IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,
Plaintiff, No. CR 97-3008-MWB
vs.

PRELIMINARY AND

FINAL INSTRUCTIONS

TO THE JURY

AURELIO J. ORTIZ, JR., SARAH ANN KOZAK, and RAMIRO ASTELLO,
Defendants.

____________________

TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - GENERAL

NO. 3 - ELEMENTS OF OFFENSES

NO. 4 - OUTLINE OF TRIAL

NO. 5 - PRESUMPTION OF INNOCENCE

NO. 6 - REASONABLE DOUBT

NO. 7 - DEFINITION OF EVIDENCE

NO. 8 - CREDIBILITY OF WITNESSES

NO. 9 - BENCH CONFERENCES AND RECESSES

NO. 10 - OBJECTIONS

NO. 11 - NOTE-TAKING

NO. 12 - CONDUCT OF THE JURY

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - DUTY OF JURORS

NO. 3 - NATURE OF AN INDICTMENT

NO. 4 - OFFENSES CHARGED

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

NO. 6 - COUNT I: KIDNAPPING

NO. 7 - ELEMENTS OF KIDNAPPING

NO. 8 - AIDING AND ABETTING KIDNAPPING

NO. 9 - COUNT II: CONSPIRACY TO COMMIT KIDNAPPING

NO. 10 - SINGLE OR MULTIPLE CONSPIRACIES

NO. 11 - WITHDRAWAL

NO. 12 - ACTS AND STATEMENTS OF CO-CONSPIRATORS

NO. 13 - CO-CONSPIRATOR LIABILITY FOR KIDNAPPING

NO. 14 - COUNT III: USING OR CARRYING A FIREARM

NO. 15 - ELEMENTS OF USING OR CARRYING A FIREARM

NO. 16 - AIDING AND ABETTING USING OR CARRYING A

FIREARM

NO. 17 - CO-CONSPIRATOR LIABILITY FOR THE FIREARM

OFFENSE

NO. 18 - ORTIZ'S AND KOZAK'S DEFENSES

NO. 19 - ASTELLO'S DEFENSES

NO. 20 - DEFENSE OF DRUG USE

NO. 21 - IMPEACHMENT AND TESTIMONY OF CERTAIN

WITNESSES

NO. 22 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

NO. 23 - REASONABLE DOUBT

NO. 24 - DUTY TO DELIBERATE

NO. 25 - DUTY DURING DELIBERATIONS



VERDICT FORM



PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS

Members of the jury, these preliminary instructions are given to help you better understand the trial and your role in it. Consider these instructions, together with any oral instructions given to you during the trial and the written instructions given at the end of the trial, and apply them as a whole to the facts of the case. In considering these instructions, the order in which they are given is not important.



PRELIMINARY INSTRUCTION NO. 2 - GENERAL

This is a criminal case brought by the United States of America against defendants Aurelio Ortiz, Jr., Sarah Ann Kozak, and Ramiro Astello. The United States charges each of these defendants with three separate offenses. First, in Count I of an indictment, the United States charges Mr. Astello, Ms. Kozak, and Mr. Ortiz with the crime of kidnapping or aiding and abetting kidnapping. More specifically, this count of the indictment charges that Mr. Astello, Ms. Kozak, and Mr. Ortiz kidnapped Gregory Sky Erickson on or about June 6, 1997, and transported him from Emmet County, Iowa, and from and through other counties in Iowa, to Jackson County, Minnesota, or that they aided and abetted in those activities. Second, in Count II of the same indictment, the United States charges Mr. Astello, Ms. Kozak, and Mr. Ortiz with the crime of conspiracy to commit kidnapping. This count of the indictment charges Mr. Astello, Ms. Kozak, and Mr. Ortiz with conspiring, with each other and with persons known and unknown, from on or about June 5, 1997, and continuing thereafter until on or about June 17, 1997, to kidnap Gregory Sky Erickson. Third, in Count III of the same indictment, the United States charges Mr. Astello, Ms. Kozak, and Mr. Ortiz with the crime of knowingly using or carrying a firearm during and in relation to crimes of violence and drug trafficking or aiding and abetting the using or carrying of a firearm. This count of the indictment charges that Mr. Astello, Ms. Kozak, and Mr. Ortiz knowingly used or carried a firearm during and in relation to kidnapping and conspiracy to commit kidnapping, as set forth in Counts I and II, and in relation to a conspiracy to distribute and possess with intent to distribute a controlled substance, in the course of which violations Gregory Sky Erickson was killed, or that they aided and abetted the use or carrying of a firearm.

These charges are set forth in what is called an indictment. An indictment is simply an accusation. It is not evidence of anything. Mr. Astello, Ms. Kozak, and Mr. Ortiz have each pleaded not guilty, and each is presumed to be innocent unless and until the prosecution proves his or her guilt beyond a reasonable doubt.

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

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you. Do not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

Finally, please remember that only Mr. Astello, Ms. Kozak, and Mr. Ortiz, not anyone else, are on trial here, and that each defendant is on trial only for the crimes charged against him or her, not for anything else. You must give separate consideration to the evidence about each individual defendant. Also keep in mind that each count charges a separate crime. Therefore, in reaching your verdict, consider each defendant separately and independently and also consider each offense charged against each defendant separately and independently.



PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF OFFENSES

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

Count I of the indictment charges Mr. Astello, Ms. Kozak, and Mr. Ortiz with the crime of kidnapping. The elements of this offense are the following:

One, on or about June 6, 1997, the defendant knowingly and willfully seized, confined, kidnapped, abducted, or carried away Gregory Sky Erickson against Erickson's will from Emmet County, Iowa, and from and through other counties in Iowa;

Two, the defendant knowingly and willfully held Gregory Sky Erickson against his will for ransom, reward, or other reason that the defendant considered of sufficient benefit to him or her, or for some purpose of his or her own; and

Three, while Gregory Sky Erickson was held against his will, the defendant willfully transported Erickson and, in doing so, traveled from Iowa to Minnesota.

Count II of the indictment charges Mr. Astello, Ms. Kozak, and Mr. Ortiz with the crime of conspiracy to commit kidnapping. The elements of this offense are the following:

One, on or about June 5, 1997, and continuing thereafter until on or about June 17, 1997, two or more persons reached an agreement or came to an understanding to kidnap Gregory Sky Erickson against Erickson's will from Emmet County, Iowa, and from and through other counties in Iowa;

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, but in no event later than the time Gregory Sky Erickson was killed;

Three, at the time the defendant joined in the agreement or understanding, he or she knew the purpose of the agreement or understanding; and

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

Count III of the indictment charges Mr. Astello, Ms. Kozak, and Mr. Ortiz with the crime of knowingly using or carrying a firearm during and in relation to crimes of violence and drug trafficking. The elements of this offense are the following:

One, the defendant committed the crimes of kidnapping, conspiracy to commit kidnapping, or conspiracy to distribute or possess with intent to distribute controlled substances; and

Two, during and in relation to the commission of one of those crimes, the defendant knowingly used or carried a firearm.

