IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 02-3026-MWB

vs.



PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

ANTHONY SMITH,
Defendant.

____________________





TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - DUTY OF JURORS 2

NO. 3 - REQUIREMENTS FOR PROOF 3

NO. 4 - PRESUMPTION OF INNOCENCE 7

NO. 5 - REASONABLE DOUBT 8

NO. 6 - OUTLINE OF TRIAL 9

NO. 7 - DEFINITION OF EVIDENCE 10

NO. 8 - CREDIBILITY OF WITNESSES 11

NO. 9 - BENCH CONFERENCES AND RECESSES 13

NO. 10 - OBJECTIONS 14

NO. 11 - NOTE-TAKING 15

NO. 12 - CONDUCT OF THE JURY 16

FINAL INSTRUCTIONS 18

NO. 1 - INTRODUCTION 18

NO. 2 - "INTENT" AND "KNOWLEDGE" 19

NO. 3 - COUNT 1: MANUFACTURING 20

NO. 4 - QUANTITY OF METHAMPHETAMINE 23

NO. 5 - COUNT 2: FELON IN POSSESSION OF A FIREARM AND

AMMUNITION 24

NO. 6 - IMPEACHMENT 26

NO. 7 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF 28

NO. 8 - REASONABLE DOUBT 29

NO. 9 - DUTY TO DELIBERATE 30

NO. 10 - DUTY DURING DELIBERATIONS 32





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 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.

PRELIMINARY 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 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 Anthony Smith, not anyone else, is on trial here. Also, remember that this defendant is on trial only for the crimes charged against him, not for anything else.

Finally, keep in mind that the defendant is entitled to have each charge against him considered separately. Therefore, you must return a separate, unanimous verdict on each charge.

PRELIMINARY INSTRUCTION NO. 3 - REQUIREMENTS FOR PROOF



To help you follow the evidence, I will give you a summary of the requirements for proof of each of the offenses charged in the indictment.



PRELIMINARY MATTERS

Each 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 below the elements of the separate offenses with which Mr. Smith is charged.

However, I must first explain that the indictment alleges that the offenses were committed "on or about" certain dates. 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 these instructions, when I refer to a "controlled substance," I mean any drug or narcotic the manufacture, possession, possession with intent to distribute, or distribution of which is prohibited or regulated by federal law. Methamphetamine is a "controlled substance."

I will now give you more specific instructions about the offenses charged in the indictment.



COUNT 1: MANUFACTURING METHAMPHETAMINE

Count 1 of the indictment charges that, on or about June 6, 2002, Mr. Smith knowingly and intentionally manufactured or attempted to manufacture five grams or more of actual (pure) methamphetamine. A defendant may be found guilty of the "manufacturing" offense charged in Count 1 of the indictment under either or both of the following alternatives: (1) personally committing the offense, and/or (2) personally attempting to commit the offense. I will explain the elements of each of these alternatives in turn.

First alternative: Personally manufacturing methamphetamine

For you to find the defendant guilty of manufacturing pure methamphetamine under this "personal commission" alternative, the prosecution must prove each of the following essential elements beyond a reasonable doubt:

One, on or about June 6, 2002, the defendant manufactured pure methamphetamine; and

Two, the defendant knew that he was, or intended to be, manufacturing a controlled substance.

Second alternative: Attempting to manufacture methamphetamine

The defendant may also be found guilty of manufacturing methamphetamine, even if he only attempts, but does not succeed, in manufacturing methamphetamine. For you to find the defendant guilty of the manufacturing offense under this "attempt" alternative, the prosecution must prove the following essential elements beyond a reasonable doubt:

One, the defendant intended to manufacture a controlled substance;

Two, the defendant knew that the material he intended to manufacture was a controlled substance; and

Three, on or about June 6, 2002, the defendant voluntarily and intentionally carried out some act that was a substantial step toward manufacturing pure methamphetamine.

