IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

EASTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff, No. CR 98-1011-MWB
vs.

PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

JEREMY KAUNE,
Defendant.

____________________





TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - STATEMENT OF THE CASE 2

NO. 3 - OUTLINE OF TRIAL 4

NO. 4 - PRESUMPTION OF INNOCENCE 5

NO. 5 - REASONABLE DOUBT 6

NO. 6 - DEFINITION OF EVIDENCE 7

NO. 7 - CREDIBILITY OF WITNESSES 9

NO. 8 - STIPULATED TESTIMONY 10

NO. 9 - BENCH CONFERENCES AND RECESSES 11

NO. 10 - OBJECTIONS 12

NO. 11 - NOTE-TAKING 13

NO. 12 - CONDUCT OF THE JURY 14

FINAL INSTRUCTIONS 16

NO. 1 - INTRODUCTION 16

NO. 2 - DUTY OF JURORS 17

NO. 3 - NATURE OF AN INDICTMENT 18

NO. 4 - OFFENSES CHARGED 19

NO. 5 - "INTENT," "KNOWLEDGE," AND "WILLFULNESS" 20

NO. 6 - COUNT I: CONSPIRACY TO TRANSPORT STOLEN

MOTORCYCLES IN INTERSTATE COMMERCE 21

NO. 7 - COUNT II: MAKING A FALSE DECLARATION 25

NO. 8 - COUNT III: MAKING A FALSE STATEMENT TO AN

INVESTIGATOR 26

NO. 9 - ALIBI 28

NO. 10 - IMPEACHMENT AND TESTIMONY OF CERTAIN

WITNESSES 29

NO. 11 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF 30

NO. 12 - REASONABLE DOUBT 31

NO. 13 - DUTY TO DELIBERATE 32

NO. 14 - DUTY DURING DELIBERATIONS 34



VERDICT FORM



PRELIMINARY INSTRUCTION NO. 1 - PRELIMINARY INSTRUCTIONS



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

PRELIMINARY INSTRUCTION NO. 2 - STATEMENT OF THE CASE



This is a criminal case brought by the United States of America against defendant Jeremy Kaune. The United States charges Mr. Kaune with three separate offenses. First, the United States charges Mr. Kaune with knowingly making a false material declaration or statement while testifying under oath in a proceeding before a federal grand jury on or about September 10, 1997. Second, the United States charges Mr. Kaune with conspiring with other persons, during about May of 1997, unlawfully to transport stolen motorcycles in interstate commerce, knowing the motorcycles to be stolen. Third, the United States charges Mr. Kaune with knowingly and willfully making a false statement to investigators on or about June 9, 1998, concerning his involvement in the theft of a motorcycle from East Dubuque, Illinois.

These charges are set forth in what is called an indictment. An indictment is simply an accusation. It is not evidence of anything. Jeremy Kaune has pleaded not guilty to the crimes charged against him, and he is presumed to be innocent unless and until the prosecution proves his guilt on an offense beyond a reasonable doubt.

Therefore, your duty is to decide from the evidence whether Jeremy Kaune is guilty or not 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 that I give you in these and in my other instructions to reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

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

Finally, please remember that only Jeremy Kaune, not anyone else, is on trial here, and that Jeremy Kaune is on trial only for the crimes charged against him, not for anything else.

PRELIMINARY INSTRUCTION NO. 3 - 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 the final instructions. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you some instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 4 - PRESUMPTION OF INNOCENCE



Jeremy Kaune 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. Kaune, 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, 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 the defendant has committed each and every element of an offense charged in the indictment against him, you must find the defendant not guilty of that offense.

PRELIMINARY INSTRUCTION NO. 5 - REASONABLE DOUBT



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



PRELIMINARY INSTRUCTION NO. 6 - DEFINITION OF EVIDENCE



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

Evidence is:

1. Testimony in person.

2. Testimony previously given, which includes depositions.

3. Exhibits I admit into evidence.

4. Stipulations, which are agreements between the parties.

5. Any other matter I admit into evidence.

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

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

The following are not evidence:

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

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

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

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

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

PRELIMINARY INSTRUCTION NO. 7 - 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 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.

