IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 00-4022-MWB

vs.

PRELIMINARY AND

FINAL INSTRUCTIONS

TO THE JURY

ALFREDO LUNA,
Defendant.






TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - STATEMENT OF THE CASE 2

NO. 3 - ELEMENTS OF THE OFFENSES 4

NO. 4 - OUTLINE OF TRIAL 7

NO. 5 - PRESUMPTION OF INNOCENCE 8

NO. 6 - REASONABLE DOUBT 9

NO. 7 - DEFINITION OF EVIDENCE 10

NO. 8 - CREDIBILITY OF WITNESSES 12

NO. 9 - BENCH CONFERENCES AND RECESSES 14

NO. 10 - OBJECTIONS 15

NO. 11 - NOTE-TAKING 16

NO. 12 - CONDUCT OF THE JURY 17

FINAL INSTRUCTIONS 19

NO. 1 - INTRODUCTION 19

NO. 2 - DUTY OF JURORS 20

NO. 3 - NATURE OF AN INDICTMENT 21

NO. 4 - COUNT I: CONSPIRACY 22

NO. 5 - ACTS AND STATEMENTS OF CO-CONSPIRATORS 26

NO. 6 - QUANTITY OF CONTROLLED SUBSTANCES 27

NO. 7 - COUNT II: USING OR CARRYING A FIREARM 29

NO. 8 - IMPEACHMENT 31

NO. 9 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF 33

NO. 10 - REASONABLE DOUBT 34

NO. 11 - DUTY TO DELIBERATE 35

NO. 12 - DUTY DURING DELIBERATIONS 37



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 Alfredo Luna. In an indictment, the United States charges Mr. Luna with two offenses. In Count I, the United States charges that, between about 1996 and continuing through December 1999, Mr. Luna conspired to distribute one thousand (1,000) grams or more of a mixture or substance containing a detectable amount of methamphetamine and to distribute five hundred (500) grams or more of a mixture or substance containing a detectable amount of cocaine. In Count II, the United States charges that, in about the summer of 1998, Mr. Luna knowingly used and carried a firearm or firearms, specifically, a 9mm semi-automatic pistol with a laser sight and an AR 15 assault rifle, during and in relation to a drug-trafficking crime, which is identified in the indictment as conspiracy to distribute methamphetamine and cocaine.

These charges are 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 crimes charged against him; therefore, he is presumed to be innocent unless and until the prosecution proves his guilt beyond a reasonable doubt on an offense charged against him.

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

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

Please remember that only defendant Alfredo Luna, not anyone else, is on trial here, and that this defendant is on trial only for the crimes charged against him, not for anything else.

Finally, keep in mind that the indictment charges Mr. Luna with two separate offenses. Therefore, you must consider separately each count against Mr. Luna and return a separate verdict on each count.

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF THE OFFENSES



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



Count I: Conspiracy To Commit Drug Offenses

In Count I of the indictment, the United States charges that, between about 1996 and continuing through December 1999, Mr. Luna knowingly conspired with other persons to commit two separate drug offenses: (1) distribution of one thousand (1,000) grams or more of a mixture or substance containing a detectable amount of methamphetamine; and (2) distribution of five hundred (500) grams or more of a mixture or substance containing a detectable amount of cocaine. The crime of conspiracy, as charged in the indictment, has three essential elements, which are the following:

One, between about 1996 and continuing through December 1999, two or more persons reached an agreement or came to an understanding to distribute cocaine or methamphetamine or both;

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

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

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

To assist you in determining whether there was an agreement to distribute one or more controlled substances, you should consider the elements of the offense of distribution of a controlled substance, which are the following: One, a person intentionally distributed a controlled substance to another; and two, at the time of the distribution, the person knew that what the person was distributing was a controlled substance. Keep in mind that the indictment charges the defendant with conspiracy to distribute one or more controlled substances, not that the crime of distribution of a controlled substance was actually committed.