For purposes of this alternative, "a substantial step" must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the crime of manufacturing pure methamphetamine. In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation or completion of the crime and be of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to manufacture a controlled substance. Crimes such as attempt to manufacture methamphetamine require a defendant to engage in numerous preliminary steps that brand the enterprise as criminal. However, evidence that the defendant ordered, received, or possessed the specific chemicals and equipment necessary to manufacture methamphetamine is sufficient to support a finding that the defendant took "a substantial step" toward manufacturing a controlled substance.

Quantity of methamphetamine

In the indictment, the Grand Jury charges that the defendant manufactured or attempted to manufacture "5 grams or more of actual (pure) methamphetamine." The prosecution does not have to prove that the manufacturing offense involved the amount or quantity of methamphetamine charged in the indictment. However, if you find the defendant guilty of the manufacturing offense, under either a "personal commission" or "attempt" alternative, then you must determine the total quantity, in grams, of the methamphetamine involved in the offense for which the defendant can be held responsible. In making your determination of quantity as required, it may be helpful to remember that one pound is approximately equal to 453.6 grams, and that one ounce is approximately equal to 28.35 grams.



COUNT 2: FELON IN POSSESSION OF A FIREARM AND AMMUNITION

Count 2 of the indictment charges that, on or about April 17, 2002, after having been convicted of a felony offense, Mr. Smith knowingly possessed a firearm and ammunition. For you to find Mr. Smith guilty of this offense, the prosecution must prove each of the following three elements beyond a reasonable doubt:

One, on or about April 17, 2002, the defendant knowingly possessed a firearm or ammunition identified in the indictment;

Two, at some time prior to April 17, 2002, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year; and

Three, at some time during or before the defendant received or possessed the firearm or ammunition, the firearm or ammunition was transported across a state line.

Firearms and ammunition

The Grand Jury charges that Mr. Smith unlawfully possessed the following firearm and ammunition: one Jennings .380 caliber pistol, with serial number removed, nine Winchester .38 caliber bullets, and two Remington .380 caliber bullets. The prosecution does not have to prove that Mr. Smith possessed all of the items alleged in this count of the indictment. The prosecution must only prove that Mr. Smith possessed the firearm or one or more rounds of the ammunition alleged. However, you must unanimously agree on which firearm, ammunition, or combination of the firearm and ammunition Mr. Smith possessed.



This is only a preliminary outline of the requirements for proof of the offenses charged in the indictment. At the end of the trial, I will give you final written instructions on these matters. Because they are more detailed, those final instructions govern on the requirements for proof of the offenses charged.

PRELIMINARY INSTRUCTION NO. 4 - PRESUMPTION OF INNOCENCE



The charges against the defendant are set out in an indictment. As was explained to you during jury selection, an indictment is simply an accusation. It is not evidence of anything. Defendant Anthony Smith has pleaded not guilty to the charges brought against him; therefore, he is presumed to be innocent. 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, all of the elements 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.

PRELIMINARY INSTRUCTION NO. 5 - REASONABLE DOUBT



A reasonable doubt may arise from the evidence produced by either of the parties, 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.



PRELIMINARY INSTRUCTION NO. 6 - 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. 7 - DEFINITION OF EVIDENCE



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.

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 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.

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.

PRELIMINARY INSTRUCTION NO. 11 - 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.

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. 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.

DATED this 18th day of February, 2003.



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.

FINAL INSTRUCTION NO. 2 - "INTENT" AND "KNOWLEDGE"



"Intent" and "knowledge" are elements of the offenses charged in this case, and, therefore, must be proved beyond a reasonable doubt. "Intent" and "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.

FINAL INSTRUCTION NO. 3 - COUNT 1: MANUFACTURING





Count 1 of the indictment charges that, on or about June 6, 2002, Mr. Smith knowingly and intentionally manufactured or attempted to manufacture five grams or more of actual (pure) methamphetamine. A defendant may be found guilty of the "manufacturing" offense charged in Count 1 of the indictment under either or both of the following alternatives: (1) personally committing the offense, and/or (2) personally attempting to commit the offense. I will explain the elements of each of these alternatives in turn.

