IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 00-3048-MWB

vs.



PRELIMINARY AND

FINAL INSTRUCTIONS

TO THE JURY

JEDEDIAH W. REGENWETHER,
Defendant.




TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - STATEMENT OF THE CASE 2

NO. 3 - ELEMENTS OF THE OFFENSES 4

NO. 4 - OUTLINE OF TRIAL 8

NO. 5 - PRESUMPTION OF INNOCENCE 9

NO. 6 - REASONABLE DOUBT 10

NO. 7 - DEFINITION OF EVIDENCE 11

NO. 8 - RECORDED CONVERSATIONS 13

NO. 9 - EVIDENCE OF PRIOR BANK ROBBERIES 14

NO. 10 - CREDIBILITY OF WITNESSES 15

NO. 11 - BENCH CONFERENCES AND RECESSES 17

NO. 12 - OBJECTIONS 18

NO. 13 - NOTE-TAKING 19

NO. 14 - CONDUCT OF THE JURY 20

FINAL INSTRUCTIONS 22

NO. 1 - INTRODUCTION 22

NO. 2 - COUNTS 1 & 3: INDUCING BANK ROBBERY OFFENSES 23

NO. 3 - COUNTS 2 & 4: SOLICITATION OF A VIOLENT FELONY 26

NO. 4 - COUNT 5: CONSPIRACY TO COMMIT BANK ROBBERY 28

NO. 5 - ACTS AND STATEMENTS OF CO-CONSPIRATORS 33

NO. 6 - IMPEACHMENT 34

NO. 7 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF 36

NO. 8 - REASONABLE DOUBT 37

NO. 9 - DUTY TO DELIBERATE 38

NO. 10 - DUTY DURING DELIBERATIONS 40



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



In this case, the United States charges defendant Jedediah W. Regenwether with the following five offenses:

These charges are set forth in what is called an indictment. An indictment is simply an accusation. It is not evidence of anything. The defendant has pleaded not guilty to the crimes charged against him; therefore, he is presumed to be innocent unless and until the prosecution proves his guilt beyond a reasonable doubt on an offense charged against him. The indictment charges that the offenses were committed "on or about" a certain date or "between about" two dates. The prosecution does not have to prove with certainty the exact date of an offense charged. It is sufficient if the evidence establishes that an offense occurred within a reasonable time of the date alleged in the indictment.

Your duty is to decide from the evidence whether the defendant is not guilty or guilty of the crimes charged against him. You will find the facts from the evidence. You are entitled to consider that evidence in the light of your own observations and experiences in the affairs of life. You may use reason and common sense to draw deductions or conclusions from facts that have been established by the evidence. You will then apply those facts to the law, which I give you in these 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 the charges 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, what I think your verdict should be, or that I have any opinions on the merits of the case favoring one side or the other.

Please remember that only defendant Jedediah W. Regenwether, not anyone else, is on trial here, and that this defendant is on trial only for the crimes charged against him, not for anything else.

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF THE OFFENSES



To help you follow the evidence, here is a brief summary of the elements of the offenses charged in the indictment.



Counts 1 & 3: Inducing bank robbery offenses

Count 1 of the indictment charges that, on or about September 30, 1999, Mr. Regenwether aided, abetted, counseled, and induced Benjamin Michael Kirk to attempt to rob the Security State Bank in Radcliffe, Iowa. Count 3 of the indictment charges that, on or about November 10, 1999, Mr. Regenwether aided, abetted, counseled, and induced Benjamin Michael Kirk to rob the First American Bank in Fort Dodge, Iowa, of approximately $621.00. Thus, Mr. Regenwether is not charged with attempting to rob the Security State Bank in Radcliffe, Iowa, nor is he charged with robbing the First American Bank in Fort Dodge, Iowa, of $621.00. Instead, the charges against Mr. Regenwether are that he aided, abetted, counseled, and induced another person to commit the bank robbery offenses identified in Counts 1 and 3.

To convict the defendant of a count of aiding, abetting, counseling, and inducing a bank robbery offense, the prosecution must prove the following three elements beyond a reasonable doubt against the defendant as to that count:

One, the defendant knew that the bank robbery offense identified was being committed or was going to be committed;

Two, the defendant knowingly acted in some way for the purpose of causing, encouraging, aiding, counseling, or inducing another to commit the bank robbery offense identified; and

Three, the defendant intended that the bank be robbed.