Count I of the indictment also charges Mr. Astello, Ms. Kozak, and Mr. Ortiz with aiding and abetting the offense of kidnapping. Count III also charges Mr. Astello, Ms. Kozak, and Mr. Ortiz with aiding and abetting the offense of using or carrying a firearm during and in relation to crimes of violence and drug trafficking. A person may also be found guilty of an offense even if he or she did not do every act constituting the offense charged, if he or she aided and abetted the commission of that offense. The elements of aiding and abetting are the following:

One, the aider and abettor knew that the crime charged was being committed or was going to be committed;

Two, the aider and abettor knowingly acted in some way for the purpose of causing, encouraging, or aiding the commission of the crime charged; and

Three, as to aiding and abetting kidnapping, the aider and abettor acted knowingly and willfully for the purpose of kidnapping, holding, and transporting Gregory Sky Erickson.

A defendant may also be found guilty of a substantive offense charged in Count I or Count III, even though that defendant did not participate in, agree to, or know of the commission of the substantive offense, if you find that defendant was a party to a conspiracy to commit that offense or was a party to another conspiracy, and the substantive offense was committed by others in furtherance of the conspiracy, provided that you find that the essential elements of the offense charged in Count I or Count III have been established beyond a reasonable doubt and provided that you also find the following beyond a reasonable doubt:

First, that the offense charged in Count I or Count III was committed pursuant to the conspiracy, and

Second, that the particular defendant was a member of the conspiracy at the time the offense charged was committed, and

Third, that the defendant could have reasonably foreseen the offense charged as a necessary or natural consequence of the conspiracy.

This is only a preliminary outline of the elements of the offenses charged. At the end of the trial, I will give you final written instructions on these matters. Because they are more detailed, those final instructions govern on the elements of the offenses with which Mr. Astello, Ms. Kozak, and Mr. Ortiz are charged.



PRELIMINARY INSTRUCTION NO. 4 - OUTLINE OF TRIAL

The trial will proceed as follows:

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

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

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



PRELIMINARY INSTRUCTION NO. 5 - PRESUMPTION OF INNOCENCE

Aurelio Ortiz, Jr., Sarah Ann Kozak, and Ramiro Astello are each presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion that might arise from the arrest or charge of Aurelio Ortiz, Jr., Sarah Ann Kozak, and Ramiro Astello, or the fact that they are here in court. The presumption of innocence remains with Aurelio Ortiz, Jr., Sarah Ann Kozak, and Ramiro Astello throughout the trial. That presumption alone is sufficient to find them not guilty. The presumption of innocence may be overcome as to any defendant only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against that defendant.

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

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



PRELIMINARY INSTRUCTION NO. 6 - REASONABLE DOUBT

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



PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE

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

Evidence is:

1. Testimony in person.

2. Testimony previously given, which includes depositions.

3. Exhibits I admit into evidence.

4. Stipulations, which are agreements between the parties.

5. Any other matter I admit into evidence.

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

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

The following are not evidence:

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

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

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

Furthermore, a particular item of evidence is sometimes received for a limited purpose only. That is, it can be used by you only for one particular purpose, and not for any other purpose. I will tell you if that occurs, and instruct you on the purposes for which the item can and cannot be used.

Also, the weight of the evidence is not determined by the number of witnesses testifying as to the existence or non-existence of any fact. Likewise, the weight of the evidence should not be determined by the number or volume of documents or exhibits introduced by either the prosecution or the defendant. Do not give greater consideration to documents or exhibits, because of their volume and number, or the fact that they are in written form, than you give to any other evidence admitted in this case.



PRELIMINARY INSTRUCTION NO. 8 - CREDIBILITY OF WITNESSES

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

In deciding what testimony to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe. In deciding whether or not to believe a witness, keep in mind that people sometimes see or hear things differently and sometimes forget things.

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

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

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



PRELIMINARY INSTRUCTION NO. 9 - BENCH CONFERENCES AND RECESSES

During the trial it may be necessary for me to talk with the lawyers out of the hearing of the jury, either by having a bench conference here while the jury is present in the courtroom, or by calling a recess. Please be patient, because while you are waiting, we are working. The purpose of these conferences is to decide how certain evidence is to be treated under the rules of evidence, to avoid confusion and error, and to save your valuable time. We will, of course, do what we can to keep the number and length of these conferences to a minimum.



PRELIMINARY INSTRUCTION NO. 10 - OBJECTIONS

The lawyers may make objections and motions during the trial that I must rule upon. If I sustain an objection to a question before it is answered, do not draw any inferences or conclusions from the question itself. Also, the lawyers have a duty to object to testimony or other evidence that they believe is not properly admissible. Do not hold it against a lawyer or the party the lawyer represents because the lawyer has made objections. Finally, do not infer or conclude from any ruling or other comment I may make that I have any opinions on the merits of the case favoring one side or the other.



PRELIMINARY INSTRUCTION NO. 11 - NOTE-TAKING

If you want to take notes during the trial, you may. However, it is difficult to take detailed notes and pay attention to what the witnesses are saying. If you do take notes, be sure that your note-taking does not interfere with listening to and considering all the evidence. Also, if you take notes, do not discuss them with anyone before you begin your deliberations. Do not take your notes with you at the end of the day. Be sure to leave them on your chair in the courtroom. The court attendant will safeguard the notes. No one will read them. The notes will remain confidential throughout the trial and will be destroyed at the conclusion of the trial.

If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence. You cannot give this responsibility to someone who is taking notes. We depend on the judgment of all members of the jury; you must all remember and consider the evidence in this case.

Whether or not you take notes, you should rely on your own memory regarding what was said. Your notes are not evidence. A juror's notes are not more reliable than the memory of another juror who chooses to consider carefully the evidence without taking notes. You should not be overly influenced by the notes.

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



PRELIMINARY INSTRUCTION NO. 12 - CONDUCT OF THE JURY

Finally, to insure fairness, you as jurors must obey the following rules:

First, do not talk among yourselves about this case, or about anyone involved with it, until the end of the case when you go to the jury room to decide on your verdict.

Second, do not talk with anyone else about this case, or about anyone involved with it, until the trial has ended and you have been discharged as jurors.