First alternative: Personally manufacturing methamphetamine

For you to find the defendant guilty of manufacturing pure methamphetamine under this "personal commission" alternative, the prosecution must prove each of the following essential elements beyond a reasonable doubt:

One, on or about June 6, 2002, the defendant manufactured pure methamphetamine; and

Two, the defendant knew that he was, or intended to be, manufacturing a controlled substance.

The defendant need not know what the controlled substance is if the defendant knows that he is, or intends to be, manufacturing some controlled substance. Intent to manufacture a controlled substance can be inferred from evidence that the defendant possessed or purchased all or most of the precursor chemicals or ingredients of that controlled substance; possessed equipment necessary to manufacture that controlled substance; and/or possessed, had knowledge of, asked questions of others about, or had learned from others a "recipe" or "formula" for that controlled substance or the process for manufacturing that controlled substance. No single piece of evidence necessarily establishes intent to manufacture a controlled substance; rather, the totality of the circumstances must corroborate the defendant's intent to manufacture a controlled substance sufficiently for you to find such intent beyond a reasonable doubt.



For you to find the defendant guilty of the "manufacturing" offense charged in Count 1 of the indictment under this "personal commission" alternative, the prosecution must prove both of these essential elements beyond a reasonable doubt. Otherwise, you must find the defendant not guilty of personally committing the manufacture of methamphetamine.



Second alternative: Attempting to manufacture methamphetamine

The defendant may also be found guilty of manufacturing methamphetamine, as charged in Count 1 of the indictment, even if he only attempts, but does not succeed, in manufacturing methamphetamine. For you to find the defendant guilty of the manufacturing offense under this "attempt" alternative, the prosecution must prove the following essential elements beyond a reasonable doubt:

One, the defendant intended to manufacture a controlled substance.

"Intent to manufacture a controlled substance" was explained to you in reference to element two of the "personal commission" alternative, above.



Two, the defendant knew that the material he intended to manufacture was a controlled substance.

The defendant need not know what the controlled substance is if the defendant knows that he is, or intends to be, manufacturing some controlled substance.



Three, on or about June 6, 2002, the defendant voluntarily and intentionally carried out some act that was a substantial step toward manufacturing pure methamphetamine.

"A substantial step" must be something more than mere preparation, yet may be less than the last act necessary before the actual commission of the crime of manufacturing pure methamphetamine. In order for behavior to be punishable as an attempt, it need not be incompatible with innocence, yet it must be necessary to the consummation or completion of the crime and be of such a nature that a reasonable observer, viewing it in context, could conclude beyond a reasonable doubt that it was undertaken in accordance with a design to manufacture a controlled substance. Crimes such as attempt to manufacture methamphetamine require a defendant to engage in numerous preliminary steps that brand the enterprise as criminal. However, evidence that the defendant ordered, received, or possessed the specific chemicals and equipment necessary to manufacture methamphetamine is sufficient to support a finding that the defendant took "a substantial step" toward manufacturing a controlled substance.



For you to find the defendant guilty of the "manufacturing" offense charged in Count 1 of the indictment under this "attempt" alternative, the prosecution must prove all three of these essential elements beyond a reasonable doubt. Otherwise, you must find the defendant not guilty of attempting to manufacture methamphetamine.



In addition, if you find the defendant guilty of the "manufacturing" offense, under either or both of the alternatives explained above, you must also determine beyond a reasonable doubt the quantity of methamphetamine involved in the "manufacturing" offense for which the defendant can be held responsible, as quantity of methamphetamine is explained in Final Jury Instruction No. 4.