If the prosecution has failed to prove beyond a reasonable doubt all three of these elements of inducing the attempted robbery of the Security State Bank in Radcliffe, Iowa, you must find Mr. Regenwether not guilty of Count 1. If the prosecution has failed to prove beyond a reasonable doubt all three of these elements of inducing the robbery of the First American Bank in Fort Dodge, Iowa, you must find Mr. Regenwether not guilty of Count 3.



Counts 2 & 4: Solicitation of a violent felony

Count 2 of the indictment charges that, on or about September 30, 1999, Mr. Regenwether solicited, commanded, induced, and endeavored to persuade Benjamin Michael Kirk to commit a violent felony, specifically, the attempt by Benjamin Michael Kirk to rob the Security State Bank in Radcliffe, Iowa. Count 4 of the indictment charges that, on or about November 10, 1999, Mr. Regenwether solicited, commanded, induced, and endeavored to persuade Benjamin Michael Kirk to commit a violent felony, specifically, the robbery of the First American Bank in Fort Dodge, Iowa.

To convict the defendant of a count of soliciting a violent felony, the prosecution must prove the following three elements beyond a reasonable doubt against the defendant as to that count:

One, the defendant intended that another commit a violent felony;

Two, the circumstances are strongly corroborative of that intent; and

Three, the defendant actually solicited, commanded, induced, or otherwise endeavored to persuade another person to commit the violent felony.

If the prosecution has failed to prove all three of these elements beyond a reasonable doubt as to a particular count, you must find Mr. Regenwether not guilty of that count of soliciting a violent felony. However, the prosecution does not have to prove that the violent felony the defendant solicited another to commit was actually committed.



Count 5: Conspiracy to commit bank robbery

Finally, Count 5 of the indictment charges that, between about March 1998, and continuing thereafter, until about November 10, 1999, Mr. Regenwether knowingly and willfully conspired with other persons, known and unknown, to commit the following offenses: (a) the robbery of the Security State Bank in Radcliffe, Iowa; (b) the robbery of the First American Bank in Fort Dodge, Iowa; and/or (c) the robbery of the Brenton Bank in Ames, Iowa, and that, in furtherance of the conspiracy, the defendant and other conspirators committed numerous acts, called "overt acts."

To convict the defendant of conspiracy to commit bank robbery, the prosecution must prove the following four elements beyond a reasonable doubt as to the defendant:

One, between about March 1998 and November 10, 1999, two or more persons reached an agreement or came to an understanding to rob one or more banks;

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;

Three, at the time the defendant joined in the agreement or understanding, he 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 overt acts for the purpose of carrying out or carrying forward the agreement or understanding.

If the prosecution has failed to prove all four of these elements beyond a reasonable doubt as to Mr. Regenwether, you must find him not guilty of conspiracy to commit bank robbery, as charged in Count 5 of the indictment. However, the prosecution does not have to prove that the conspirators actually succeeded in accomplishing their unlawful plan; in other words, the prosecution does not have to prove that the conspirators actually succeeded in robbing any of the banks identified in the indictment.



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

PRELIMINARY INSTRUCTION NO. 4 - OUTLINE OF TRIAL



The trial will proceed as follows:

After these preliminary instructions, the prosecutor may make an opening statement. Next, the lawyer for 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. 5 - PRESUMPTION OF INNOCENCE



Defendant Jedediah W. Regenwether 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 Mr. Regenwether or the fact that he is here in court. The presumption of innocence remains with the defendant throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to the defendant only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against him.

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

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

PRELIMINARY INSTRUCTION NO. 6 - REASONABLE DOUBT



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



PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE



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. 8 - RECORDED CONVERSATIONS



You may hear a recording of a conversation. The conversation on such a recording was legally recorded, and you may consider the recording just like any other evidence.

A recording may or may not be accompanied by a typed transcript. A transcript, if present, may also undertake to identify the speakers engaged in the conversation. You are permitted to view a transcript for the limited purpose of helping you follow the conversation as you listen to or view the recording and to help you keep track of the speakers. A transcript, however, is not evidence. A recording itself is the primary evidence of its own contents.