Count II: Using and carrying a firearm during and in relation to a drug-trafficking crime



In Count II of the indictment, the United States charges that, in about the summer of 1998, the defendant knowingly used and carried a firearm or firearms, specifically, a 9mm semi-automatic pistol with a laser sight and an AR 15 assault rifle, during and in relation to a drug-trafficking crime, which is identified in the indictment as conspiracy to distribute methamphetamine and cocaine. The crime of using or carrying a firearm during and in relation to a drug-trafficking crime has two essential elements, which are the following:

One, the defendant committed the drug-trafficking crime identified in the indictment; and

Two, during and in relation to the commission of that crime, the defendant knowingly used or carried a firearm.



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

PRELIMINARY INSTRUCTION NO. 4 - OUTLINE OF TRIAL



The trial will proceed as follows:

After these preliminary instructions, the prosecutor may make an opening statement. Next, the lawyer for 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 most of the final instructions. The lawyers will then make their closing arguments to summarize and interpret the evidence for you. As with opening statements, closing arguments are not evidence. I will then give you the remaining final instructions on deliberations, and you will retire to deliberate on your verdict.

PRELIMINARY INSTRUCTION NO. 5 - PRESUMPTION OF INNOCENCE



The 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. Luna 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 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. 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 an offense charged in the indictment against him, you must find the defendant not guilty of that offense. Keep in mind that you must give separate consideration to the evidence about each offense charged. You must treat each count separately and must return a separate verdict on each count.

PRELIMINARY INSTRUCTION NO. 6 - REASONABLE DOUBT



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



PRELIMINARY INSTRUCTION NO. 7 - DEFINITION OF EVIDENCE



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

Evidence is:

1. Testimony in person.

2. Exhibits I admit into evidence.

3. Stipulations, which are agreements between the parties.

4. Any other matter I admit into evidence.

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

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

The following are not evidence:

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

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

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

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

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

PRELIMINARY INSTRUCTION NO. 8 - CREDIBILITY OF WITNESSES



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

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

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

You may hear evidence from persons described as experts. Persons who, by knowledge, skill, training, education, or experience, have become expert in some field may state their opinions on matters in that field and may also state the reasons for their opinion. You should consider expert testimony just like any other testimony. You may accept or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the soundness of the reasons given for the opinion, and the acceptability of the methods used, and all of the other evidence in the case.

Finally, just because a witness works in law enforcement or is employed by the government does not mean you should give more weight or credence to such a witness's testimony than you give to any other witness's testimony.

PRELIMINARY INSTRUCTION NO. 9 - BENCH

CONFERENCES AND RECESSES



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



PRELIMINARY INSTRUCTION NO. 10 - OBJECTIONS



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





PRELIMINARY INSTRUCTION NO. 11 - NOTE-TAKING



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

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

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

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



PRELIMINARY INSTRUCTION NO. 12 - CONDUCT OF THE JURY



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

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

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

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

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

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

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

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

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

DATED this 6th day of November, 2000.





FINAL INSTRUCTION NO. 1 - INTRODUCTION



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

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

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

FINAL INSTRUCTION NO. 2 - DUTY OF JURORS



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

Please remember that only defendant Alfredo Luna, not anyone else, is on trial here, and that this defendant is on trial only for the crimes charged against him, not for anything else.

Also keep in mind that the indictment charges Mr. Luna with two separate offenses. Therefore, you must consider separately each count against Mr. Luna and return a separate verdict on each count.

FINAL INSTRUCTION NO. 3 - NATURE OF AN INDICTMENT



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

The indictment charges that the offenses were committed "between about" one date and "continuing through" another date, or " about" a certain 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.

In the indictment, the defendant is charged with more than one offense. Keep in mind that the prosecution does not have to prove both of the offenses against the defendant for you to find him guilty of an offense. Instead, you must consider separately each crime charged against the defendant and must return a separate verdict for each crime charged.

Your verdict on each charge must be unanimous.