FINAL INSTRUCTION NO. 4 - QUANTITY OF METHAMPHETAMINE







In the indictment, the Grand Jury charges that the defendant manufactured or attempted to manufacture "5 grams or more of actual (pure) methamphetamine." The prosecution does not have to prove that the manufacturing offense involved the amount or quantity of methamphetamine charged in the indictment. However, if you find the defendant guilty of the manufacturing offense, under either a "personal commission" or "attempt" alternative, then you must determine the total quantity, in grams, of the methamphetamine involved in the offense for which the defendant can be held responsible.

Therefore, you must determine, beyond a reasonable doubt, (i) whether or not the controlled substance involved in the offense was in fact methamphetamine, as charged in the indictment, and if it was, (ii) the amount of the methamphetamine involved in the offense for which the defendant, if he is guilty of that offense, 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 manufacturing pure methamphetamine, as charged in Count 1 of the indictment, under one or more of the alternatives explained in Final Jury Instruction No. 3, is responsible for the pure methamphetamine that he personally manufactured or attempted to manufacture.

You must determine quantity of methamphetamine in terms of quantity of actual (pure) methamphetamine. You must determine the total quantity, in grams, of methamphetamine involved in the offense for which the defendant can be held responsible, then indicate in the Verdict Form the range within which that total quantity falls, either five grams or more of pure methamphetamine, or less than five grams of pure methamphetamine.

FINAL INSTRUCTION NO. 5 - COUNT 2: FELON IN

POSSESSION OF A FIREARM AND AMMUNITION





Count 2 of the indictment charges that, on or about April 17, 2002, after having been convicted of a felony offense, Mr. Smith knowingly possessed a firearm and ammunition. For you to find Mr. Smith guilty of this offense, the prosecution must prove each of the following three elements beyond a reasonable doubt:

One, on or about April 17, 2002, the defendant knowingly possessed a firearm or ammunition identified in the indictment.

"Knowledge" was defined for you in Final Jury Instruction No. 2. The law recognizes several kinds of "possession." 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. If one person alone has actual or constructive possession of a thing, possession is "sole." If two or more persons share actual or constructive possession of a thing, possession is "joint." Whenever the word "possession" has been used in this instruction, it includes "actual" as well as "constructive" possession and also "sole" as well as "joint" possession.

In addition, mere presence where a thing was found or mere physical proximity to the thing is insufficient to establish "possession" of that thing. Knowledge of the presence of the thing, at the same time one has control over the thing or the place in which it was found, is required. Thus, in order to establish "possession" of a thing, in addition to knowledge of the presence of the thing, the prosecution must establish that, at the same time, (a) the person intended to exercise control over the thing or place in which it was found; (b) the person had the power to exercise control over the thing or place in which it was found; and (c) the person knew that he had the power to exercise control over the thing or place in which it was found.

The Grand Jury charges that Mr. Smith unlawfully possessed the following firearm and ammunition: one Jennings .380 caliber pistol, with serial number removed, nine Winchester .38 caliber bullets, and two Remington .380 caliber bullets. The prosecution does not have to prove that Mr. Smith possessed all of the items alleged in this count of the indictment. The prosecution must only prove that Mr. Smith possessed the firearm or one or more rounds of the ammunition alleged. However, you must unanimously agree on which firearm, ammunition, or combination of the firearm and ammunition Mr. Smith possessed.



Two, at some time prior to April 17, 2002, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year.

You are instructed that, prior to April 17, 2002, defendant Anthony Smith had one or more convictions for crimes punishable by imprisonment for a term exceeding one year within the meaning of the statute defining this offense.



Three, at some time during or before the defendant received or possessed the firearm or ammunition, the firearm or ammunition was transported across a state line.

The prosecution and the defendant have stipulated, that is, they have agreed, that the firearm and ammunition in question were transported across a state line at some time before the defendant possessed any of them, if he did indeed possess any of them. Therefore, you must consider this element to be proved.