Third, when you are outside the courtroom do not let anyone tell you anything about the case, or about anyone involved with it until the trial has ended and your verdict has been accepted by me. If someone should try to talk to you about the case during the trial, please report it to me.

Fourth, during the trial you should not talk with or speak to any of the parties, lawyers, or witnesses involved in this case--you should not even pass the time of day with any of them. It is important that you not only do justice in this case, but that you also give the appearance of doing justice. If a person from one side of the lawsuit sees you talking to a person from the other side--even if it is simply to pass the time of day--an unwarranted and unnecessary suspicion about your fairness might be aroused. If any lawyer, party, or witness does not speak to you when you pass in the hall, ride the elevator or the like, it is because they are not supposed to talk or visit with you.

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. In fact, until the trial is over I suggest that you avoid reading any newspapers or news journals at all, and avoid listening to any TV or radio newscasts at all. If there are news reports about this case, you might inadvertently find yourself reading or listening to something before you could do anything about it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case you will know more about the matter than anyone will learn through the news media.

Sixth, do not do any research or make any investigation about the case on your own.

Seventh, do not make up your mind during the trial about what the verdict should be. Keep an open mind until after you have gone to the jury room to decide the case and you and your fellow jurors have discussed the evidence.

Eighth, if at anytime during the trial you have a problem that you would like to bring to my attention, or if you feel ill or need to go to the restroom, please send a note to the Court Security Officer, who will deliver it to me. I want you to be comfortable, so please do not hesitate to inform me of any problem.

DATED this 9th day of July, 1998.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE



FINAL INSTRUCTION NO. 1 - INTRODUCTION

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

The instructions I am about to give you, as well as the preliminary instructions given to you at the beginning of the trial, are in writing and will be available to you in the jury room. I emphasize, however, that the final instructions are not more important than the preliminary ones, nor are written instructions more important than oral ones. All instructions, whenever given and whether in writing or not, must be followed. This is true even though some of the instructions I gave you at the beginning of the trial are not repeated here.

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



FINAL INSTRUCTION NO. 2 - DUTY OF JURORS

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

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you. Do not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be.

Finally, please remember that only Mr.Ortiz, Ms. Kozak, and Mr. Astello, not anyone else, are on trial here, and that each defendant is on trial only for the crimes charged against him or her, not for anything else.



FINAL INSTRUCTION NO. 3 - NATURE OF AN INDICTMENT

The charges against these defendants are set forth in what is called an indictment. As I told you at the beginning of this trial, an indictment is simply an accusation. It is not evidence of anything. Mr. Ortiz, Ms. Kozak, and Mr. Astello have each pleaded not guilty, and each is presumed to be innocent unless and until the prosecution proves his or her guilt beyond a reasonable doubt.

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



FINAL INSTRUCTION NO. 4 - OFFENSES CHARGED

The United States charges each of these defendants with three separate offenses. First, in Count I, the United States charges these defendants with kidnapping Gregory Sky Erickson. The United States has three theories for finding each of the defendants guilty on this charge: (1) each defendant personally committed the offense; (2) each defendant aided and abetted in the commission of the offense by another; and (3) the kidnapping was committed pursuant to a conspiracy in which the defendant was a member.

Second, in Count II, the United States charges these defendants with conspiracy to kidnap Gregory Sky Erickson.

Third, in Count III, the United States charges these defendants with the crime of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime. Again, the United States has three theories for finding each of the defendants guilty on this charge: (1) each defendant personally committed the offense; (2) each defendant aided and abetted in the commission of the offense by another; and (3) the firearm offense was committed pursuant to a conspiracy in which the defendant was a member. On the third theory, the United States argues that the firearm offense was committed pursuant to either of two conspiracies: the conspiracy to kidnap Gregory Sky Erickson, or a conspiracy to distribute or to possess with intent to distribute controlled substances.

I will explain to you the elements of each offense and each theory for finding the defendants guilty in more detail in the following instructions. However, keep in mind that each count charges a separate crime and you must give separate consideration to the evidence about each individual defendant. Thus, in reaching your verdict, consider each defendant separately and independently and also consider each offense charged against each defendant separately and independently. Therefore, the fact that you return a verdict of guilty or not guilty to one defendant should not, in any way, affect your verdict regarding any other defendant.



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

AND "WILLFULNESS"

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

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

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

You are further instructed that you may find that a defendant acted knowingly if you find beyond a reasonable doubt that the defendant was aware of a high probability of some fact, but he or she deliberately avoided learning the truth. The element of knowledge may be inferred if a defendant deliberately closed his or her eyes to what would otherwise have been obvious to him or her. However, you may not find that a defendant acted knowingly if the defendant actually believed that the fact at issue was true, or if you find that the defendant was simply careless. A showing of negligence, mistake, or carelessness is not sufficient to support a finding of knowledge.



FINAL INSTRUCTION NO. 6 - COUNT I: KIDNAPPING

The charge of kidnapping in Count I is submitted to you by the prosecution on three theories. First, the charge is submitted to you on the prosecution's theory that each defendant personally committed the kidnapping offense. The elements that must be proved to establish guilt under this theory are explained to you in Final Instruction No. 7.

The prosecution's second theory is that each defendant aided and abetted the commission of the kidnapping offense. Aiding and abetting kidnapping is explained to you in Final Instruction No. 8.

The prosecution's third theory is that the kidnapping offense in Count I was committed by a co-conspirator of the defendants during the course and in furtherance of the conspiracy charged in Count II. This theory is explained to you in Final Instruction No. 13. You must remember that you can only consider this third theory if you first find beyond a reasonable doubt that the defendant was involved in the kidnapping conspiracy. Under this third theory, there is no burden upon the prosecution to prove that a defendant was personally involved in the kidnapping offense alleged in Count I.



FINAL INSTRUCTION NO. 7 - ELEMENTS OF KIDNAPPING

In order to find a defendant guilty of kidnapping on the theory that the defendant personally committed the offense, the prosecution must prove each of the following three essential elements beyond a reasonable doubt as to that defendant:

One, on or about June 6, 1997, the defendant knowingly and willfully seized, confined, kidnapped, abducted, or carried away Gregory Sky Erickson against Erickson's will from Emmet County, Iowa, and from and through other counties in Iowa.

To "kidnap" a person means unlawfully to hold, keep, detain, and confine the person against that person's will. The victim's lack of consent is therefore a fundamental element of kidnapping. Although you may find that the victim initially agreed to accompany the alleged kidnappers, this element is proved if you find that there is a point at which the victim no longer consented to accompany them. There can be no kidnapping before that point.

Two, the defendant knowingly and willfully held Gregory Sky Erickson against his will for ransom or reward or otherwise.