FINAL INSTRUCTION NO. 4 - COUNT I: CONSPIRACY



In Count I of the indictment, the United States charges that, between about 1996 and continuing through December 1999, Mr. Luna knowingly conspired with other persons to commit two separate drug offenses: (1) distribution of one thousand (1,000) grams or more of a mixture or substance containing a detectable amount of methamphetamine; and (2) distribution of five hundred (500) grams or more of a mixture or substance containing a detectable amount of cocaine. The crime of conspiracy, as charged in the indictment, has three essential elements, which are the following:

One, between about 1996 and continuing through December 1999, two or more persons reached an agreement or came to an understanding to distribute cocaine or methamphetamine or both.

To assist you in determining whether there was an agreement to distribute methamphetamine, cocaine, or both, you should consider the elements of the offense of distribution of a controlled substance, which are the following: One, a person intentionally distributed a controlled substance to another; and two, at the time of the distribution, the person knew that what he or she was distributing was a controlled substance. Keep in mind that the indictment charges this defendant with conspiracy to distribute methamphetamine and cocaine, not that the crime of distribution of methamphetamine and cocaine was actually committed.

The term "distribute" means to deliver a controlled substance to the actual or constructive possession of another person. A person who knowingly has direct physical control over a thing, at a given time, is then in "actual possession" of it. A person who, although not in actual possession, has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons, is then in "constructive possession" of it. The term "deliver" means the actual, constructive, or attempted transfer of a controlled substance to the actual or constructive possession of another person. It is not necessary that money or anything of value change hands. The law prohibits the "distribution" of a controlled substance or an agreement to distribute a controlled substance; the prosecution does not have to prove that there was a "sale" of a controlled substance or an agreement to sell controlled substances.

The prosecution must prove that a defendant reached an agreement or understanding with at least one other person. It makes no difference whether that person is a defendant, or named in the indictment, or otherwise charged with a crime. There is no requirement that the other conspirators be named as long as you find beyond a reasonable doubt that there were other co-conspirators. The "agreement or understanding" need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme. In determining whether the alleged agreement existed, you may consider the actions and statements of all of the alleged participants, whether they are charged as defendants or not. The agreement may be inferred from all the circumstances and the conduct of the alleged participants.

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

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



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

A defendant may join in an agreement or understanding without knowing all the details of the agreement or understanding, and without knowing who all the other members are. Further, it is not necessary that the defendant agree to play any particular part in carrying out the agreement or understanding. The defendant may become a member of a conspiracy even if the defendant agrees to play only a minor part in the conspiracy, as long as the defendant has an understanding of the unlawful nature of the plan and voluntarily and intentionally joins in it.

However, you should understand that merely being present at the scene of an event, or merely acting in the same way as others or merely associating with others, does not prove that a person has joined in an agreement or understanding.

In determining whether the defendant became a member of the conspiracy, you may consider only the acts and statements of the defendant.



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

Again, it is not necessary that the members have directly stated between themselves the details or purpose of the scheme, as long as the defendant has an understanding of the unlawful nature of the plan. A person who has no knowledge of a conspiracy, but who happens to act in a way that advances some purpose of one, does not thereby become a member. Therefore, the defendant must know of the existence and purpose of the conspiracy. Without such knowledge, the defendant cannot be guilty even if his or her acts furthered the conspiracy.

"Knowledge" may be proved like anything else. You may consider the evidence of a defendant's words, acts, or omissions, along with all of the facts and circumstances in evidence that may aid in your determination of that defendant's "knowledge." 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.



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

FINAL INSTRUCTION NO. 5 - ACTS AND STATEMENTS OF

CO-CONSPIRATORS





If you find beyond a reasonable doubt that a conspiracy existed and that the defendant was one of its members, then you may consider acts knowingly done and statements knowingly made by the defendant's co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to the defendant, even though they were done or made in the absence of and without the knowledge of the defendant. This includes acts done or statements made before the defendant joined the conspiracy. However, acts and statements that were made before the conspiracy began or after it ended are admissible only against the person making them and should not be considered by you against any other person, including the defendant, even if he was a conspirator.

