IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 02-4068-MWB

vs.

COURT'S REVISED PROPOSED

INSTRUCTIONS

TO THE JURY

DAVID HIRSCH,
Defendant.






TABLE OF CONTENTS

INSTRUCTIONS 1

NO. 1 - INTRODUCTION 1

NO. 2 - PERJURY 3

NO. 3 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF 6

NO. 4 - REASONABLE DOUBT 7

NO. 5 - DEFINITION OF EVIDENCE 8

NO. 6 - CREDIBILITY AND IMPEACHMENT 9

NO. 7 - NOTE-TAKING 12

NO. 8 - CONDUCT OF THE JURY DURING TRIAL 13

NO. 9 - DUTY TO DELIBERATE 15

NO. 10 - DUTY DURING DELIBERATIONS 17



VERDICT FORM



INSTRUCTION NO. 1 - INTRODUCTION



Members of the jury, consider these instructions, together with any oral instructions that I may give 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.

As I explained during jury selection, in an indictment, a Grand Jury charges that, on or about March 29, 2002, defendant Hirsch committed perjury in a jury trial in which he had been charged with certain firearm offenses. As I also explained during jury selection, an indictment is simply an accusation. It is not evidence of anything. The defendant has pleaded 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 David Hirsch, 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 - PERJURY





The perjury 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. For you to find the defendant guilty of the perjury offense charged in the indictment, the government must prove the following four essential elements beyond a reasonable doubt:

One, on or about March 29, 2002, the defendant testified under oath before the United States District Court for the Northern District of Iowa, in his criminal trial, as follows:

A. Question: With regard to the GMC Jimmy, had that vehicle been at the Vorland property long?

Answer: Approximately two months.

Question: Why is that?

Answer: The--it didn't run. The engine starter was out of it.



B. Question: So what was your truck doing on the Vorland property all this time?

Answer: I needed a place to store it and--because it didn't run.

Question: Okay. So your testimony is you took it out there and dropped it off and it stayed there until we found it on May 18?

Answer: That's correct.

Question: Okay. And it was parked there the whole time and wouldn't move?

Answer: Yes, that's correct.



C. Question: During--let me back up. You parked your vehicle you said about two months before the search?

Answer: Approximately, yes.

Question: Okay. And so this would have been--May 18, would have been, what, March 18 roughly?

Answer: Roughly in that time frame, yes.



D. Question: Okay. The Blazer you hadn't left like the other vehicle there for a long time?

Answer: No, the other vehicle--the Blazer was my daily runner. It was just I needed repairs on it. The GMC was there because it didn't run. I didn't really have the time or the money to fix it until--I planned on fixing it with that $295 but. . . .



The indictment charges that these allegedly false statements were made "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.



Two, such testimony was false in whole or in part.

The indictment charges that the defendant made more than one false statement, as indicated by the letters A, B, C, and D, above, in the explanation to element one. You need not find that all of the statements alleged to be false in the indictment are false to find that this element has been proved. Instead, for you to find that this element has been proved, you must find, unanimously and beyond a reasonable doubt, that at least one of the statements set out in the indictment is false.

In reviewing the statements that are alleged to be false in the indictment, you should consider those statements in the context of the series of questions asked and the answers given. The words used should be given their common and ordinary meaning unless the context clearly shows that a different meaning was mutually understood by the questioner and the witness.

If you find that a particular question was ambiguous or capable of being understood in two different ways, and that the defendant truthfully answered one reasonable interpretation of the question under the circumstances presented, then you cannot find that the defendant's answer was false. Similarly, if you find that the question was clear, but that the defendant's answer was ambiguous, and you also find that one reasonable interpretation of the answer would be truthful, then you cannot find that the defendant's answer was false.

Finally, if a statement alleged to be false is literally true, you must find the defendant not guilty of perjury, even if the statement was intended to be misleading.



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

The defendant's "knowledge" must be proved beyond a reasonable doubt. "Knowledge" may be proved like anything else. 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.



Four, the false testimony was material.

False testimony is "material" if the testimony was capable of influencing the jury on the issue before it.



For you to find the defendant guilty of perjury, as charged in the indictment, the prosecution must prove all of these essential elements beyond a reasonable doubt. Otherwise, you must find him not guilty of the perjury offense charged in the indictment.

INSTRUCTION NO. 3 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF





Defendant David Hirsch 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. 4 - REASONABLE DOUBT



I have previously instructed you that the prosecution must prove the charge against the defendant "beyond a reasonable doubt." A reasonable doubt may arise from the evidence produced by either the prosecution or the defendant, keeping in mind that the 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. 5 - 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.

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 determined by the number of witnesses testifying as to the existence or non-existence of any fact. Also, the weight of the evidence should not be determined merely by the number or volume of documents or exhibits. The weight of evidence depends on its quality, not quantity. The quality and weight of the evidence are for you to decide.

INSTRUCTION NO. 6 - 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.

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

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

Similarly, you may hear evidence that certain witnesses have pleaded guilty to a charge that arose out of the same events for which the defendant is now on trial. You cannot consider such a witness's guilty plea as any evidence of the guilt of the defendant. Rather, you can consider such a witness's guilty plea only for the purpose of determining how much, if at all, to rely upon that witness's testimony.

You should treat the testimony of certain witnesses with greater caution and care than that of other witnesses. Specifically, you may hear testimony from certain witnesses that they participated in the crime charged against the defendant. If their testimony is received in evidence, 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.

INSTRUCTION NO. 7 - 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. 8 - 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. 9 - 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 a particular defendant's guilt beyond a reasonable doubt on the offense charged against him, 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 the 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 the crime charged against each 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. 10 - 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 David Hirsch 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 20th day of January, 2003.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



UNITED STATES OF AMERICA,
Plaintiff,

No. CR 02-4068-MWB

vs.

COURT'S REVISED PROPOSED

VERDICT FORM

(01/17/03 VERSION)

DAVID HIRSCH,
Defendant.

____________________



We, the Jury, unanimously find as follows:

PERJURY VERDICT
Step 1: On the charge of perjury, as charged in the indictment and explained in Instruction No. 2, please mark your verdict. _____ Not guilty

_____ Guilty

Step 2: If you have found the defendant guilty, which one or more of the following statements do you find, unanimously and beyond a reasonable doubt, was false?
_____ Statement A in the explanation to element one
_____ Statement B in the explanation to element one
_____ Statement C in the explanation to element one
_____ Statement D in the explanation to element one





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