IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION


UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 04-3021-MWB

vs.


INSTRUCTIONS

TO THE JURY

TANNER McLEAN,

                 Defendant.

 

 

____________________


TABLE OF CONTENTS

 

INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - PRELIMINARY MATTERS

NO. 3 - FELON IN POSSESSION OF A FIREARM

NO. 4 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF

NO. 5 - REASONABLE DOUBT

NO. 6 - DEFINITION OF EVIDENCE

NO. 7 - CREDIBILITY AND IMPEACHMENT

NO. 8 - NOTE-TAKING

NO. 9 - CONDUCT OF THE JURY DURING TRIAL

NO. 10 - DUTY TO DELIBERATE

NO. 11 - DUTY DURING DELIBERATIONS


VERDICT FORM


 

INSTRUCTION NO. 1 - INTRODUCTION

 

        Members of the jury, these instructions are given to help you better understand the trial and your role in it and to instruct you on the law that you must apply in this case. Consider these instructions, together with all written and oral instructions given to you during or 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.

        In an Indictment, a Grand Jury charges Mr. McLean with an offense that I will describe as “felon in possession of a firearm.” As I explained during jury selection, an indictment is simply an accusation. It is not evidence of anything. The defendant has pled not guilty to the charge brought against him; therefore, he is presumed to be innocent unless and until the prosecution proves his guilt beyond a reasonable doubt on the charge against him.

        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 light of your own observations and experiences. You may use reason and common sense to draw conclusions from facts that have been established by the evidence. You will then apply the law, which I will give you in my instructions, to the facts 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, based solely on 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. Similarly, do not conclude from any ruling or other comment I may make that I have any opinions on how you should decide the case.

        Please remember that only defendant Tanner McLean, not anyone else, is on trial here. Also, remember that this defendant is on trial only for the crime charged against him, not for anything else.

        You must return a unanimous verdict on the charge against the defendant.


INSTRUCTION NO. 2 - PRELIMINARY MATTERS

 

 

        Before I turn to the elements of the offense charged in this case, I must explain some preliminary matters.

        First, the offense charged in this case consists of “elements,” which the prosecution must prove beyond a reasonable doubt in order to convict the defendant of that offense. I will summarize in the following instructions the elements of the offense with which the defendant is charged.

        Second, the Indictment alleges that the offense was committed “on or about” a specific date. 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.

        I will now give you more specific instructions about the offense charged in the Indictment.


INSTRUCTION NO. 3 - FELON IN POSSESSION

OF A FIREARM

 

 

 

        The Indictment charges that, on or about April 15, 2004, Mr. McLean possessed a .22 caliber (long rifle) Ruger Woodsmen Mark I automatic pistol, serial number 10-14666, having previously been convicted of a felony offense. For you to find the defendant guilty of this “felon in possession” offense, the prosecution must prove all of the following essential elements beyond a reasonable doubt:

        One, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year.

The prosecution and the defendant have stipulated that, prior to April 15, 2004, defendant McLean had been convicted of a crime punishable by imprisonment for more than one year under the laws of the State of Iowa. Therefore, you must consider this element to be proved.

 

        Two, the defendant thereafter knowingly possessed a firearm.

The Indictment charges that the “firearm” in question was a .22 caliber (long rifle) Ruger Woodsmen Mark I automatic pistol, serial number 10-14666. A “firearm” is any weapon that will, or is designed to, or may be readily converted to, expel a projectile by the action of an explosive. It is for you to determine whether the Ruger automatic pistol alleged in the Indictment meets this definition of a “firearm.” It is also for you to determine whether the defendant “knowingly possessed” the Ruger automatic pistol.

“Knowledge” must be proved beyond a reasonable doubt. However, it may be proved like anything else. Therefore, you may consider any statements made or acts done by the defendant, and all of the facts and circumstances in evidence, to aid you in the determination of the defendant’s knowledge. 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.

The law recognizes several kinds of “possession.” A person who knowingly has direct physical control over a firearm, 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 firearm, 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 firearm, possession is “sole.” If two or more persons share actual or constructive possession of a firearm, 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 firearm was found or mere physical proximity to the firearm is insufficient to establish “possession” of that firearm. Knowledge of the presence of the firearm, at the same time one has control over the firearm or the place in which it was found, is required. Thus, in order to establish “possession” of a firearm, the prosecution must establish that, at the same time, (a) the defendant knew of the presence of the firearm; (b) the person intended to exercise control over the firearm or place in which it was found; (c) the person had the power to exercise control over the firearm or place in which it was found; and (d) the person knew that he had the power to exercise control over the firearm or place in which it was found.

 

        Three, the firearm was transported across a state line at some time during or before the defendant’s possession of it.

The prosecution and the defendant have stipulated that the firearm in question was transported across a state line at some time before the defendant possessed it, if he did indeed possess the firearm. Therefore, you must consider this element to be proved.

 

        For you to find the defendant guilty of the offense of “felon in possession of a firearm,” as charged in the Indictment, the prosecution must prove all of the essential elements of this offense beyond a reasonable doubt. Otherwise, you must find the defendant not guilty of the offense charged in the Indictment.


INSTRUCTION NO. 4 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF

 

 

        Defendant Tanner McLean 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 the defendant 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 any 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, you must not consider that fact in any way, or even discuss it, in arriving at your verdict. The defendant is not even obligated to produce any evidence by cross-examining the witnesses who are called to testify by the prosecution.