The person kidnapped does not have to be held for ransom or reward or other financial gain. This element is proved if you find that the person kidnapped was taken for some reason that the defendant considered of sufficient benefit to him or her, or for some purpose of his or her own.

Three, while Gregory Sky Erickson was held against his will, he was willfully transported from Iowa to Minnesota.

The United States does not have to prove as an essential element of this offense that the defendant knew that he or she was transporting Erickson across state lines. This element is proved if you find that Erickson was willfully transported and, in doing so, crossed from one state to another.

If the prosecution has failed to prove each of these elements beyond a reasonable doubt against a particular defendant, you must find that defendant not guilty of personally committing the crime of kidnapping.



FINAL INSTRUCTION NO. 8 - AIDING AND ABETTING KIDNAPPING

A person may also be found guilty of the crime of kidnapping even if he or she did not personally do every act constituting the offense charged, if he or she aided and abetted the commission of the crime of kidnapping. In order for you to find a defendant guilty of kidnapping by reason of aiding and abetting, the United States must prove beyond a reasonable doubt the following three elements:

One, the aider and abettor knew that the crime of kidnapping was being committed or was going to be committed;

Two, the aider and abettor knowingly acted in some way for the purpose of causing, encouraging, or aiding the commission of the crime of kidnapping; and

Three, the aider and abettor acted knowingly and willfully for the purpose of kidnapping, holding, and transporting Gregory Sky Erickson.

For you to find a defendant guilty of the crime of kidnapping by reason of aiding and abetting, therefore, the prosecution must prove beyond a reasonable doubt that all of the essential elements of kidnapping were committed by some person or persons and that the defendant aided and abetted the commission of that crime. It is not necessary that the other person or persons who committed essential elements of kidnapping be convicted or even identified.

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 become an aider and abettor. A person who has no knowledge that a crime is being committed or about to be committed, but who happens to act in a way that advances some offense, does not thereby become an aider and abettor.



FINAL INSTRUCTION NO. 9 - COUNT II: CONSPIRACY

TO COMMIT KIDNAPPING

I defined the elements of kidnapping in Final Instruction No. 7. You may use the explanation of those elements in considering whether a defendant conspired to commit kidnapping, keeping in mind that Count II charges a conspiracy to commit kidnapping, not that kidnapping was committed by each defendant.

In order to find a defendant guilty of the offense charged in Count II, conspiracy to commit kidnapping, the prosecution must prove each of the following four essential elements beyond a reasonable doubt as to that defendant:

One, on or about June 5, 1997, and continuing thereafter until on or about June 17, 1997, two or more persons reached an agreement or came to an understanding to kidnap Gregory Sky Erickson, as kidnapping is defined in Final Instruction No. 7;

Two, a 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, but in no event later than the time Gregory Sky Erickson was killed;

Three, at the time a defendant joined in the agreement or understanding, he or she knew the purpose of the agreement or understanding; and

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

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

The following is an explanation of the elements of a conspiracy charge:

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. You do not have to find that all of the persons charged were members of the conspiracy.

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 among themselves the details or purpose of the scheme. Nor is it necessary for the prosecution to prove that a defendant benefitted from the unlawful plan.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy, but who happens to act in a way which advances some purpose of one, does not thereby become a member.

However, a person may join in an agreement or understanding without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further, it is not necessary that a person agree to play any particular part in carrying out the agreement or understanding. A person may become a member of a conspiracy even if that person agrees to play only a minor part in the conspiracy, as long as that person has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it. However, a defendant must know of the existence of the conspiracy. Without such knowledge, a defendant cannot be guilty even if his acts furthered the conspiracy.

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

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

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



FINAL INSTRUCTION NO. 10 - SINGLE OR MULTIPLE CONSPIRACIES

If the prosecution has failed to prove beyond a reasonable doubt the existence of the conspiracy that is charged, then you must find the defendants not guilty of Count II, even though some other conspiracy did exist or might have existed. Likewise, if the prosecution has failed to prove beyond a reasonable doubt that a defendant was a member of the conspiracy charged, then you must find that defendant not guilty of the conspiracy charge, even though he or she may have been a member of some other conspiracy. However, proof that a defendant was a member of some other conspiracy would not prevent you from returning a guilty verdict, if the government also proved that he or she was a member of the conspiracy charged in the indictment.

A single conspiracy may exist even if all of the members did not know each other, or never met together, or did not know what roles all of the other members played. Furthermore, a single conspiracy may 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 period of time, does not necessarily mean that there was more than one conspiracy. These are factors you may consider in determining whether more than one conspiracy existed.



FINAL INSTRUCTION NO. 11 - WITHDRAWAL

If a person enters into an agreement, but then withdraws from that agreement before anyone has committed an act in furtherance of the agreement, then the crime of conspiracy was not complete at that time and the person who withdrew must be found not guilty of the conspiracy. In order for you to find that a person withdrew from a conspiracy, you must find that person took a definite, positive step to disavow or defeat the purpose of the conspiracy. Merely stopping activities or a period of inactivity is not enough. That person must have taken such action before any member of the scheme had committed any act in furtherance of the conspiracy.

A defendant has the burden of proving that he or she withdrew from the agreement by the greater weight of the evidence. To prove something by the greater weight of the evidence is to prove that it is more likely true than not true. It is determined by considering all of the evidence and deciding which evidence is more convincing. If the evidence appears equally balanced, or if you cannot say upon which side it weighs more heavily, you must resolve that question against the defendant asserting his or her withdrawal. The greater weight of the evidence is not necessarily determined by the greater number of witnesses or exhibits a party has presented.



FINAL INSTRUCTION NO. 12 - ACTS AND STATEMENTS

OF CO-CONSPIRATORS

If you find beyond a reasonable doubt that a conspiracy existed and that a defendant was one of its members, then you may consider acts knowingly done and statements knowingly made by that defendant's co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to that defendant even though they were done or made in the absence of and without the knowledge of that defendant. This includes acts done or statements made before that defendant joined the conspiracy, for a person who knowingly, voluntarily, and intentionally joins an existing conspiracy is responsible for all of the conduct of the co-conspirators from the beginning of the conspiracy. However, acts and statements that were made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other person, including any defendant.