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

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. 8 - STIPULATED TESTIMONY



The prosecution and the defendant have stipulated--that is, they have agreed--that if certain witnesses were called to testify, they would testified in the way counsel states. You should accept that stipulation as to the testimony of those witnesses just as if the testimony were to be given here in court from the witness stand. The prosecution and the defendant have also stipulated that certain facts are as counsel states them to be. You must therefore treat those facts as having been proved.

PRELIMINARY INSTRUCTION NO. 9 - BENCH

CONFERENCES AND RECESSES





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



PRELIMINARY INSTRUCTION NO. 10 - OBJECTIONS



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





PRELIMINARY INSTRUCTION NO. 11 - NOTE-TAKING



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

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

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

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



PRELIMINARY INSTRUCTION NO. 12 - CONDUCT OF THE JURY



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

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

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

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

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

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

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

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

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

DATED this 9th day of February, 1999.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE

FINAL INSTRUCTION NO. 1 - INTRODUCTION



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

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

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

FINAL INSTRUCTION NO. 2 - DUTY OF JURORS



Your duty is to decide from the evidence whether the defendant is guilty or not 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 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.

Finally, please remember that only Jeremy Kaune, not anyone else, is on trial here, and that Jeremy Kaune is on trial only for the crimes charged against him, not for anything else.

FINAL INSTRUCTION NO. 3 - NATURE OF AN INDICTMENT



The charges against this defendant 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. Jeremy Kaune has pleaded not guilty to the crimes charged against him, and he is presumed to be innocent unless and until the prosecution proves his guilt on an offense beyond a reasonable doubt.

The indictment charges that the offenses were committed "on or about" or "during about" a certain date or time period. 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.

Also keep in mind that the indictment charges this defendant with three separate offenses. You must consider separately each crime charged and must return a separate verdict for each crime.



FINAL INSTRUCTION NO. 4 - OFFENSES CHARGED



The United States charges Mr. Kaune with three separate offenses.

First, the Indictment charges that during about May of 1997, defendant Jeremy Kaune knowingly combined, conspired, confederated, and agreed with other persons unlawfully to transport stolen motorcycles in interstate commerce, knowing the motorcycles to be stolen.

Second, the Indictment charges that on or about September 10, 1997, defendant Jeremy Kaune, while under oath and testifying in a proceeding before a federal grand jury investigating the alleged theft and interstate transportation of stolen motor vehicles, knowingly made a false material declaration.

Third, the Indictment charges that on or about June 9, 1998, in a matter within the jurisdiction of the Federal Bureau of Investigation, defendant Jeremy Kaune did knowingly and willfully make a false, fraudulent, and fictitious material statement, that is, the defendant claimed to investigators that he could not have been involved in the theft of a motorcycle from East Dubuque, Illinois, in about May of 1997, because he had been working at Farmland Foods the evening the motorcycle had been stolen.

Mr. Kaune has pleaded not guilty to each crime with which he is charged.

I will explain the elements of these offenses in more detail in the instructions that follow.

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

AND "WILLFULNESS"



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

As to "intent," you may, but are not required to, infer that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted.

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

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

FINAL INSTRUCTION NO. 6 - COUNT I: CONSPIRACY TO

TRANSPORT STOLEN MOTORCYCLES

IN INTERSTATE COMMERCE





The first crime with which Mr. Kaune is charged is conspiracy to transport stolen motorcycles in interstate commerce. In order to find the defendant guilty of this offense, the prosecution must prove each of the following four essential elements beyond a reasonable doubt:

One, in about May of 1997, two or more persons reached an agreement or came to an understanding to transport stolen motorcycles across state lines.

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.

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

1. In about May of 1997, one or more co-conspirators traveled by car from Dubuque, Iowa, to or near East Dubuque, Illinois.



2. A 1986 yellow Suzuki motorcycle, VIN JS1DJ41AXF2100286 was stolen from East Dubuque, Illinois, and transported to Dubuque, Iowa.



If the prosecution has failed to prove all of these elements beyond a reasonable doubt against defendant Kaune, you must find him not guilty of the offense of conspiracy to transport stolen motorcycles in interstate commerce.

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

The prosecution must prove that a defendant reached an agreement or understanding with at least one other person. It makes no difference whether that person is a defendant, or named in the indictment, or otherwise charged with a crime.

The "agreement or understanding" need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated among themselves the details or purpose of the scheme. Nor is it necessary for the prosecution to prove that the defendant benefitted from the unlawful plan.

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

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

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

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

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

To help you determine whether there was an agreement or understanding to transport stolen motorcycles in interstate commerce, you are advised that the crime of transportation of stolen motorcycles in interstate commerce has three essential elements:



One, the motorcycle described in the indictment count was stolen;

Two, after the motorcycle was stolen, a person charged with that offense moved or caused it to be moved across a state line;

Three, at the time he moved the motorcycle or caused it to be moved across a state line, the person charged with that offense knew it was stolen.

Property has been "stolen" when it has been taken with the intent to permanently or temporarily deprive the owner of the rights and benefits of ownership.



Keep in mind, however, that the first charge against Mr. Kaune is conspiracy to commit this offense, not that this offense was actually committed.

FINAL INSTRUCTION NO. 7 - COUNT II: MAKING A FALSE

DECLARATION



The second crime with which Mr. Kaune is charged is making a false declaration. In order to find the defendant guilty of this offense, the prosecution must prove each of the following four essential elements beyond a reasonable doubt:

One, on or about September 10, 1997, defendant Jeremy Kaune testified under oath or affirmation before a grand jury as follows:

Q: Have you ever traveled to East Dubuque or Galena or anywhere in between, Illinois, with Ware, Plumley, Burns, Jenaman or Schoenberger?



A: No, I haven't.



Two, such testimony was false.

Three, at the time he so testified, Jeremy Kaune knew his testimony was false.

Four, the false testimony was material.

Deciding whether a statement is "material" requires you to answer three questions: (a) "what statement was made?"; (b) "what decision was the grand jury trying to make?"; and (c) "was the statement material to the grand jury's decision?" A statement is "material" if the statement had a natural tendency to influence, or was capable of influencing, the decision of the grand jury.

The prosecution is not required to prove that the false statement actually influenced the grand jury for you to find that the statement was "material," but the prosecution must prove that the statement could predictably influence the grand jury.



If the prosecution has failed to prove all of these elements beyond a reasonable doubt against defendant Kaune, you must find him not guilty of the offense of making a false declaration.

FINAL INSTRUCTION NO. 8 - COUNT III: MAKING

A FALSE STATEMENT TO AN INVESTIGATOR



The third offense with which Mr. Kaune is charged is making a false statement to an investigator. In order to find the defendant guilty of this offense, the prosecution must prove each of the following three essential elements beyond a reasonable doubt:

One, on or about June 9, 1998, defendant Kaune knowingly and willfully made a false, fictitious, or fraudulent statement in regards to a criminal investigation being conducted by the FBI.

A statement is "false" or "fictitious," if untrue when made, and then known to be untrue by the person making it or causing it to be made. A statement is "fraudulent," if known to be untrue, and made or caused to be made with the intent to deceive the governmental agency to whom it was submitted.



Two, the statement was material to the FBI's investigation into the alleged theft and interstate transportation of stolen motorcycles.

Deciding whether a statement is "material" requires you to answer three questions: (a) "what statement was made?"; (b) "what decision was the FBI investigator trying to make?"; and (c) "was the statement material to the FBI investigator's decision?" A statement is "material" if the statement had a natural tendency to influence, or was capable of influencing, the decision of the FBI investigator.

The prosecution is not required to prove that the false statement actually influenced the FBI investigator for you to find the statement was "material," but the prosecution must prove that the statement could predictably influence the FBI investigator.



Three, the stolen motorcycle investigation was a matter within the jurisdiction of the FBI.

You may find that this element has been satisfied if you find that the FBI's function includes the investigation of criminal activity involving the theft and interstate transportation of stolen motor vehicles.



If the prosecution has failed to prove all of these elements beyond a reasonable doubt against defendant Kaune, you must find him not guilty of the offense of making a false statement to an investigator.

FINAL INSTRUCTION NO. 9 - ALIBI



One of the issues in this case is whether defendant Jeremy Kaune was present at the time and place of the alleged crime in Count I--conspiracy to transport stolen motorcycles in interstate commerce--defined in Final Instruction No. 6. If, after considering all the evidence, you have a reasonable doubt that Mr. Kaune was present, then you must find him not guilty of Count I. If you find that Mr. Kaune is not guilty of Count I, then you must also find him not guilty of Counts II and III, as defined in Final Instructions No. 7 and No. 8, respectively. This is so, because if Jeremy Kaune is not guilty of Count I, the allegedly false statements upon which Counts II and III are based would not be "material."

FINAL INSTRUCTION NO. 10 - IMPEACHMENT AND

TESTIMONY OF CERTAIN WITNESSES



In Preliminary Instruction No. 7, I instructed you generally on the credibility of witnesses. I now give you this further instruction on how the credibility of a witness can be "impeached" and how you are to consider the testimony of certain witnesses.

A witness may be discredited or impeached by contradictory evidence; by a showing that the witness testified falsely concerning a material matter; or by evidence that at some other time the witness has said or done something, or has failed to say or do something, that is inconsistent with the witness's present testimony.

If you believe that a witness has been discredited or impeached, it is your exclusive right to give that witness's testimony whatever weight you think it deserves.

You have also heard evidence that Nick Ware, Ray Jenaman, and Scott Plumley hope to receive a reduction in sentence in return for their cooperation with the prosecution in this case. You should consider the testimony of these witnesses with greater caution and care than that of other witnesses, but you may give the testimony of these witnesses such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by that witness's hope of receiving a reduced sentence is for you to decide.

FINAL INSTRUCTION NO. 11 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF



Jeremy Kaune 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. Kaune or the fact that he is here in court. The presumption of innocence remains with Mr. Kaune throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to Mr. Kaune 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 any defendant, for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. A defendant is not even obligated to produce any evidence by cross-examining the witnesses who are called to testify by the prosecution.

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



FINAL INSTRUCTION NO. 12 - REASONABLE DOUBT



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

FINAL INSTRUCTION NO. 13 - DUTY TO DELIBERATE



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

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

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



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

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

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

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

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

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

DATED this 11th day of February, 1999.



_____________________________

MARK W. BENNETT

U. S. DISTRICT COURT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

EASTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff, No. CR 98-1011-MWB
vs.

VERDICT FORM
JEREMY KAUNE,
Defendant.

____________________





COUNT I: CONSPIRACY TO TRANSPORT

STOLEN MOTORCYCLES IN INTERSTATE COMMERCE



As to the charge of conspiracy to transport stolen motorcycles in interstate commerce, as explained in Final Instruction No. 6, we, the Jury, unanimously find defendant Jeremy Kaune

Not Guilty ______ Guilty _______

(Remember that if you find defendant Jeremy Kaune not guilty of Count I, then you cannot find him guilty of Counts II and III. Therefore, if you have found Jeremy Kaune not guilty on Count I, please mark "not guilty" for Counts II and III as well. However, if you have found Jeremy Kaune guilty of Count I, you must consider separately the crimes charged in Counts II and III and must return a separate verdict for each of those Counts.)





COUNT II: MAKING A FALSE DECLARATION



As to the charge of making a false declaration, as explained in Final Instruction No. 7, we, the Jury, unanimously find defendant Jeremy Kaune

Not Guilty ______ Guilty _______



COUNT III: MAKING A FALSE STATEMENT

TO AN INVESTIGATOR



As to the charge of making a false statement to an investigator, as explained in Final Instruction No. 8, we, the Jury, unanimously find defendant Jeremy Kaune

Not Guilty ______ Guilty _______





_____________

DATE



_____________________________ ____________________________

FOREPERSON JUROR

____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR



____________________________ ____________________________

JUROR JUROR