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


INSTRUCTION NO. 5 - REASONABLE DOUBT

 

        I have previously instructed you that the prosecution must prove the charges against this defendant “beyond a reasonable doubt.” A reasonable doubt may arise from the evidence produced by any of the parties, keeping in mind that a defendant never has the burden or duty of calling any witnesses or producing any evidence. It may also arise from the prosecution’s lack of evidence. 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. 6 - DEFINITION OF EVIDENCE

 

        Your verdict must be based only on the evidence presented in this case and these and other instructions that I may give you during the trial. Evidence is:

        1.     Testimony.

        2.     Exhibits that I admit into evidence.

        3.     Stipulations, which are agreements between the parties.

        Evidence may be “direct” or “circumstantial.” 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.

        A particular item of evidence is sometimes admitted only for a limited 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.

        The fact that an exhibit may be shown to you does not mean that you must rely on it more than you rely on other evidence.

        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.

        The weight of the evidence is not necessarily determined by the number of witnesses testifying as to the existence or non-existence of any fact. Also, the weight of the evidence is not necessarily determined merely by the number or volume of documents or exhibits. The weight of evidence depends upon its quality, which means how convincing it is, and not necessarily upon its quantity. For example, you may choose to believe the testimony of one witness, if you find that witness to be convincing, even if a number of other witnesses contradict his or her testimony. The quality and weight of the evidence are for you to decide.


INSTRUCTION NO. 7 - 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 results from an innocent misrecollection or sincere lapse of memory, or instead from an intentional falsehood or pretended lapse of memory.

        Ordinarily, witnesses may only testify to factual matters within their personal knowledge. However, you may hear evidence from persons described as experts. Persons may become qualified as experts in some field by knowledge, skill, training, education, or experience. Such experts may state their opinions on matters in that field and may also state the reasons for their opinions. You should consider expert testimony just like any other testimony. You may believe all of what an expert says, only part of it, or none of it, considering the expert’s qualifications, the soundness of the reasons given for the opinion, the acceptability of the methods used, any reason the expert may be biased, and all of the other evidence in the case.

        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.

        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 may hear evidence that a witness has been convicted of a crime. You may use that evidence only to help you decide whether or not to believe these witnesses and how much weight to give their testimony.

        You may hear testimony about the character and reputation of a witness for truthfulness or untruthfulness. You may consider such evidence only to help you decide whether or not to believe the witness and how much weight to give the witness’s testimony.

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

1.You may hear evidence that a witness is testifying pursuant to a plea agreement and hopes to receive reductions in the witness’s sentence in return for the witness’s cooperation with the government 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 may also hear testimony from a witness that he or she participated in the crime charged against the defendant. Such testimony will be received in evidence and you may consider it. You may give such testimony whatever weight you think it deserves. Whether or not a witness’s testimony may have been influenced by the witness’s 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.


INSTRUCTION NO. 8 - NOTE-TAKING

 

 

        If you want to take notes during the trial, you may, but be sure that your note-taking does not interfere with listening to and considering all the evidence. If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence.

        Notes you take during the trial are not necessarily more reliable than your memory or another juror’s memory. Therefore, you should not be overly influenced by the notes.

         If you take notes, do not discuss them with anyone before you begin your deliberations. At the end of each day, please leave your notes on your chair. At the end of the trial, you may take your notes out of the notebook and keep them, or leave them, and we will destroy them. No one will read the notes, either during or after the trial.

        You will notice that we 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. 9 - CONDUCT OF THE JURY

DURING TRIAL

 

 

        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. 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—on the Internet, in libraries, in the newspapers, or in any other way—or make any investigation about this case on your own. You must decide this case based on the evidence presented in court.

        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.

        I will reserve the remaining instructions until after the evidence has been presented and the prosecution and the defense have made their closing arguments to summarize and interpret the evidence for you. However, I remind you that closing arguments, like opening statements, are not evidence.


INSTRUCTION NO. 10 - DUTY TO DELIBERATE

 

        Now that you have heard the evidence and arguments of the prosecution and defense, it is time for you to retire to deliberate on your verdict. However, before you do so, I must give you some instructions on deliberations.

        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 he should have your vote for a not guilty verdict on that offense. If all of you reach the same conclusion, then the verdict of the jury must be not guilty for the defendant on that 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 that charge, and if all of you reach that conclusion, then the verdict of the jury must be guilty for the defendant on that charge. As I instructed you earlier, the burden is upon the prosecution to prove beyond a reasonable doubt every essential element of a crime charged against the defendant.

        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. 11 - 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 the defendant is guilty, the sentence to be imposed is my responsibility. You may not consider punishment of Tanner McLean 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, I am giving you the verdict form. A verdict form is simply the written notice of the decision that you reach in this case. Your verdict must be unanimous. You will take the verdict form to the jury room. When you have reached a unanimous verdict, your foreperson must complete one copy of the verdict form and all of you must sign that copy to record your individual agreement with the verdict and to show that it is unanimous. The foreperson must bring the signed verdict form to the courtroom when it is time to announce your verdict. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

        DATED this 2nd day of August, 2004.

 

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                                                    ____________________________________

                                                    MARK W. BENNETT

                                                    CHIEF JUDGE, U. S. DISTRICT COURT

                                                    NORTHERN DISTRICT OF IOWA


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION


UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 04-3021-MWB

vs.


VERDICT FORM

TANNER McLEAN,

Defendant.

____________________



        On the charge of being a “felon in possession of a firearm,” as charged in the Indictment and explained in Instruction No. 7, we, the Jury, unanimously find defendant Tanner McLean

 

                 _____ Not Guilty                           _____ Guilty

 

 

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