaha Tribe of Nebraska and Iowa was "an Indian tribal organization," as specifically defined above.



Three, the defendant knowingly retained the moneys, funds, or credits.

Again, "knowledge" was defined for you in Final Jury Instruction No. 2. The defendant knowingly retained the moneys, funds, or credits if she kept them in her custody or under her control.



Four, the defendant retained the moneys, funds, or credits with intent to convert them to her own use.

"Intent" was defined for you in Final Jury Instruction No. 2. "Conversion" is the act of dominion or control over property, such as moneys, funds, or credits, that seriously interferes with the owner's rights. "Conversion" may be consummated without any intent to keep the property and without any wrongful taking of the property, where the initial possession of the property by the converter was entirely lawful. Conversion may include misuse or abuse of property. It may reach use in an unauthorized manner or to an unauthorized extent of property placed in one's custody for a limited use. Money rightfully taken into one's custody may be converted without any intent to keep it merely by commingling it with the custodian's own money, if the custodian was under a duty to keep it separate and intact. Similarly, the knowing and unauthorized exercise of dominion over another's property where possession is wrongful from the outset is also a "conversion," just as the knowing and unauthorized exercise of dominion over another's property after possession is legally obtained is a "conversion." In other words, property may be "converted" if a person never had lawful possession of the property.

The prosecution must prove that the defendant intended to convert the moneys, funds, or credits. However, the prosecution does not have to prove that the defendant succeeded in converting the property or that she intended to injure or defraud the Omaha Tribe of Nebraska and Iowa.



Five, the value of the moneys, funds, or credits exceeded the sum of $1,000.

For you to find the defendant guilty of the crime of "retention of tribal funds in excess of $1,000," 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 the defendant. Otherwise, you must find the defendant not guilty of "retention of tribal funds in excess of $1,000," as charged in Count 1 of the indictment.

FINAL INSTRUCTION NO. 4 - COUNT 1: "LESSER-INCLUDED

OFFENSE" OF RETENTION OF TRIBAL FUNDS





If you find that defendant Roxann Harlan is not guilty of the offense of "retention of tribal funds in excess of $1,000," as charged in Count 1 of the indictment, and explained in Final Jury Instruction No. 3, or if, after all reasonable efforts, you are unable to reach a verdict on that offense, you should record that decision on the verdict form and go on to consider whether Roxann Harlan is guilty only of the "lesser-included offense" of "retention of tribal funds."

For you to find the defendant guilty of this "lesser-included offense," the prosecution must prove the first four elements of the charged offense as to the defendant, as those elements are set out and explained in Final Jury Instruction No. 3. However, the fifth element of the charged offense is not an element of the "lesser-included offense" of "retention of tribal funds." Therefore, if you find that the first four elements of the charged offense have been proved beyond a reasonable doubt, but that the value of the moneys, funds, or credits at issue did not exceed $1,000, then you can only find the defendant guilty of this "lesser-included offense," not the offense as charged in Count 1 of the indictment.

FINAL INSTRUCTION NO. 5 - SPECIFIC DEFENSE



In addition to denying that the prosecution has proved beyond a reasonable doubt all of the essential elements of the offense charged or the "lesser-included offense," the defendant also asserts the following specific defense:

As to the charge of "retention of tribal funds in excess of $1,000," as charged in Count 1, and the "lesser-included offense" of "retention of tribal funds," the defendant asserts as a specific defense that she acted in good faith, because she honestly believed that her pay checks were correct. The defendant acted in "good faith" if she acted on an opinion honestly held, only made a mistake in judgment, or was only careless. "Good faith" is a complete defense to the charge in Count 1 and the "lesser-included offense" to that charge if the defendant's good faith belief that her pay checks were correct was inconsistent with an intent to convert tribal funds to her own use, as intent to convert tribal funds is explained in element four of Final Jury Instruction No. 3. The defendant's good faith belief does not have to be reasonable; however, the defendant did not act in good faith if she had actual notice that her pay checks were not correct and she intended to make unauthorized use of funds that did not belong to her. You may consider evidence that the defendant acted in good faith, together with all of the other evidence, in determining whether or not the defendant acted with the intent to convert tribal funds to her own use, as required to find her guilty of the offense charged in Count 1 or the "lesser-included offense."

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

FINAL INSTRUCTION NO. 6 - IMPEACHMENT



In Preliminary Instruction No. 10, 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 witness Sharon Freemont has been convicted of a crime. You may use that evidence only to help you decide whether or not to believe this witness and how much weight to give her testimony.

Similarly, you have heard evidence that Sharon Freemont has pleaded guilty to a charge that arose out of the same events for which defendant Roxann Harlan 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 her testimony.

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

1. You have heard testimony from Sharon Freemont that she participated in the crime charged against the defendant. Her testimony was received in evidence and you may consider it. You may give the testimony of this witness such weight as you think it deserves. Whether or not the testimony of such a witness may have been influenced by her desire to please the government or to strike a good bargain with the government about her own situation is for you to determine.

2. You have heard evidence that Sharon Freemont had an arrangement with the government under which she would not be charged with any additional charges if she provided information to the government. Her testimony was received in evidence and you may consider it. You may give the testimony of this witness such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by 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. 7 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF





Roxann Harlan 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 she is here in court. The presumption of innocence remains with the defendant throughout the trial. That presumption alone is sufficient to find her not guilty. The presumption of innocence may be overcome as to the defendant only if the prosecution proves, beyond a reasonable doubt, every essential element of the crime charged or the "lesser-included offense."

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to the defendant to prove 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 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 the offense charged against her in the indictment or the "lesser-included offense," you must find her not guilty of that offense or "lesser-included offense."

FINAL INSTRUCTION NO. 8 - 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. 9 - 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 her, 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. 10 - 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 Roxann Harlan 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 11th day of December, 2001.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



UNITED STATES OF AMERICA,
Plaintiff,

No. CR 00-4114-MWB

vs.



VERDICT FORM

ROXANN HARLAN,
Defendant.

____________________



We, the Jury, unanimously find defendant Roxann Harlan guilty or not guilty as follows:

COUNT 1 VERDICT
Step 1: On the charge of "retention of tribal funds in excess of $1,000," as explained in Final Jury Instruction No. 3, please mark your verdict. ____ Not Guilty

____ Guilty

____ No Verdict

Step 2: If you have found defendant Roxann Harlan not guilty of the offense as charged in Count 1, or if you have indicated that you have reached no verdict on this offense in Step 1, on the "lesser-included offense" of "retention of tribal funds," as explained in Final Jury Instruction No. 4, please mark your verdict.

____ Not Guilty

____ Guilty





________________

Date



_______________________________

Foreperson



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror