IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 00-4063-MWB

vs.



INSTRUCTIONS

TO THE JURY

DAVID WAYNE PETERSON,
Defendant.






TABLE OF CONTENTS

INSTRUCTIONS 1

NO. 1 - INTRODUCTION 1

NO. 2 - DEFINITION OF EVIDENCE 2

NO. 3 - MAKING FALSE STATEMENTS IN AN ATTEMPT TO ACQUIRE

A FIREARM 4

NO. 4 - CREDIBILITY AND IMPEACHMENT 7

NO. 5 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF 9

NO. 6 - REASONABLE DOUBT 10

NO. 7 - NOTE-TAKING 11

NO. 8 - DUTY TO DELIBERATE 12

NO. 9 - DUTY DURING DELIBERATIONS 14



VERDICT FORM

INSTRUCTION NO. 1 - INTRODUCTION



Members of the jury, consider these instructions, together with any oral instructions given to you during 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.

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

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

Please remember that only defendant David Wayne Peterson, not anyone else, is on trial here, and that this defendant is on trial only for the crime charged against him, not for anything else.

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.

INSTRUCTION NO. 2 - DEFINITION OF EVIDENCE



Your verdict must be based only on the evidence and these and other instructions that I may have given 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 told you to disregard.

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

Furthermore, a particular item of evidence may be 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. If this happens, I will 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 who testified 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.

INSTRUCTION NO. 3 - MAKING FALSE STATEMENTS IN AN

ATTEMPT TO ACQUIRE A FIREARM





The United States charges that, on or about October 26, 1999, in connection with his attempted acquisition of a firearm, in this case, a Hi-Point 9mm rifle, from Roy's Antiques and Sporting Goods in Cherokee, Iowa, a licensed dealer, defendant David Wayne Peterson knowingly made a false or fictitious written statement to Roy's Antiques and Sporting Goods, which statement was likely to deceive that licensed dealer as to a fact material to the lawfulness of the sale of that firearm to the defendant or the acquisition or attempted acquisition of that firearm by the defendant.

The charge against this defendant is set forth in what is called an indictment. An indictment is simply an accusation. It is not evidence of anything. The defendant has pleaded not guilty to the crime charged against him, and he is therefore presumed to be innocent unless and until the prosecution proves his guilt on the offense charged beyond a reasonable doubt.

For you to find Mr. Peterson guilty of this offense, as charged in the indictment, the prosecution must prove each of the following three elements beyond a reasonable doubt:

One, on or about October 26, 1999, in connection with the acquisition or attempted acquisition of a firearm from a licensed dealer, the defendant made a false or fictitious statement.

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

You are instructed that the parties have stipulated--that is, they have agreed--that Roy's Antiques and Sporting Goods in Cherokee, Iowa, holds a federal license to deal in firearms.

The term "firearm" means any weapon (including a starter gun) that will or is designated to or may be readily converted to expel a projectile by the action of an explosive.

The defendant must make a false statement in connection with the acquisition or attempted acquisition of a firearm. The offense is committed whether or not a firearm is successfully acquired.

A statement is "false" or "fictitious," if it is untrue when made.



Two, the defendant knew the statement was false or fictitious.

"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 the defendant's "knowledge." 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 acts or omissions were unlawful.



Three, the false or fictitious statement was likely to deceive the dealer with respect to a fact material to the lawfulness of the sale.

You are instructed that David Wayne Peterson has one or more convictions of crimes of domestic violence. You are also instructed that, as a matter of law, a false statement that a person acquiring or attempting to acquire a firearm had not been convicted of a misdemeanor crime of domestic violence is "material," in that the false statement would affect the legality of the sale of a firearm to that person. This is so, because federal law prohibits persons convicted of misdemeanor crimes of domestic violence from acquiring or possessing firearms.

It is for you to determine whether the false or fictitious statement in question here was "likely to deceive the dealer" as to the material fact of the defendant's prior conviction of a misdemeanor crime of domestic violence. A false or fictitious statement is "likely to deceive the dealer" if the nature of the statement, considering all of the surrounding circumstances at the time it is made, is such that a reasonable person of ordinary prudence would have been actually deceived or misled. The fact that the false or fictitious statement may not have been ultimately successful, or may not actually have deceived or misled the dealer involved here, does not mean that the statement was not "likely to deceive the dealer."



If the prosecution has failed to prove each of these elements beyond a reasonable doubt, you must find David Wayne Peterson not guilty of the crime charged in the indictment.

INSTRUCTION NO. 4 - CREDIBILITY AND IMPEACHMENT



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

In deciding what testimony to believe, consider the witness's intelligence, the opportunity the witness had to have seen or heard the things testified about, the witness's memory, any motives that witness may have for testifying a certain way, the manner of the witness while testifying, whether that witness said something different at an earlier time, the witness's drug or alcohol use or addiction, if any, the general reasonableness of the testimony, and the extent to which the testimony is consistent with any evidence that you believe. In deciding whether or not to believe a witness, keep in mind that people sometimes see or hear things differently and sometimes forget things. You need to consider therefore whether a contradiction is an innocent misrecollection or lapse of memory or an intentional falsehood, and that may depend on whether it has to do with an important fact or a small detail.

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

Also, just because a witness works in law enforcement or is employed by the prosecution 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.

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.

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.

INSTRUCTION NO. 5 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF





The defendant 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. Peterson 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 the crime charged against him.

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

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

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.

INSTRUCTION NO. 7 - 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.

INSTRUCTION NO. 8 - DUTY TO DELIBERATE



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

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

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

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

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

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

INSTRUCTION NO. 9 - DUTY DURING DELIBERATIONS



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

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

Second, if a defendant is guilty, the sentence to be imposed is my responsibility. You may not consider punishment of Mr. Peterson 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 8th 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 00-4063-MWB

vs.



VERDICT FORM

DAVID WAYNE PETERSON,
Defendant.

____________________





As to the crime charged in the indictment, and explained in Jury Instruction No. 3, we, the Jury, unanimously find defendant David Wayne Peterson

_____ Not Guilty _____ Guilty



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