IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 99-4038-MWB

vs.



PRELIMINARY

AND FINAL INSTRUCTIONS

TO THE JURY

CINDY WILCKE and THOMAS BRYAN WILCKE,
Defendants.






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 - CREDIBILITY OF WITNESSES 13

NO. 9 - BENCH CONFERENCES AND RECESSES 15

NO. 10 - OBJECTIONS 16

NO. 11 - NOTE-TAKING 17

NO. 12 - CONDUCT OF THE JURY 18

FINAL INSTRUCTIONS 20

NO. 1 - INTRODUCTION 20

NO. 2 - DUTY OF JURORS 21

NO. 3 - NATURE OF AN INDICTMENT 22

NO. 4 - "INTENT"AND "KNOWLEDGE" 23

NO. 5 - "POSSESSION," "DISTRIBUTION," AND "DELIVERY" 24

NO. 6 - COUNT I: CONSPIRACY 26

NO. 7 - COUNT I: OBJECTIVES OF THE CONSPIRACY 29

NO. 8 - COUNT I: ACTS AND STATEMENTS OF CO-CONSPIR-

ATORS 31

NO. 9 - COUNT I: QUANTITY OF METHAMPHETAMINE 32

NO. 10 - COUNT II: POSSESSION OF A FIREARM BY AN UNLAWFUL

USER OF A CONTROLLED SUBSTANCE 34

NO. 11 - IMPEACHMENT AND TREATMENT OF CERTAIN

EVIDENCE 37

NO. 12 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF 39

NO. 13 - REASONABLE DOUBT 40

NO. 14 - DUTY TO DELIBERATE 41

NO. 15 - DUTY DURING DELIBERATIONS 43



VERDICT FORM



PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



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

PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE



This is a criminal case brought by the United States of America against defendants Cindy Wilcke and Thomas Bryan Wilcke. In an indictment, the United States charges each of these defendants with two offenses. In Count I of the indictment, the United States charges that, between about February 1999 through August 1999, the defendants conspired to manufacture and possess with intent to distribute 50 grams or more of actual (pure) methamphetamine. In Count II of the indictment, the United States charges that, on or about August 27, 1999, the defendants knowingly possessed firearms and ammunition while they were unlawful users of a controlled substance.

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

Your duty is to decide from the evidence whether each of the defendants is not guilty or guilty 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, which I will 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.

Please remember that only defendants Cindy Wilcke and Thomas Bryan Wilcke, not anyone else, are on trial here, and that these defendants are on trial only for the crimes charged against them, not for anything else.

Finally, keep in mind that the indictment charges these defendants with two separate offenses. Therefore, you must consider separately each count and each defendant charged with that count, and return a separate verdict for each defendant on each count.

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF THE OFFENSES



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



Count I: Conspiracy

In Count I of the indictment, the Government alleges that, between about February 1999 through August 1999, the defendants conspired to manufacture and possess with intent to distribute 50 grams or more of actual (pure) methamphetamine. The crime of conspiracy, as charged in Count I of the indictment, has three essential elements, which are the following:

One, between about February 1999 through August 1999, two or more persons reached an agreement or came to an understanding to manufacture methamphetamine or to possess methamphetamine with intent to distribute it;

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

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

For you to find a particular defendant guilty of the crime of conspiracy, as charged in the indictment, the Government must prove all of the essential elements of this offense beyond a reasonable doubt as to that defendant; otherwise, you must find that defendant not guilty of the crime of conspiracy as charged in the indictment. In addition, if you find a defendant guilty of this conspiracy offense, you must also determine beyond a reasonable doubt the quantity of the methamphetamine involved in the conspiracy for which that defendant can be held responsible.

The indictment charges a conspiracy to commit two separate crimes or offenses, manufacturing methamphetamine and possession of methamphetamine with intent to distribute it. It is not necessary for the government to prove a conspiracy to commit both of these offenses. It would be sufficient if the government proves, beyond a reasonable doubt, a conspiracy to commit one of these offenses; however, in order to return a verdict of guilty, you must unanimously agree upon which one or more of the offenses was or were the objective of the conspiracy. If you cannot agree in that manner, you must find the defendants not guilty.

To assist you in determining whether there was an agreement to manufacture methamphetamine or to possess methamphetamine with intent to distribute it, you should consider the elements of these offenses.