FINAL INSTRUCTION NO. 13 - CO-CONSPIRATOR

LIABILITY FOR KIDNAPPING

If you find that a particular defendant is guilty of conspiracy to commit kidnapping as charged in Count II, or is a co-conspirator in the conspiracy charged in Count II, you may also find that defendant guilty of the substantive offense of kidnapping as charged in Count I, provided that you find that the essential elements of that count as defined in Final Instruction No. 7 have been established beyond a reasonable doubt as to some person or persons and provided that you also find the following beyond a reasonable doubt:

First, that the offense of kidnapping was committed pursuant to the conspiracy, and

Second, that a particular defendant was a member of the conspiracy at the time the kidnapping offense was committed, and

Third, that a defendant could have reasonably foreseen, at the time a defendant joined the conspiracy or while the conspiracy lasted, that the offense of kidnapping was a necessary or natural consequence of the conspiracy.

Under the conditions just defined, a defendant may be found guilty of kidnapping as charged in Count I even though he or she did not personally participate in the acts constituting the offense as defined in Final Instruction No. 7. The reason for this is that a co-conspirator committing a kidnapping offense pursuant to a conspiracy is held to be the agent of the other conspirators and all co-conspirators are accountable for one another's actions. Therefore, a defendant who is a party to a conspiracy to commit kidnapping may be held responsible for the substantive kidnapping offense committed by others in furtherance of the conspiracy even though a defendant did not participate in, agree to, or know of the actual kidnapping.



FINAL INSTRUCTION NO. 14 - COUNT III: USING OR CARRYING

A FIREARM

The charge in Count III, using or carrying a firearm, is submitted to you by the prosecution on three theories. First, the charge is submitted to you on the theory that each defendant personally committed the offense of using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime. The elements that must be proved to establish guilt under this theory are explained to you in Final Instruction No. 15.

The prosecution's second theory is that each defendant aided and abetted the commission of the offense of using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime. Aiding and abetting this offense is explained to you in Final Instruction No. 16.

The prosecution's third theory is that the firearm offense in Count III was committed by a co-conspirator of the defendants during the course and in furtherance of a conspiracy to kidnap Gregory Sky Erickson or a conspiracy to distribute or possess with intent to distribute controlled substances. This theory is explained to you in Final Instruction No. 17. You must remember that you can only consider this third theory if you first find beyond a reasonable doubt that a defendant was involved in a conspiracy to kidnap Gregory Sky Erickson or a conspiracy to distribute or possess with intent to distribute controlled substances. Under this third theory, there is no burden upon the prosecution to prove that a defendant was personally involved in the firearm offense alleged in Count III.



FINAL INSTRUCTION NO. 15 - ELEMENTS OF USING OR

CARRYING A FIREARM

In order to find a defendant guilty of the firearm offense on the theory that the defendant personally committed that offense, the prosecution must prove each of the following two essential elements beyond a reasonable doubt as to that defendant:

One, a defendant committed the crime of kidnapping, conspiracy to commit kidnapping, or conspiracy to distribute or possess with intent to distribute controlled substances.

In order to determine whether the crime of kidnapping or conspiracy to commit kidnapping has been established, you should refer to Final Instructions No 6. through No. 13. In order to determine whether the crime of conspiracy to distribute or possess with intent to distribute controlled substances has been established, you are advised that this offense has the following elements, which must be established beyond a reasonable doubt:

A) two or more persons reached an agreement or came to an understanding to distribute controlled substances or to possess controlled substances with intent to distribute them;

B) a 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

C) at the time a defendant joined in the agreement or understanding, he or she knew the purpose of the agreement or understanding.

In order to establish this element, the prosecution does not have to prove that a firearm was used or carried in connection with all three crimes alleged. Rather, it is sufficient if the prosecution proves use or carrying in connection with any one or more of the alleged offenses. However, you must unanimously agree upon which of the offenses was proved.

Two, during and in relation to the commission of one of those crimes, a defendant knowingly used or carried a firearm.

In order to establish this element, the prosecution does not have to prove that the firearm was both used and carried. Rather, it is sufficient if the prosecution proves either use or carrying.

The term "used a firearm" means that the firearm was actively employed in the course of the commission of a crime of violence or a drug-trafficking crime. You may find that a firearm was "used" during the commission of one of these offenses if you find that it was brandished, displayed, used to strike someone, used to threaten someone, aimed at someone's body, fired, attempted to be fired, or a defendant made references to a firearm that was in his or her possession.

The term "carried a firearm" has its ordinary meaning, including, for example, that a defendant had the firearm on or about his or her person, or transported it in the passenger compartment of a car.

The firearm was used or carried "in relation to" an offense if it had some purpose or effect with respect to a crime of violence or a drug-trafficking crime; in other words, it was used or carried in a way that effectuated the crime.

If the prosecution has failed to prove both of these elements beyond a reasonable doubt against a particular defendant, you must find that defendant not guilty of personally committing the firearm offense.



FINAL INSTRUCTION NO. 16 - AIDING AND ABETTING USING OR CARRYING A FIREARM

A person may also be found guilty of the crime of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime, even if he or she did not personally do every act constituting the offense charged, if he or she aided and abetted the commission of that offense. In order for you to find a defendant guilty of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime by reason of aiding and abetting, the United States must prove beyond a reasonable doubt the following two elements:

One, the aider and abettor knew that the crime of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime was being committed or was going to be committed; and

Two, the aider and abettor knowingly acted in some way for the purpose of causing, encouraging, or aiding the commission of the crime of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime.

For you to find a defendant guilty of the crime of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime by reason of aiding and abetting, therefore, the prosecution must prove beyond a reasonable doubt that all of the essential elements of the offense were committed by some person or persons and that the defendant aided and abetted the commission of that crime. It is not necessary that the other person or persons who committed essential elements of the firearm offense be convicted or even identified.

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 become an aider and abettor. A person who has no knowledge that a crime is being committed or about to be committed, but who happens to act in a way that advances some offense, does not thereby become an aider and abettor.



FINAL INSTRUCTION NO. 17 - CO-CONSPIRATOR LIABILITY FOR THE FIREARM OFFENSE

If you find that a particular defendant was a co-conspirator in the conspiracy to kidnap Gregory Sky Erickson or the conspiracy to distribute or possess with intent to distribute a controlled substance, you may also find that defendant guilty of the substantive offense of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime, provided that you find that the essential elements of that count as defined in Final Instruction No. 15 have been established beyond a reasonable doubt as to some person or persons, and provided that you also find the following beyond a reasonable doubt:

First, that the offense of using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime was committed pursuant to a conspiracy to kidnap Gregory Sky Erickson or pursuant to a conspiracy to distribute or possess with intent to distribute a controlled substance, and

Second, that a particular defendant was a member of the conspiracy to kidnap Gregory Sky Erickson or the conspiracy to distribute or possess with intent to distribute a controlled substance at the time the firearm offense was committed, and

Third, that a defendant could have reasonably foreseen, at the time the defendant joined the conspiracy or while the conspiracy lasted, that the offense of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime was a necessary or natural consequence of the conspiracy to kidnap Gregory Sky Erickson or the conspiracy to distribute or possess with intent to distribute a controlled substance.