FINAL INSTRUCTION NO. 6 - QUANTITY OF CONTROLLED SUBSTANCES



If you find the defendant guilty of the conspiracy offense, as charged in Count I of the indictment and explained in Final Jury Instruction No. 4, you must determine beyond a reasonable doubt the quantity of the controlled substance or controlled substances involved in the offense for which the defendant can be held responsible.

The prosecution does not have to prove that an offense involved the amount or quantity of controlled substances charged in the indictment, although the prosecution must prove beyond a reasonable doubt the quantity of any controlled substances actually involved in the offense for which the defendant can be held responsible. You must ascertain whether or not the controlled substance in question was in fact methamphetamine, cocaine, or both, as specified in the indictment, and you must determine beyond a reasonable doubt the amount of the methamphetamine, cocaine, or both involved in the offense for which the defendant can be held responsible. In so doing, you may consider all of the evidence in the case that may aid in the determination of these issues.

A defendant guilty of conspiracy to distribute a controlled substance, as charged in Count I of the indictment, and explained in Final Jury Instruction No. 4, is responsible for quantities of controlled substances he distributed or agreed to distribute. Such a defendant is also responsible for those quantities fellow conspirators distributed or agreed to distribute if you find that the defendant could have reasonably foreseen, at the time he joined the conspiracy or while the conspiracy lasted, that those distributions were a necessary or natural consequence of the conspiracy.

You must determine the range within which the total quantity of a controlled substance for which the defendant can be held responsible falls. You must determine that total quantity in terms of grams of a mixture or substance containing a detectable amount of methamphetamine or cocaine.

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

FINAL INSTRUCTION NO. 7 - COUNT II: USING OR

CARRYING A FIREARM





In Count II of the indictment, the United States charges that, in about the summer of 1998, the defendant knowingly used and carried a firearm or firearms, specifically, a 9mm semi-automatic pistol with a laser sight and an AR 15 assault rifle, during and in relation to a drug-trafficking crime, which is identified in the indictment as conspiracy to distribute methamphetamine and cocaine. The crime of using or carrying a firearm during and in relation to a drug-trafficking crime has two essential elements, which are the following:

One, the defendant committed the drug-trafficking crime identified in the indictment.

In order to determine whether the crime of conspiracy has been established, you should refer to Final Jury Instruction No. 4.



Two, during and in relation to the commission of that crime, the defendant knowingly used or carried a firearm.

An act is done "knowingly" if the defendant is aware of the act and does not act through ignorance, mistake, or accident. In deciding whether an act is done "knowingly," 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 you in determining the defendant's knowledge.

In order to establish this element, the prosecution does not have to prove that the firearm was both "used" and "carried." Rather, it is sufficient if the prosecution proves that the defendant either "used" or "carried" the firearm.

The term "used a firearm" means that the firearm was actively employed in the course of the commission of a drug conspiracy. You may find that a firearm was "used" during the commission of the crime in question here if you find that it was brandished, displayed, used to strike someone, used to threaten someone, aimed at someone's body, fired, attempted to be fired, or the defendant made references to a firearm that was in his possession.

The term "carried a firearm" means that, during the commission of the crime, the defendant had a firearm on or about his person or transported a firearm in the passenger compartment of a car.

The firearm was used or carried "in relation to" an offense if it had some purpose or effect with respect to a drug conspiracy; in other words, it was used or carried in a way that effectuated the crime. However, the firearm need not have a role as a weapon in the crime.

The indictment charges that the defendant used or carried two firearms during and in relation to the drug conspiracy alleged in Count I: a 9mm semi-automatic pistol with a laser sight and an AR 15 assault rifle. It is not necessary for the government to prove that the defendant used or carried both of these firearms. It would be sufficient if the government proves, beyond a reasonable doubt, that the defendant used or carried one of these firearms during and in relation to the drug conspiracy; however, in order to return a verdict of guilty, you must unanimously agree upon which one or more of these firearms was or were used or carried during and in relation to the conspiracy. If you cannot agree in that manner, you must find the defendant not guilty of this firearm offense.