You are specifically instructed that whether a transcript, if available, correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you may hear about the preparation of the transcript and upon your own examination of the transcript in relation to what you hear on the recording. If you decide that a transcript is in any respect incorrect or unreliable, you should disregard it to that extent.

Differences in meaning between what you hear in a recording and read in a transcript, if available, may be caused by such things as the inflection in a speaker's voice. You should, therefore, rely on what you hear rather than what you read when there is a difference.

PRELIMINARY INSTRUCTION NO. 9 - EVIDENCE OF PRIOR

BANK ROBBERIES





You will hear evidence that the defendant allegedly committed two bank robberies in Texas, involving the Nationsbank in Duncanville, Texas, on January 24, 1998, and March 7, 1998, and was convicted of a third bank robbery in Iowa, involving the robbery of the Boone County Community Credit Union in Boone, Iowa, on March 13, 1998. You may use this evidence to help you decide whether the similarity between the acts previously committed and the ones charged in this case suggests that the same person committed all of them. You may also use this evidence to help you consider the defendant's intent, knowledge, and plan.

However, you may not convict the defendant simply because you believe he may have committed similar acts in the past. The defendant is on trial here only for the crimes charged in the indictment in this case, not for anything else.

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 his testimony in the same manner in which you judge the testimony of any other witness.

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

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

PRELIMINARY INSTRUCTION NO. 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. 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. 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 21st day of May, 2001.



FINAL INSTRUCTION NO. 1 - INTRODUCTION







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

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

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

FINAL INSTRUCTION NO. 2 - COUNTS 1 & 3: INDUCING

BANK ROBBERY OFFENSES





In Count 1 of the indictment in this case, the United States charges that, on or about September 30, 1999, Mr. Regenwether did aid, abet, counsel, and induce Benjamin Michael Kirk to attempt to take, by force, violence, and intimidation, from the persons and presence of others, money belonging to and in the care, custody, control, management, and possession of the Security State Bank in Radcliffe, Iowa, a financial institution whose deposits were then insured by the Federal Deposit Insurance Corporation (FDIC).

In Count 3 of the indictment, the United States charges that, on or about November 10, 1999, Mr. Regenwether did aid, abet, counsel, and induce Benjamin Michael Kirk to take, by force, violence, and intimidation, from the persons and presence of others, approximately six hundred and twenty-one dollars ($621.00) in United States currency belonging to and in the care, custody, control, management, and possession of the First American Bank in Fort Dodge, Iowa, a financial institution whose deposits were then insured by the FDIC.

Mr. Regenwether is not charged with attempting to rob the Security State Bank in Radcliffe, Iowa, nor is he charged with robbing the First American Bank in Fort Dodge, Iowa, of $621.00. Instead, the charges against Mr. Regenwether are that he aided, abetted, counseled, and induced another person to commit the bank robbery offenses identified in Counts 1 and 3.

To convict the defendant of a count of aiding, abetting, counseling, and inducing a bank robbery offense, the prosecution must prove the following three elements beyond a reasonable doubt against the defendant as to that count:

One, the defendant knew that the bank robbery offense identified was being committed or was going to be committed.

The bank robbery offense identified in Count 1 is the attempted robbery of the Security State Bank in Radcliffe, Iowa. The bank robbery offense identified in Count 3 is the robbery of the First American Bank in Fort Dodge, Iowa, of $621.00.

For you to find a defendant guilty of aiding, abetting, counseling, and inducing a bank robbery offense, the prosecution must prove beyond a reasonable doubt that all of the essential elements of the bank robbery offense identified were committed by some person or persons. However, it is not necessary that the other person or persons be convicted or even identified.

To assist you in determining whether or not the bank robbery offenses identified were committed by some other person or persons, the elements of these offenses are as follows:

A person may be found guilty of attempted bank robbery only if the prosecution proves beyond a reasonable doubt that the person intended to rob the bank and voluntarily and intentionally carried out some act which was a substantial step toward the robbery of the bank. A person's "intent" is determined from the evidence of that person's words, acts, or omissions, along with all of the facts and circumstances in evidence that would aid a jury in determining that person's intent.

A person may be found guilty of bank robbery only if the prosecution proves beyond a reasonable doubt that, one, on or about the date alleged, the person took money from the presence of the people in the bank, while that money was in the care or custody of the bank; two, the person took the money by force, violence, or intimidation; and three, the deposits of the bank were then insured by the FDIC.



Two, the defendant knowingly acted in some way for the purpose of causing, encouraging, aiding, counseling, or inducing another to commit the bank robbery offense identified.



It is sufficient if the prosecution proves that the defendant knowingly caused, or encouraged, or aided, or counseled, or induced another to commit a bank robbery offense. The prosecution does not have to prove that the defendant knowingly did all of these things. To "induce" someone means to move him to do something by persuasion or influence. To "counsel" someone means to advise him to do something or how to do it.

An act is done "knowingly" if the defendant is aware of the act and does not act through ignorance, mistake, or accident. In deciding whether an act is done "knowingly," 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 you in determining the defendant's knowledge.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has voluntarily aided, abetted, counseled, or induced the commission of an offense. 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 criminally liable for aiding, abetting, counseling, or inducing that offense.



Three, the defendant intended that the bank be robbed.

Again, a person's "intent" is determined from the evidence of that person's words, acts, or omissions, along with all of the facts and circumstances in evidence that would aid a jury in determining that person's intent.



If the prosecution has failed to prove beyond a reasonable doubt all three of these elements of inducing the attempted robbery of the Security State Bank in Radcliffe, Iowa, you must find Mr. Regenwether not guilty of Count 1. If the prosecution has failed to prove beyond a reasonable doubt all three of these elements of inducing the robbery of the First American Bank in Fort Dodge, Iowa, you must find Mr. Regenwether not guilty of Count 3.

FINAL INSTRUCTION NO. 3 - COUNTS 2 & 4: SOLICITATION

OF A VIOLENT FELONY





In Count 2 of the indictment, the United States charges that, on or about September 30, 1999, Mr. Regenwether did solicit, command, induce, and endeavor to persuade Benjamin Michael Kirk to engage in conduct constituting a felony that has as an element the use, attempted use, and threatened use of physical force against the person of another in violation of the laws of the United States, specifically, the attempt by Benjamin Michael Kirk to rob the Security State Bank in Radcliffe, Iowa.

In Count 4 of the indictment, the United States charges that, on or about November 10, 1999, Mr. Regenwether did solicit, command, induce, and endeavor to persuade Benjamin Michael Kirk to engage in conduct constituting a felony that has as an element the use, attempted use, and threatened use of physical force against the person of another in violation of the laws of the United States, specifically, the robbery of the First American Bank in Fort Dodge, Iowa.

To convict the defendant of a count of soliciting a violent felony, the prosecution must prove the following three elements beyond a reasonable doubt against the defendant as to that count:

One, the defendant intended that another commit a violent felony.

In deciding what the defendant "intended," 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 you in determining the defendant's intent.

A "violent felony" for purposes of the crimes charged in Counts 2 and 4 is a felony offense that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another. Bank robbery and attempted bank robbery are "violent felonies" for the purposes of Counts 2 and 4.



Two, the circumstances are strongly corroborative of that intent.

The law requires that, to convict someone of soliciting the commission of a violent felony, the circumstances must be "strongly corroborative" of the defendant's intent that another person commit the violent felony. Thus, there must be evidence that the defendant intended the particular violent felony identified and that the defendant intended that another person commit that particular violent felony. One factor that is "strongly corroborative" of intent would be if you found that the defendant offered or promised payment or some other benefit to the person solicited if he would commit the particular violent felony intended by the defendant.



Three, the defendant actually solicited, commanded, induced, or otherwise endeavored to persuade another person to commit the violent felony.

It is sufficient if the prosecution proves that the defendant actually solicited, or commanded, or induced another to commit a violent felony. The prosecution does not have to prove that the defendant actually did all of these things. To "induce" someone means to move him to do something by persuasion or influence. To "solicit" someone means to urge him strongly, or entice him, or lure him into doing something. "Otherwise endeavored to persuade" means that the defendant seriously sought to persuade another to engage in criminal conduct. The prosecution does not have to prove that the violent felony the defendant solicited was actually committed by the other person.



If the prosecution has failed to prove all three of these elements beyond a reasonable doubt as to a particular count, you must find Mr. Regenwether not guilty of that count of soliciting a violent felony.

FINAL INSTRUCTION NO. 4 - COUNT 5: CONSPIRACY

TO COMMIT BANK ROBBERY





In Count 5 of the indictment, the United States charges that, between about March 1998, and continuing thereafter, until about November 10, 1999, Mr. Regenwether did knowingly and willfully combine, conspire, confederate, and agree with other persons, known and unknown, to commit the following offenses:

(a) the robbery of the Security State Bank in Radcliffe, Iowa;

(b) the robbery of the First American Bank in Fort Dodge, Iowa; and/or

(c) the robbery of the Brenton Bank in Ames, Iowa,

and that, in furtherance of the conspiracy and to effect the objects of the conspiracy, numerous overt acts were committed by the defendant or other conspirators.

To convict the defendant of conspiracy to commit bank robbery, the prosecution must prove the following four elements beyond a reasonable doubt as to the defendant:

One, between about March 1998 and November 10, 1999, two or more persons reached an agreement or came to an understanding to rob one or more banks.

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

The "agreement or understanding" need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme. In determining whether the alleged agreement existed, you may consider the actions and statements of all of the alleged participants, whether they are charged as defendants or not. The agreement may be inferred from all the circumstances and the conduct of the alleged participants.

To assist you in determining whether there was an agreement to commit one or more of the bank robberies alleged to be the objectives of the conspiracy, you should consider the elements of bank robbery, which are the following: One, on or about the date alleged, a person took money from the presence of the people in a bank, while that money was in the care or custody of the bank; two, the person took the money by force, violence, or intimidation; and three, the deposits of the bank were then insured by the FDIC.

Keep in mind that, in the indictment, the government charges that the defendant conspired to commit one or more bank robberies, not that any of these bank robberies was actually committed.



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

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

However, you should understand that merely being present at the scene of an event, or merely acting in the same way as others, or merely associating with others does not prove that a person has joined in an agreement or understanding.

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



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

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



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

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 the 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 so, 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 or acts were done.

The prosecution alleges that the following "overt acts" were committed in furtherance of the conspiracy:

(a) On March 31, 1998, the defendant took James Paul Olszewski to the Security State Bank in Radcliffe, Iowa, to show Olszewski the bank, explain his plan to rob the bank, and persuade Olszewski to help him rob the bank.

(b) On April 1, 1998, the defendant met with Olszewski at a park in Boone, Iowa, to discuss the defendant's plan for he and Olszewski to rob the Security State Bank in Radcliffe, Iowa. While at the park, the defendant gave Olszewski additional details of his plan to rob the bank, and explained to Olszewski how to avoid getting caught after robbing the bank.

(c) On September 30, 1999, the defendant and Benjamin Michael Kirk were at the defendant's residence in Ames, Iowa. The defendant told Kirk to take a car owned by the defendant's girlfriend, remove the license plates, drive to the Security State Bank in Radcliffe, Iowa, and rob the bank. The defendant told Kirk to write, "PLEASE QUICKLY HAND OVER ALL 100's 50's, 20's and 10's!! NO DYE PACKS AND NO ONE WILL BE HURT!!" on a piece of paper and hand it to the teller at the bank.

(d) On September 30, 1999, Kirk took a car owned by the defendant's girlfriend, drove to the Security State Bank in Radcliffe, Iowa, and attempted to rob the bank. Kirk handed the bank teller a note which read, "PLEASE QUICKLY HAND OVER ALL 100's 50's, 20's and 10's!! NO DYE PACKS AND NO ONE WILL BE HURT!!" Kirk left the bank without receiving any money.

(e) On September 30, 1999, after the failed attempt to rob the Security State Bank in Radcliffe, Iowa, the defendant and Kirk discussed plans to rob another bank. The defendant told Kirk that the Brenton Bank in Ames, Iowa, would be a good bank to rob, because it had a back door. The defendant told Kirk that he should drive around and look at other banks before he made a decision to rob the Brenton Bank.

(f) On the morning of October 1, 1999, Kirk wrote a note which read, "PLEASE QUICKLY HAND OVER ALL 100's, 50's, 20's and 10's!! NO DYE PACKS AND NO ONE WILL BE HURT!!" Kirk drove around looking at other banks before finally deciding to rob the Brenton Bank.