Under the conditions just defined, a defendant may be found guilty of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime as charged in Count III, even though he or she did not personally participate in the acts constituting the offense as defined in Final Instruction No. 15. The reason for this is that a co-conspirator committing a firearm offense pursuant to a conspiracy is held to be the agent of the other conspirators and all co-conspirators are accountable for one another's actions. Therefore, a defendant who is a party to a conspiracy to kidnap Gregory Sky Erickson or a conspiracy to distribute or possess with intent to distribute a controlled substance may be held responsible for the substantive firearm offense committed by others in furtherance of the conspiracy even though that defendant did not participate in, agree to, or know of the actual use or carrying of the firearm.



FINAL INSTRUCTION NO. 18 - ORTIZ'S AND KOZAK'S DEFENSES

Consider these defenses only with regard to defendants Ortiz and Kozak. However, you must consider these defenses as to each of these two defendants individually. Also, in determining whether the prosecution has met its burden of proof beyond a reasonable doubt, you must consider the instructions as a whole, and not merely this instruction.

Defendants Ortiz and Kozak contend that they have five defenses to the kidnapping offense charged in Count I:

First, they contend that the prosecution has failed to prove beyond a reasonable doubt the first element of that offense as stated in Final Instruction No. 7. Specifically, they contend that the prosecution has failed to prove beyond a reasonable doubt that they knowingly and willfully seized, confined, kidnapped, abducted, or carried away Gregory Sky Erickson against Erickson's will from Iowa to Minnesota. As I explained in Final Instruction No. 7, if the prosecution has failed to prove this or any other element of the offense of kidnapping beyond a reasonable doubt against defendant Ortiz or defendant Kozak, you must find that defendant not guilty of personally committing the crime of kidnapping.

Second, you have heard evidence that Gregory Sky Erickson was working as a confidential informant for the Spencer Police Department. Defendants Ortiz and Kozak contend that Gregory Sky Erickson was working as a confidential informant and that in this role Erickson was anxious to go with Luis Lua to meet Ricardo Castillo. One of the theories of Ortiz's and Kozak's defense to the charge of kidnapping is that Erickson consented and/or went willingly from Spencer to Estherville. If the prosecution has failed to prove beyond a reasonable doubt that Gregory Sky Erickson did not consent to go from Spencer to Estherville, then defendants Ortiz and Kozak cannot be found guilty of personally committing the offense of kidnapping, because they were not present after Erickson left Spencer at the point, if any, at which Erickson no longer consented to accompany the alleged kidnappers.

Third, if you find beyond a reasonable doubt that Gregory Sky Erickson was kidnapped from Spencer, Iowa, to Estherville, Iowa, defendants Ortiz and Kozak contend that they did not know that Erickson was being kidnapped and therefore did not knowingly and willfully kidnap Gregory Sky Erickson or aid and abet the kidnapping of Gregory Sky Erickson. If the prosecution has failed to prove beyond a reasonable doubt that defendants Ortiz and Kozak knew that Erickson was being kidnapped and intentionally aided and abetted that kidnapping, according to the elements set forth in Final Instruction No. 8, then you must find these defendants not guilty of the kidnapping offense charged in Count I on the theories that they personally committed the offense or aided and abetted its commission.

Fourth, in Final Instruction No. 13, you are instructed that you may find a particular defendant guilty of kidnapping as a co-conspirator. Ortiz and Kozak contend that the government has failed to prove beyond a reasonable doubt that they were members of a conspiracy to kidnap Gregory Sky Erickson, that they were members of the conspiracy at the time the kidnapping offense was allegedly committed, and that the kidnapping was reasonably foreseeable as a necessary or natural consequence of the conspiracy, as required for co-conspirator liability for kidnapping under Final Instruction No. 13.

Fifth, if you find that the prosecution has failed to prove that Erickson did not consent to go from Spencer to Estherville, you cannot find defendants Ortiz and Kozak guilty of kidnapping as co-conspirators, unless you find that Ortiz and Kozak had agreed with another person that Erickson would later be kidnapped against his will and the other elements of co-conspirator liability for kidnapping stated in Final Instruction No. 13 are also proved

Defendants Ortiz and Kozak contends that they have two defenses to the offense of conspiracy to commit kidnapping charged in Count II:

First, defendants Ortiz and Kozak contend that no conspiracy existed, and that if the conspiracy alleged by the prosecution existed, the prosecution has failed to prove beyond a reasonable doubt that they had knowledge of a conspiracy to kidnap Gregory Sky Erickson and that they knew the purpose of the alleged agreement or understanding. Defendants Ortiz and Kozak cannot be found guilty of conspiracy to kidnap Gregory Sky Erickson if the prosecution has failed to prove beyond a reasonable doubt that they voluntarily and intentionally joined a conspiracy to kidnap Gregory Sky Erickson and that they knew the purpose of the conspiracy, as is required by the elements of conspiracy to commit kidnapping set forth in Final Instruction No. 9.

Second, you cannot find defendants Ortiz and Kozak guilty of conspiracy to kidnap Erickson if you find that the prosecution has failed to prove beyond a reasonable doubt that Erickson did not consent to go from Spencer to Estherville, unless you find beyond a reasonable doubt that Ortiz and Kozak had agreed with another person that Erickson would later be kidnapped against his will and the other elements of conspiracy to kidnap stated in Final Instruction No. 9 are also proved.

Defendants Ortiz and Kozak contend that they have one defense to the firearm offense charged in Count III:

If you find that the prosecution has failed to prove beyond a reasonable doubt that Erickson did not consent to go from Spencer to Estherville, you cannot find defendants Ortiz and Kozak guilty of the firearm offense on the ground that the firearm was used or carried during and in relation to a crime of violence or a drug-trafficking crime unless you find that the firearm was used or carried in furtherance of a conspiracy, of which a particular defendant was a part, to kidnap Erickson later against his will, or you find that the firearm was used or carried in furtherance of a conspiracy, of which a particular defendant was a part, to distribute or to possess with intent to distribute controlled substances.

The following defense to Count III applies only to defendant Kozak:

Defendant Kozak contends that she did not know that any guns were present, that she did nothing to knowingly or intentionally use or carry a gun, nor did she intentionally aid and abet the use of a gun. You cannot find defendant Kozak guilty of personally committing the offense of using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime, unless the prosecution has proved beyond a reasonable doubt each element of that crime as set forth in Final Instruction No. 15, nor can you find her guilty of aiding and abetting the firearm offense, unless the prosecution has proved beyond a reasonable doubt each element set forth in Final Instruction No. 16.