To find a person guilty of the crime of manufacturing methamphetamine, the Government would have to prove each of the following elements beyond a reasonable doubt against that person:

One, the person manufactured methamphetamine; and

Two, the person knew that he or she was, or intended to be, manufacturing methamphetamine.

To find a person guilty of the crime of possession of methamphetamine with intent to distribute it, the Government would have to prove each of the following elements beyond a reasonable doubt against that person:

One, the person was in possession of methamphetamine;

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

Three, the person intended to distribute some or all of the methamphetamine to another person.

Keep in mind that the indictment charges the defendants with conspiracy to manufacture methamphetamine or to possess methamphetamine with intent to distribute it, not that either of these crimes was actually committed.



Count II: Possession of a Firearm by an Unlawful User of a Controlled Substance



In Count II of the indictment, the Government alleges that, on or about August 27, 1999, the defendants knowingly possessed firearms and ammunition while they were unlawful users of a controlled substance. The crime of possession of a firearm by an unlawful user of a controlled substance, as charged in Count II of the indictment, has three essential elements, which are the following:

One, on or about August 27, 1999, the defendant knowingly possessed either a firearm or ammunition, or both;

Two, during the time the defendant possessed the firearm, ammunition, or both, the defendant was an unlawful user of a controlled substance;

Three, at some time prior to the defendant's possession of the firearm, ammunition, or both, it was or they were transported across a state line.

In the indictment, the Government alleges that each defendant possessed the following firearms and ammunition:

a. One Stevens J. Arms Company .410 gauge pump shotgun, Westpoint model 167, with no serial number.

b. One Marlin Firearms .22 caliber bolt action rifle, Model 81-DL-22-S-L-LR, with no serial number.

c. One Harrington and Richardson Arms .12 gauge shotgun, serial number 57875.

d. One Winchester .12 gauge shotgun, model 37A, serial number C1038911.

e. One Norinco SKS 7.62 x 39 rifle with bayonet and sling, serial number 1308020D, with two magazines, one of which was loaded.

f. Eight (8) rounds of S & B 7.62 x 39 ammunition.

g. One Marlin Firearms Company, Glenfield model 60, .22 caliber semi-automatic rifle with a scope, serial number 27150153(A), in a black case.





This is only a preliminary outline of the elements of the offenses charged in the indictment. At the end of the trial, I will give you final written instructions on these offenses and any specific defenses, in addition to failure of the Government to prove the elements of the charges beyond a reasonable doubt, that the defendants may raise to the charges. Because they are more detailed, those final instructions govern on the elements of the offenses charged and the defendants' defenses to them.

PRELIMINARY INSTRUCTION NO. 4 - OUTLINE OF TRIAL



The trial will proceed as follows:

After these preliminary instructions, the prosecutor may make an opening statement. Next, the lawyer for each of the defendants 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 each of the defendants may, but has no obligation to, cross-examine. Following the prosecution's case, each defendant may, but does not have to, present evidence and call witnesses. If a defendant calls witnesses, the prosecutor may cross-examine them.

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

PRELIMINARY INSTRUCTION NO. 5 - PRESUMPTION OF INNOCENCE



The defendants 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 Cindy Wilcke or Thomas Bryan Wilcke or the fact that they are here in court. The presumption of innocence remains with each defendant throughout the trial. That presumption alone is sufficient to find him or her not guilty. The presumption of innocence may be overcome as to a particular 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 to prove his or her innocence, for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. 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 particular defendant has committed each and every essential element of an offense charged in the indictment against that defendant, you must find that defendant not guilty of that offense. Keep in mind that you must give separate consideration to the evidence about each individual defendant and each offense charged. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant on each count with which he or she is charged.

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 a 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 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 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 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. 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 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 27th day of November, 2000.





FINAL INSTRUCTION NO. 1 - INTRODUCTION



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

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

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

FINAL INSTRUCTION NO. 2 - DUTY OF JURORS



Your duty is to decide from the evidence whether each defendant is not guilty or guilty 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, 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 have said or done during the trial or may say or do as indicating what I think of the evidence or what I think your verdict should be.

Please remember that only defendants Cindy Wilcke and Thomas Bryan Wilcke, not anyone else, are on trial here, and that these defendants are on trial only for the crimes charged against them, not for anything else.

Finally, keep in mind that the indictment charges these defendants with two separate offenses. Therefore, you must consider separately each count and each defendant charged with that count, and return a separate verdict for each defendant on each count.

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. Each of the defendants has pleaded not guilty to the crimes charged against him or her, and each is therefore presumed to be innocent unless and until the prosecution proves his or her guilt on an offense charged beyond a reasonable doubt.

The indictment charges that each offense was committed "on or about" a certain date or "between about" and "through" certain dates. 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.

Your verdict on each charge against each defendant must be unanimous.

FINAL INSTRUCTION NO. 4 - "INTENT"AND "KNOWLEDGE"



"Intent" and "knowledge" are elements of the offenses charged in this case. "Intent" and "knowledge" may be proved like anything else. You may consider the evidence of a defendant's words, acts, or omissions, along with all of the facts and circumstances in evidence that may aid in your determination of that 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 a defendant is aware of the act and does not act through ignorance, mistake, or accident. The prosecution is not required to prove that a defendant knew that his or her acts or omissions were unlawful.

FINAL INSTRUCTION NO. 5 - "POSSESSION," "DISTRIBUTION,"

AND "DELIVERY"



The offenses charged involve "possession," "distribution," and "delivery" of a controlled substance, firearm, or ammunition. The following definitions of these terms apply in these instructions:

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

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

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

FINAL INSTRUCTION NO. 6 - COUNT I: CONSPIRACY



In Count I of the indictment, the Government alleges that, between about February 1999 through August 1999, the defendants conspired to manufacture and possess with intent to distribute 50 grams or more of actual (pure) methamphetamine. The crime of conspiracy, as charged in Count I of the indictment, has three essential elements, which are the following:

One, between about February 1999 through August 1999, two or more persons reached an agreement or came to an understanding to manufacture methamphetamine or to possess methamphetamine with intent to distribute it;

The prosecution must prove that a defendant reached an agreement or understanding with at least one other person. It makes no difference whether that person is a defendant, or named in the indictment, or otherwise charged with a crime. There is no requirement that 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 manufacture methamphetamine or to possess methamphetamine with intent to distribute it, you should consider the elements of these offenses as explained in Final Jury Instruction No. 7, concerning objectives of the conspiracy. However, you are also instructed that mere knowledge of the manufacture, possession, or distribution of methamphetamine or presence near a place where methamphetamine is being manufactured, possessed, or distributed does not, of itself, constitute agreement to manufacture methamphetamine or to possess methamphetamine with intent to distribute it.

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



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

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 a particular defendant became a member of the conspiracy, you may consider only the acts and statements of that defendant.



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

Again, it is not necessary that the members have directly stated between 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 even if his or her acts furthered the conspiracy.



For you to find a particular defendant guilty of the crime of conspiracy, as charged in the indictment, the Government must prove all of the essential elements of this offense beyond a reasonable doubt as to that defendant; otherwise, you must find that defendant not guilty of the crime of conspiracy as charged in the indictment.

FINAL INSTRUCTION NO. 7 - COUNT I: OBJECTIVES

OF THE CONSPIRACY





The indictment charges that the conspiracy involved in Count I had two objectives, that is, that the defendants conspired to commit two separate crimes or offenses, manufacturing methamphetamine and possession of methamphetamine with intent to distribute it. It is not necessary for the government to prove a conspiracy to commit both of these offenses. It would be sufficient if the government proves, beyond a reasonable doubt, a conspiracy to commit one of these offenses; however, in order to return a verdict of guilty, you must unanimously agree upon which one or more of the offenses was or were the objective of the conspiracy. If you cannot agree in that manner, you must find the defendants not guilty.

To assist you in determining whether there was an agreement to manufacture methamphetamine or to possess methamphetamine with intent to distribute it, you should consider the elements of these offenses.



Manufacturing methamphetamine

To find a person guilty of the crime of manufacturing methamphetamine, which is alleged to be one objective of the conspiracy charged in Count I, the Government would have to prove each of the following elements beyond a reasonable doubt against that person:

One, the person manufactured methamphetamine; and

Two, the person knew that he or she was, or intended to be, manufacturing methamphetamine.



Possession of methamphetamine with intent to distribute it

To find a person guilty of the crime of possession of methamphetamine with intent to distribute it, which is alleged to be another objective of the conspiracy charged in Count I, the Government would have to prove each of the following elements beyond a reasonable doubt against that person:

One, the person was in possession of methamphetamine;

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

Three, the person intended to distribute some or all of the methamphetamine to another person.



Keep in mind that the indictment charges the defendants with conspiracy to manufacture methamphetamine or to possess methamphetamine with intent to distribute it, not that either of the crimes alleged to be objectives of the conspiracy was actually committed.

FINAL INSTRUCTION NO. 8 - COUNT I: ACTS AND STATEMENTS OF

CO-CONSPIRATORS





If you find beyond a reasonable doubt that a conspiracy existed and that a particular 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.

FINAL INSTRUCTION NO. 9 - COUNT I: QUANTITY OF

METHAMPHETAMINE





If you find a defendant guilty of the offense charged in Count I (conspiracy), as explained in Final Jury Instruction No. 6, you must determine beyond a reasonable doubt the quantity of the methamphetamine involved in the conspiracy for which that defendant can be held responsible. The prosecution does not have to prove that the conspiracy involved the amount or quantity of methamphetamine charged in the indictment, although the prosecution must prove beyond a reasonable doubt the quantity of methamphetamine involved in the conspiracy for which the defendant can be held responsible.

You must ascertain whether or not the controlled substance in question was in fact methamphetamine, as specified in the indictment, and you must determine beyond a reasonable doubt the amount of the methamphetamine involved in the offense for which the defendant can be held responsible. In so doing, you may consider all of the evidence in the case that may aid in the determination of these issues.

A particular defendant guilty of conspiracy to manufacture methamphetamine or to possess methamphetamine with intent to distribute it, as charged in Count I of the indictment, and explained in Final Jury Instruction No. 6, is responsible for quantities of controlled substances he or she manufactured or possessed with intent to distribute. Such a defendant is also responsible for those quantities fellow conspirators manufactured or possessed with intent to distribute if you find that the defendant could have reasonably foreseen, at the time he or she joined the conspiracy or while the conspiracy lasted, that the manufacture or possession of those quantities of methamphetamine were a necessary or natural consequence of the conspiracy.

You must make a separate determination of the quantity of methamphetamine for which each defendant convicted of the conspiracy charged in Count I can be held responsible, although you may find the same quantity for each defendant, if you find that both defendants were guilty of this conspiracy offense. For each offense for which you find a defendant guilty, you must determine the range within which the total quantity of methamphetamine for which that particular defendant can be held responsible falls. You must determine that total quantity in terms of grams of actual (pure) methamphetamine.

Again, you must make the determination of the quantity of the methamphetamine involved in the conspiracy offense for which the defendant can be held responsible beyond a reasonable doubt.

FINAL INSTRUCTION NO. 10 - COUNT II: POSSESSION OF A FIREARM

BY AN UNLAWFUL USER OF A CONTROLLED SUBSTANCE





Next, in Count II of the indictment, the Government alleges that, on or about August 27, 1999, the defendants knowingly possessed firearms and ammunition while they were unlawful users of a controlled substance. The crime of possession of a firearm by an unlawful user of a controlled substance, as charged in Count II of the indictment, has three essential elements, which are the following:

One, on or about August 27, 1999, the defendant knowingly possessed either a firearm or ammunition, or both.

It is an offense for an unlawful user of a controlled substance knowingly to possess either a firearm or ammunition. Again, "knowledge" was defined for you in Final Instruction No. 4 and "possession" was defined for you in Final Instruction No. 5.

You do not have to find that a defendant knowingly possessed all of the firearms and ammunition charged in the indictment. It is an offense for an unlawful user of a controlled substance knowingly to possess either a single firearm or ammunition. Therefore, the prosecution does not need to prove that a defendant was in possession of more than one of the firearms or ammunition identified in the indictment; it is sufficient if the prosecution proves that the defendant was in possession of any one of those firearms or the ammunition. However, you must unanimously agree on whether a defendant possessed a particular firearm or the ammunition, or some combination of firearms and ammunition, for you to find that this element has been proved.

In the indictment, the Government alleges that each defendant possessed the following firearms and ammunition:

a. One Stevens J. Arms Company .410 gauge pump shotgun, Westpoint model 167, with no serial number.

b. One Marlin Firearms .22 caliber bolt action rifle, Model 81-DL-22-S-L-LR, with no serial number.

c. One Harrington and Richardson Arms .12 gauge shotgun, serial number 57875.

d. One Winchester .12 gauge shotgun, model 37A, serial number C1038911.

e. One Norinco SKS 7.62 x 39 rifle with bayonet and sling, serial number 1308020D, with two magazines, one of which was loaded.

f. Eight (8) rounds of S & B 7.62 x 39 ammunition.

g. One Marlin Firearms Company, Glenfield model 60, .22 caliber semi-automatic rifle with a scope, serial number 27150153(A), in a black case.



Two, during the time the defendant possessed the firearm, ammunition, or both, the defendant was an unlawful user of a controlled substance.

The prosecution does not need to prove that the defendant was actually using or addicted to drugs at the exact moment the defendant possessed the firearms or ammunition in question, or any one of them, in order for that defendant to be found to be an unlawful user in possession of a firearm or ammunition. The prosecution must only prove that a defendant was an "unlawful user" or addicted to a controlled substance during the time the defendant possessed the firearms or ammunition in question, or any one of them.



Three, at some time prior to the defendant's possession of the firearm, ammunition, or both, it was or they were transported across a state line.

If you find beyond a reasonable doubt that a firearm or ammunition in question was manufactured in a state other than Iowa and that the defendant possessed that firearm in the State of Iowa, then you may, but are not required to, find that the firearm or ammunition was transported across a state line



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

FINAL INSTRUCTION NO. 11 - IMPEACHMENT

AND TREATMENT OF CERTAIN EVIDENCE





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

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

You have heard evidence that the following witnesses have been convicted of one or more crimes: Fred Thomas Grell, Mindy Jo Wittrock, and Jesse William Greenwald. 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 some of these witnesses have pleaded guilty to a charge that arose out of the same events for which the defendants here are now on trial. You cannot consider such a witness's guilty plea as any evidence of the guilt of a defendant now on trial. 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 Fred Thomas Grell, Mindy Jo Wittrock, and Jesse William Greenwald are testifying pursuant to plea agreements and hope to receive reductions in their sentences in return for their cooperation with the prosecution in this case. If the prosecutor handling such a witness's case believes the witness has provided "substantial assistance," the prosecutor can file a motion to reduce the witness's sentence. The judge has no power to reduce a sentence for such a witness for substantial assistance unless the U.S. Attorney files a motion requesting such a reduction. If the motion for reduction of sentence for substantial assistance is filed by the U.S. Attorney, then it is up to the judge to decide whether to reduce the sentence of that witness at all, and if so, how much to reduce it. You may give the testimony of such witnesses such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by the witness's hope of receiving a reduction in sentence is for you to decide.

2. You have also heard testimony from Fred Thomas Grell and Mindy Jo Wittrock that they participated in one or more of the crimes charged against the defendants. Their testimony was received in evidence and you may consider it. You may give the testimony of such a witness such weight as you think it deserves. Whether or not the testimony of such a witness may have been influenced by his or her desire to please the government or to strike a good bargain with the government about his or 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. 12 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF



The defendants 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 Cindy Wilcke or Thomas Bryan Wilcke or the fact that they are here in court. The presumption of innocence remains with each defendant throughout the trial. That presumption alone is sufficient to find him or her not guilty. The presumption of innocence may be overcome as to a particular defendant only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against him or her.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to any defendant to prove his or her innocence, for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. 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 particular defendant has committed each and every essential element of an offense charged in the indictment against that defendant, you must find that defendant not guilty of that offense. Keep in mind that you must give separate consideration to the evidence about each individual defendant and each offense charged. Each defendant is entitled to be treated separately, and you must return a separate verdict for each defendant on each count with which he or she is charged.

FINAL INSTRUCTION NO. 13 - 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. 14 - DUTY TO DELIBERATE



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

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

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

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. 15 - 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 Cindy Wilcke or Thomas Bryan Wilcke 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 1st day of December, 2000.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



UNITED STATES OF AMERICA,
Plaintiff,

No. CR 99-4038-MWB

vs.



VERDICT FORM

CINDY WILCKE and THOMAS BRYAN WILCKE,
Defendants.

____________________



CINDY WILCKE



As to the crimes charged in the indictment, we, the Jury, unanimously find defendant Cindy Wilcke guilty or not guilty as follows:



COUNT DESCRIPTION VERDICT
Count 1: Conspiracy to distribute methamphetamine, as explained in Final Jury Instruction No. 6 _____ Not Guilty

_____ Guilty

If you have found defendant Cindy Wilcke guilty of this conspiracy offense, which offense or offenses do you find was or were an objective of the conspiracy? (Please mark all that apply.)
Manufacturing methamphetamine _____
Possession of methamphetamine with intent to distribute it _____
If you have found defendant Cindy Wilcke guilty of this conspiracy offense, what is the quantity of methamphetamine involved in the conspiracy for which you find beyond a reasonable doubt that she can be held responsible, as determination of quantity of methamphetamine is explained in Final Jury Instruction No. 9? (Please make your determination of the range within which the total quantity of methamphetamine for which this defendant can be held responsible falls and indicate that total quantity in terms of grams of actual (pure) methamphetamine.)
50 grams or more of actual (pure) methamphetamine _____
5 to 49 grams of actual (pure) methamphetamine _____
Less than 5 grams of actual (pure) methamphetamine _____
Count II: Possession of a firearm or ammunition by an unlawful user of controlled substances, as explained in Final Jury Instruction No. 10 _____ Not Guilty

_____ Guilty

If you have found defendant Cindy Wilcke guilty of this offense, what firearm(s) and/or ammunition do you find she possessed? (Please mark all that apply.)
a. One Stevens J. Arms Company .410 gauge pump shotgun, Westpoint model 167, with no serial number



_____
b. One Marlin Firearms .22 caliber bolt action rifle, Model 81-DL-22-S-L-LR, with no serial number

_____
c. One Harrington and Richardson Arms .12 gauge shotgun, serial number 57875

_____
d. One Winchester .12 gauge shotgun, model 37A, serial number C1038911

_____
e. One Norinco SKS 7.62 x 39 rifle with bayonet and sling, serial number 1308020D, with two magazines, one of which was loaded

_____
f. Eight (8) rounds of S & B 7.62 x 39 ammunition _____
g. One Marlin Firearms Company, Glenfield model 60, .22 caliber semi-automatic rifle with a scope, serial number 27150153(A), in a black case

_____






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THOMAS BRYAN WILCKE



As to the crimes charged in the indictment, we, the Jury, unanimously find defendant Thomas Bryan Wilcke guilty or not guilty as follows:



COUNT DESCRIPTION VERDICT
Count 1: Conspiracy to distribute methamphetamine, as explained in Final Jury Instruction No. 6 _____ Not Guilty

_____ Guilty

If you have found defendant Thomas Bryan Wilcke guilty of this offense, which offense or offenses do you find was or were an objective of the conspiracy? (Please mark all that apply.)
Manufacturing methamphetamine _____
Possession of methamphetamine with intent to distribute it _____
If you have found defendant Thomas Bryan Wilcke guilty of this conspiracy offense, what is the quantity of methamphetamine involved in the conspiracy for which you find beyond a reasonable doubt that he can be held responsible, as determination of quantity of methamphetamine is explained in Final Jury Instruction No. 9? (Please make your determination of the range within which the total quantity of methamphetamine for which this defendant can be held responsible falls and indicate that total quantity in terms of grams of actual (pure) methamphetamine.)
50 grams or more of actual (pure) methamphetamine _____
5 to 49 grams of actual (pure) methamphetamine _____
Less than 5 grams of actual (pure) methamphetamine _____
Count II: Possession of a firearm or ammunition by an unlawful user of controlled substances, as explained in Final Jury Instruction No. 10 _____ Not Guilty

_____ Guilty

If you have found defendant Thomas Bryan Wilcke guilty of this offense, what firearm(s) and/or ammunition do you find he possessed? (Please mark all that apply.)
a. One Stevens J. Arms Company .410 gauge pump shotgun, Westpoint model 167, with no serial number



_____
b. One Marlin Firearms .22 caliber bolt action rifle, Model 81-DL-22-S-L-LR, with no serial number

_____
c. One Harrington and Richardson Arms .12 gauge shotgun, serial number 57875

_____
d. One Winchester .12 gauge shotgun, model 37A, serial number C1038911

_____
e. One Norinco SKS 7.62 x 39 rifle with bayonet and sling, serial number 1308020D, with two magazines, one of which was loaded

_____
f. Eight (8) rounds of S & B 7.62 x 39 ammunition _____
g. One Marlin Firearms Company, Glenfield model 60, .22 caliber semi-automatic rifle with a scope, serial number 27150153(A), in a black case

_____






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