(g) At about 10:10 a.m., Kirk drove to the Brenton Bank at 424 Main Street in Ames, Iowa, parked across some railroad tracks from the bank, walked into the bank, and handed a bank teller the note. The teller handed Kirk some money and Kirk left the bank. Kirk drove to the defendant's residence and counted the money. Kirk left approximately $400 of the money from the robbery for the defendant at the defendant's residence.

(h) On November 9, 1999, the defendant and Kirk drove to Boone, Iowa, and spent the night at a motel in preparation for robbing the First American Bank in Fort Dodge, Iowa, the following day.

(i) On the morning of November 10, 1999, the defendant wrote a note, which read, "PLEASE QUICKLY HAND OVER ALL 100's 50's 20's + 10's NO DYE PACKS AND NO ONE WILL BE HURT." The defendant and Kirk drove to the First American Bank in Fort Dodge, Iowa, and parked behind the bank.

(j) Kirk walked into the First American Bank and handed the note to a bank teller. The teller handed Kirk some money and Kirk put the money into a bag and stuffed the bag into the front of his pants. Kirk got into the car with the defendant and they drove away from the bank.

(k) A dye pack had discharged while the bag of money was in the front of Kirk's pants. While the defendant and Kirk were still in the car, Kirk pulled the bag out of his pants, put the money into a plastic bag, and threw the bag out of the car window. The defendant and Kirk drove back to the motel in Boone, Iowa, where Kirk discovered he had dye stains on his stomach and clothes.

(l) The defendant and Kirk later traveled to Iowa City, Iowa, in separate vehicles. Once in Iowa City, Kirk threw his clothes away in a trash bin, and the defendant washed the dye off of the money from the robbery.



If the prosecution has failed to prove all four of these elements beyond a reasonable doubt as to Mr. Regenwether, you must find him not guilty of conspiracy to commit bank robbery, as charged in Count 5 of the indictment.

FINAL INSTRUCTION NO. 5 - ACTS AND STATEMENTS OF

CO-CONSPIRATORS





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

FINAL INSTRUCTION NO. 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, with certain exceptions, those earlier statements were not admitted to prove that the contents of those statements were true. Instead, you may consider those earlier statements only to determine whether you think they are consistent or inconsistent with the trial testimony of the witness, and therefore whether they affect the credibility of that witness.

You have heard evidence that witnesses James Paul Olszewski, Benjamin Michael Kirk, Tara Mason, and Vincent Anthony Abney have each been convicted of a crime. You may use that evidence only to help you decide whether or not to believe these witnesses and how much weight to give their testimony.

Similarly, you have heard evidence that Benjamin Michael Kirk pleaded guilty to a charge that arose out of the same events for which Mr. Regenwether is now on trial. You cannot consider such a witness's guilty plea as any evidence of the guilt of the defendant. Rather, you can consider such a witness's guilty plea only for the purpose of determining how much, if at all, to rely upon his or her testimony.

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

1. You have heard evidence that Benjamin Michael Kirk is testifying pursuant to a plea agreement and hopes to receive a reduction in his sentences in return for his cooperation with the prosecution in this case. If the prosecutor handling such a witness's case believes that the witness has provided "substantial assistance," the prosecutor can file a motion to reduce the witness's sentence. The judge has no power to reduce a sentence for such a witness for substantial assistance unless the U.S. attorney files a motion requesting such a reduction. If the motion for reduction of sentence for substantial assistance is filed by the U.S. attorney, then it is up to the judge to decide whether to reduce the sentence of that witness at all, and if so, how much to reduce it. You may give the testimony of Benjamin Michael Kirk such weight as you think it deserves. Whether or not his testimony may have been influenced by his hope of receiving a reduction in sentence is for you to decide.

2. You have also heard testimony from Tara Mason 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 her testimony 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.

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





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

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

Unless the prosecution proves beyond a reasonable doubt that 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.