FINAL INSTRUCTION NO. 19 - ASTELLO'S DEFENSES

Consider these defenses only with regard to defendant Astello. In determining whether the prosecution has met its burden of proof beyond a reasonable doubt, you must consider the instructions as a whole, and not merely this instruction.

Defendant Astello contends that he has five defenses:

First, if defendant Astello committed or participated in any of the crimes charged in Counts I, II, or III, only because he reasonably feared that immediate, serious bodily harm would be inflicted upon him if he did not commit or participate in that crime, and if Astello had no reasonable opportunity to avoid that harm, then he was coerced. Such coercion will excuse a defendant's commission of a criminal act. Therefore, the prosecution must prove beyond a reasonable doubt that Astello was not coerced in order to find him guilty of the crimes charged in Counts I, II, and III.

Second, Astello contends that the prosecution has failed to prove beyond a reasonable doubt the first element of the offense of kidnapping as stated in Final Instruction No. 7. Specifically, he contends that the prosecution has failed to prove beyond a reasonable doubt that he knowingly and willfully seized, confined, kidnapped, abducted, or carried away Gregory Sky Erickson against Erickson's will from Iowa to Minnesota. As I explained in Final Instruction No. 7, if the prosecution has failed to prove this or any other element of the offense of kidnapping beyond a reasonable doubt against defendant Astello, you must find him not guilty of personally committing the crime of kidnapping.

Third, you have heard evidence that Gregory Sky Erickson was working as a confidential informant for the Spencer Police Department. Defendant Astello contends that Gregory Sky Erickson was working as a confidential informant and that in this role Erickson was anxious to go with Luis Lua to meet Ricardo Castillo. One of the theories of Astello's defense to the charge of kidnapping is that Erickson consented and/or went willingly from Spencer to Estherville and continued to consent until it became apparent that Lua intended to kill Erickson. At that time, Astello contends that he stopped being a willful participant and attempted to prevent the murder from taking place. You cannot find Astello guilty of the charge in Count I of the indictment on the ground that Astello personally committed kidnapping, unless you find beyond a reasonable doubt that after the point at which Erickson did not consent to accompany the alleged kidnappers, Astello willfully participated in the kidnapping, not as a result of coercion.

Fourth, you cannot find Astello guilty of the charge in Count I of the indictment on the ground that he aided and abetted a kidnapping, unless you find beyond a reasonable doubt that after the point at which Erickson did not consent to accompany the alleged kidnappers, Astello willfully aided and abetted the kidnapping, not as a result of coercion.

Fifth, you cannot find Astello guilty of the charge in Count I of the indictment on the ground that he was a co-conspirator in a conspiracy to kidnap, unless you find beyond a reasonable doubt that after the point at which Erickson did not consent to accompany the alleged kidnappers, Astello willfully participated in the conspiracy to commit kidnapping, not as a result of coercion.



FINAL INSTRUCTION NO. 20 - DEFENSE OF DRUG USE

One of the issues in this case is whether one or more of the defendants were taking drugs at the time the acts charged in the indictment were committed. Being under the influence of a drug provides a legal excuse for the commission of a crime only if the effect of the drug makes it impossible for a defendant to have acted knowingly, intentionally, or willfully as required by the elements of an offense. You may consider evidence that a defendant acted while under the influence of a drug together with all of the other evidence in determining whether or not a defendant in fact had the knowledge, intent, or willfulness required by the particular crime.



FINAL INSTRUCTION NO. 21 - IMPEACHMENT AND TESTIMONY OF CERTAIN WITNESSES

In Preliminary Instruction No. 8, I instructed you generally on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached" and how you are to consider the testimony of certain witnesses.

A witness may be discredited or impeached by contradictory evidence; by a showing that the witness testified falsely concerning a material matter; or by evidence that at some other time the witness has said or done something, or has failed to say or do something, 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 the contents of those statements are true. Instead, you may consider those earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness, and therefore whether they affect the credibility of that witness.

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

Similarly, you have heard testimony that defendant Ramiro Astello made certain statements in which the prosecution claims he admitted certain facts charged in the indictment. You must decide whether Ramiro Astello made the statement and, if so, how much weight you should give to it. In making these two decisions, you should consider all of the evidence, including the circumstances under which the statement may have been made.

If you find that defendant Ramiro Astello attempted to influence witnesses in connection with a crime charged in this case, you may consider this in light of all of the other evidence, and then you may consider whether this evidence shows a consciousness of guilt and determine the significance to be attached to any such conduct. You should understand, however, that such evidence does not relate to the other defendants in any way at all and must not be used against them for any purpose whatsoever.

You have heard evidence that some witnesses were once convicted of a crime or crimes. A conviction of a crime is a factor you may consider in deciding whether to believe a witness and how much weight to give his or her testimony.

You have heard evidence that some witnesses have pleaded guilty to a crime or crimes that arose out of the same events for which the defendants are now on trial. You must not consider those guilty pleas as any evidence of guilt against Mr. Ortiz, Ms. Kozak, or Mr. Astello. You may consider those witnesses' guilty pleas only for the purpose of determining how much, if at all, to rely upon those witnesses' testimony.

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

1. You have heard evidence that Benjamin L. Alden, Thomas Mann, and Luis Lua have made plea agreements with the prosecution. The testimony of these witnesses was received in evidence and you may consider it. You may give that testimony such weight as you think it deserves. Whether or not the testimony of a witness who has made a plea agreement may have been influenced by the agreement is for you to determine.

2. You have also heard evidence that Benjamin L. Alden hopes to receive a reduction in sentence in return for his cooperation with the prosecution in this case. Before Mr. Alden could receive a reduction in sentence, the prosecution would have to request a reduction and the court would have to grant it. You may give the testimony of this witness such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by that witness's hope of receiving a reduced sentence is for you to decide.

3. You have also heard testimony that several witnesses were using drugs at the time of the events about which they testified. Their testimony was received in evidence and you may consider it. It is for you to determine what weight to give such testimony in light of all of the other evidence.

You have also heard testimony about the character and reputation of Travis Sheridan for truthfulness. You may consider this evidence only in deciding whether or not to believe the testimony of Travis Sheridan and how much weight to give it.

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.

You have also heard 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.