For you to find Alfredo Luna guilty of the crime of using or carrying a firearm, as charged in Count II of the indictment, the Government must prove both of the essential elements of this offense beyond a reasonable doubt as to this defendant; otherwise, you must find him not guilty of the crime of using or carrying a firearm, as charged in Count II of the indictment.

FINAL INSTRUCTION NO. 8 - IMPEACHMENT





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

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

You have heard evidence that the following witnesses have been convicted of one or more crimes: Scott Windles, Matthew Miller, John DeHaan, Luis Chavez, Evan Davila, Shelly Finley, and Juan Carlos Vazquez Munoz. You may use that evidence only to help you decide whether or not to believe these witnesses and how much weight to give their testimony.

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

You should treat the testimony of certain witnesses with greater caution and care than that of other witnesses: You have heard evidence that Scott Windles, Matthew Miller, John DeHaan, Luis Chavez, and Evan Davila are testifying pursuant to plea agreements and hope to receive reductions in their sentences in return for their cooperation with the prosecution in this case. If the prosecutor handling this 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.

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

FINAL INSTRUCTION NO. 9 - 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. Luna, 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 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. 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 an offense charged in the indictment against him, you must find him not guilty of that offense. Once again, the indictment charges Mr. Luna with two separate offenses. Therefore, you must consider separately each count against Mr. Luna and return a separate verdict on each count.

FINAL INSTRUCTION NO. 10 - REASONABLE DOUBT



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

FINAL INSTRUCTION NO. 11 - 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 an offense charged against him, then the 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 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 an 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.

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. 12 - 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. Luna 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 13th day of November, 2000.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION



UNITED STATES OF AMERICA,
Plaintiff,

No. CR 00-4022-MWB

vs.



VERDICT FORM

ALFREDO LUNA,
Defendant.

____________________



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

COUNT DESCRIPTION VERDICT
Count 1: Conspiracy to distribute controlled substances, as explained in Final Jury Instruction No. 4 _____ Not Guilty

_____ Guilty

If you have found defendant Alfredo Luna guilty of this offense, which controlled substance or controlled substances do you find the defendant agreed to distribute? (Please mark either "methamphetamine," "cocaine," or both, then determine the quantity of the controlled substance(s) you have marked that was involved in the conspiracy for which the defendant can be held responsible.)
Methamphetamine _____
What is the quantity of methamphetamine involved in the conspiracy for which you find beyond a reasonable doubt that the defendant can be held responsible, as determination of quantity of controlled substances is explained in Final Jury Instruction No. 6? (Please make your determination of the range within which the total quantity of methamphetamine for which this defendant can be held responsible falls and indicate that total quantity in terms of grams of a mixture or substance containing a detectable amount of methamphetamine.)
1000 grams or more of a mixture or substance containing a detectable amount of methamphetamine



_____
500 to 999 grams of a mixture or substance containing a detectable amount of methamphetamine

_____
50 to 499 grams of a mixture or substance containing a detectable amount of methamphetamine

_____
Less than 50 grams of a mixture or substance containing a detectable amount of methamphetamine

_____
Cocaine _____
What is the quantity of cocaine involved in the conspiracy for which you find beyond a reasonable doubt that the defendant can be held responsible, as determination of quantity of controlled substances is explained in Final Jury Instruction No. 6? (Please make your determination of the range within which the total quantity of cocaine for which this defendant can be held responsible falls and indicate that total quantity in terms of grams of a mixture or substance containing a detectable amount of cocaine.)
500 grams or more of a mixture or substance containing a detectable amount of cocaine

_____
Less than 500 grams of a mixture or substance containing a detectable amount of cocaine

_____
Count II: Using or carrying a firearm during and in relation to a drug-trafficking offense, as explained in Final Jury Instruction No. 7 _____ Not Guilty

_____ Guilty

If you have found defendant Alfredo Luna guilty of this offense, which firearm or firearms do you find he used or carried during and in relation to the drug-trafficking offense? (Please mark either or both firearms.)
a 9mm semi-automatic pistol with a laser sight _____
an AR 15 assault rifle _____







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