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 an offense charged against him, then the defendant should have your vote for a not guilty verdict on that offense. If all of you reach the same conclusion, then the verdict of the jury must be not guilty for the defendant on an offense. Of course, the opposite also applies. If, in your individual judgment, the evidence establishes the defendant's guilt beyond a reasonable doubt on an offense charged, then your vote should be for a verdict of guilty against the defendant on that charge, and if all of you reach that conclusion, then the verdict of the jury must be guilty for the defendant on that charge. As I instructed you earlier, the burden is upon the prosecution to prove beyond a reasonable doubt every essential element of a crime charged. Remember also that the question before you can never be whether the government wins or loses the case. The government, as well as society, always wins, regardless of whether your verdict is not guilty or guilty, when justice is done.

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

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

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

FINAL INSTRUCTION NO. 10 - DUTY DURING DELIBERATIONS



There are certain rules that 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 Jedediah W. Regenwether 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 22nd day of May, 2001.



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 00-3048-MWB

vs.



VERDICT FORM

JEDEDIAH W. REGENWETHER,
Defendant.

____________________







We, the Jury, unanimously find defendant Jedediah W. Regenwether guilty or not guilty as follows:

COUNT DESCRIPTION VERDICT
1 Inducing Benjamin Michael Kirk to attempt to rob the Security State Bank in Radcliffe, Iowa, on or about September 30, 1999, as explained in Final Jury Instruction No. 2 ___ Not guilty

___ Guilty

2 Soliciting Benjamin Michael Kirk to commit a violent felony, specifically, the robbery of the Security State Bank in Radcliffe, Iowa, on or about September 30, 1999, as explained in Final Jury Instruction No. 3 ___ Not guilty

___ Guilty

3 Inducing Benjamin Michael Kirk to rob the First American Bank in Fort Dodge, Iowa, of approximately $621.00 on or about November 10, 1999, as explained in Final Jury Instruction No. 2 ___ Not guilty

___ Guilty

4 Soliciting Benjamin Michael Kirk to commit a violent felony, specifically, the robbery of the First American Bank in Fort Dodge, Iowa, on or about November 10, 1999, as explained in Final Jury Instruction No. 3 ___ Not guilty

___ Guilty

5 Conspiracy to commit bank robbery, as explained in Final Jury Instruction No. 4 ___ Not guilty

___ Guilty



If you have found the defendant guilty of Count 5, which offense or offenses do you find were the objectives of the conspiracy? (Please mark all that apply.)
The robbery of the Security State Bank in Radcliffe, Iowa

_____
The robbery of the First American Bank in Fort Dodge, Iowa

_____
The robbery of the Brenton Bank in Ames, Iowa _____
If you have found the defendant guilty of Count 5, which one or more "overt acts" do you find beyond a reasonable doubt were committed for the purpose of carrying out or carrying forward the agreement or understanding, as these "overt acts" are more fully explained in Final Jury Instruction No. 4, beginning on page 30? (Please mark all that apply.)
(a) the visit to the Security State Bank in Radcliffe, Iowa, on March 31, 1998

_____
(b) the meeting between the defendant and Olszewski at the park in Boone, Iowa, on April 1, 1998,

_____
(c) the meeting on September 30, 1999, at which the defendant gave Kirk directions concerning the car and demand note

_____
(d) the attempted robbery by Kirk of the Security State Bank in Radcliffe, Iowa, on April 1, 1998,

_____
(e) the discussions on September 30, 1999, between the defendant and Kirk concerning plans to rob the Brenton Bank in Ames, Iowa



_____
(f) Kirk's preparation of a demand note and his search for another bank to rob on October 1, 1999,

_____
(g) Kirk's robbery of the Brenton Bank on October 1, 1999

_____
(h) the overnight stay on November 9, 1999, by the defendant and Kirk at a motel in Boone, Iowa, in preparation for robbing the First American Bank in Fort Dodge, Iowa, the next day



_____
(i) the defendant's preparation of a demand note and his trip with Kirk to the First American Bank in Fort Dodge, Iowa, on November 10, 1999



_____
(j) Kirk's robbery of the First American Bank in Fort Dodge, Iowa, on November 10, 1999

_____
(k) disposal of the dye-stained money bag and the trip back to Boone, Iowa, on November 10, 1999

_____
(l) the trip by the defendant and Kirk to Iowa City, Iowa, Kirk's disposal of his dye-stained clothes, and the defendant's washing of the dye off of the money



_____






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