FINAL INSTRUCTION NO. 22 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF

Aurelio Ortiz, Jr., Sarah Ann Kozak, and Ramiro Astello are each presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion that might arise from the arrest or charge of Aurelio Ortiz, Jr., Sarah Ann Kozak, and Ramiro Astello or the fact that they are here in court. The presumption of innocence remains with Aurelio Ortiz, Jr., Sarah Ann Kozak, and Ramiro Astello throughout the trial. That presumption alone is sufficient to find them not guilty. The presumption of innocence may be overcome as to any defendant only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against that defendant.

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

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



FINAL INSTRUCTION NO. 23 - REASONABLE DOUBT

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



FINAL INSTRUCTION NO. 24 - DUTY TO DELIBERATE

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

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

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

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

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

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



FINAL INSTRUCTION NO. 25 - DUTY DURING DELIBERATIONS

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

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

Second, if a defendant is guilty, the sentence to be imposed is my responsibility. You may not consider punishment of Mr. Ortiz, Ms. Kozak, or Mr. Astello in any way in deciding whether the prosecution has proved its case beyond a reasonable doubt.

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

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

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

DATED this 23rd day of July, 1998.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,
Plaintiff, No. CR 97-3008-MWB
vs.

VERDICT FORM
AURELIO J. ORTIZ, JR., SARAH ANN KOZAK, and RAMIRO ASTELLO,
Defendants.

____________________



AURELIO J. ORTIZ, JR.

Count I: Kidnapping

As to the charge of kidnapping, as explained in Final Instructions No. 6, No. 7, No. 8, and No. 13, we, the Jury, unanimously find defendant Aurelio J. Ortiz, Jr.,

Not Guilty ______ Guilty _______



(Answer the following question only if you have found defendant Aurelio J. Ortiz, Jr., guilty on Count I of the indictment.)

We, the Jury, unanimously find defendant Aurelio J. Ortiz, Jr., guilty on this charge on the following theory or theories: (Check all that apply)

Personal acts (please refer to Final Instruction No. 7) ______

Aiding and abetting (please refer to Final Instruction No. 8) ______

Co-conspirator liability (please refer to Final Instruction No. 13) ______





Count II: Conspiracy to Commit Kidnapping

As to the charge of conspiracy to commit kidnapping, as explained in Final Instruction No. 9, No. 10, No. 11, and No. 12, we, the Jury, unanimously find defendant Aurelio J. Ortiz, Jr.,

Not Guilty ______ Guilty _______





Count III: Using or Carrying a Firearm

As to the charge of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime, as explained in Final Instructions No. 14, No. 15, No. 16, and No. 17, we, the Jury, unanimously find defendant Aurelio J. Ortiz, Jr.,

Not Guilty ______ Guilty _______



(Answer the following question only if you have found defendant Aurelio J. Ortiz, Jr., guilty on Count III of the indictment.)

We, the Jury, unanimously find defendant Aurelio J. Ortiz, Jr., guilty on this charge on the following theory or theories: (Check all that apply)

Personal acts (please refer to Final Instruction No. 15) ______

Aiding and abetting (please refer to Final Instruction No. 16) ______

Co-conspirator liability (please refer to Final Instruction No. 17):

for an act in furtherance of a kidnapping conspiracy ______

for an act in furtherance of a drug trafficking conspiracy ______



SARAH ANN KOZAK

Count I: Kidnapping

As to the charge of kidnapping, as explained in Final Instructions No. 6, No. 7, No. 8, and No. 13, we, the Jury, unanimously find defendant Sarah Ann Kozak

Not Guilty ______ Guilty _______



(Answer the following question only if you have found defendant Sarah Ann Kozak guilty on Count I of the indictment.)

We, the Jury, unanimously find defendant Sarah Ann Kozak guilty on this charge on the following theory or theories: (Check all that apply)

Personal acts (please refer to Final Instruction No. 7) ______

Aiding and abetting (please refer to Final Instruction No. 8) ______

Co-conspirator liability (please refer to Final Instruction No. 13) ______





Count II: Conspiracy to Commit Kidnapping

As to the charge of conspiracy to commit kidnapping, as explained in Final Instruction No. 9, No. 10, No. 11, and No. 12, we, the Jury, unanimously find defendant Sarah Ann Kozak

Not Guilty ______ Guilty _______



Count III: Using or Carrying a Firearm

As to the charge of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime, as explained in Final Instructions No. 14, No. 15, No. 16, and No. 17, we, the Jury, unanimously find defendant Sarah Ann Kozak

Not Guilty ______ Guilty _______



(Answer the following question only if you have found defendant Sarah Ann Kozak guilty on Count III of the indictment.)

We, the Jury, unanimously find defendant Sarah Ann Kozak guilty on this charge on the following theory or theories: (Check all that apply)

Personal acts (please refer to Final Instruction No. 15) ______

Aiding and abetting (please refer to Final Instruction No. 16) ______

Co-conspirator liability (please refer to Final Instruction No. 17):

for an act in furtherance of a kidnapping conspiracy ______

for an act in furtherance of a drug trafficking conspiracy ______



RAMIRO ASTELLO

Count I: Kidnapping

As to the charge of kidnapping, as explained in Final Instructions No. 6, No. 7, No. 8, and No. 13, we, the Jury, unanimously find defendant Ramiro Astello

Not Guilty ______ Guilty _______



(Answer the following question only if you have found defendant Ramiro Astello guilty on Count I of the indictment.)

We, the Jury, unanimously find defendant Ramiro Astello guilty on this charge on the following theory or theories: (Check all that apply)

Personal acts (please refer to Final Instruction No. 7) ______

Aiding and abetting (please refer to Final Instruction No. 8) ______

Co-conspirator liability (please refer to Final Instruction No. 13) ______





Count II: Conspiracy to Commit Kidnapping

As to the charge of conspiracy to commit kidnapping, as explained in Final Instruction No. 9, No. 10, No. 11, and No. 12, we, the Jury, unanimously find defendant Ramiro Astello

Not Guilty ______ Guilty _______



Count III: Using or Carrying a Firearm

As to the charge of knowingly using or carrying a firearm during and in relation to a crime of violence or a drug-trafficking crime, as explained in Final Instructions No. 14, No. 15, No. 16, and No. 17, we, the Jury, unanimously find defendant Ramiro Astello

Not Guilty ______ Guilty _______



(Answer the following question only if you have found defendant Ramiro Astello guilty on Count III of the indictment.)

We, the Jury, unanimously find defendant Ramiro Astello guilty on this charge on the following theory or theories: (Check all that apply)

Personal acts (please refer to Final Instruction No. 15) ______

Aiding and abetting (please refer to Final Instruction No. 16) ______

Co-conspirator liability (please refer to Final Instruction No. 17):

for an act in furtherance of a kidnapping conspiracy ______

for an act in furtherance of a drug trafficking conspiracy ______





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