For you to find the defendant guilty of this "felon in possession of a firearm and ammunition" offense, as charged in Count 2 of the indictment, the prosecution must prove all three of these essential elements beyond a reasonable doubt. Otherwise, you must find the defendant not guilty of the offense charged in Count 2.

FINAL INSTRUCTION NO. 6 - 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 witness Michael Littlefield has been convicted of a crime. You may use that evidence only to help you decide whether or not to believe this witness and how much weight to give his testimony.

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

1. You have also heard testimony from Dawn Hartkopp and Lindsey Thomas that they may have participated in the crime charged against the defendant. Their testimony was received in evidence and 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 her desire to please the government or to strike a good bargain with the government about her own situation is for you to determine.

2. You have also heard evidence that David Thompson is testifying in the hope that the government will not file charges against him. His testimony was received in evidence and you may consider it. You may give his testimony such weight as you think it deserves. Whether or not his testimony may have been influenced by his hope that the government will not file charges against him is for you to determine.

3. You have heard evidence that Lindsey Thomas is testifying pursuant to a "use immunity" agreement, which is a promise from the Government that her testimony will not be used against her in a criminal case. Her testimony was received in evidence and you may considered it. You may give her testimony such weight as you think it deserves. Whether or not her testimony may have been influenced by the "use immunity" agreement is for you to determine.

4. You have heard evidence that Michael Littlefield has pleaded guilty to unrelated charges, but may have testified in the hope that doing so will benefit him in his own circumstances. His testimony was received in evidence and you may consider it. You may give the testimony of this witness such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by the hope of receiving some benefit or assistance from the government with his own circumstances 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. 7 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF





Anthony Smith 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 Anthony Smith throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to defendant Smith only if the prosecution proves, beyond a reasonable doubt, each element of a crime charged against him.

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to the defendant, for the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence. 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 element of an offense charged in the indictment against him, you must find him not guilty of that offense.

FINAL INSTRUCTION NO. 8 - REASONABLE DOUBT



A reasonable doubt may arise from the evidence produced by either of the parties, 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.

FINAL INSTRUCTION NO. 9 - 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.

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.

FINAL 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 the defendant is guilty, the sentence to be imposed is my responsibility. You may not consider punishment of Anthony Smith 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 19th day of February, 2003.





IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 02-3026-MWB

vs.



VERDICT FORM

ANTHONY SMITH,
Defendant.

____________________





We, the Jury, unanimously find defendant Anthony Smith not guilty or guilty as follows:

COUNT 1: MANUFACTURING METHAMPHETAMINE VERDICT
Step 1:

Verdict

On the charge of "manufacturing methamphetamine," as explained in Final Jury Instruction No. 3, please mark your verdict. ____ Not Guilty

____ Guilty

Step 2:

Alternative(s)

If you have found defendant Anthony Smith guilty of this offense, please indicate on which alternative or alternatives you find him guilty.
_____ Personal commission

_____ Attempted commission
Step 3:

Quantity of Methamphet-amine

If you have found defendant Anthony Smith guilty of this offense, please indicate the quantity of pure methamphetamine involved in this offense for which you find beyond a reasonable doubt that this defendant can be held responsible. (Determination of drug quantity is explained in Final Jury Instruction No. 4.)
_____ 5 grams or more of actual (pure) methamphetamine
_____ Less than 5 grams of actual (pure) methamphetamine
COUNT 2: FELON IN POSSESSION OF A FIREARM AND AMMUNITION VERDICT
Step 1:

Verdict

On the charge of "felon in possession of a firearm and ammunition," as explained in Final Jury Instruction No. 5, please mark your verdict. ____ Not Guilty

____ Guilty

Step 2:

Alternative(s)

If you have found defendant Anthony Smith guilty of this offense, please indicate which of the following you find that he possessed
_____ one Jennings .380 caliber pistol, with serial number removed
_____ one or more Winchester .38 caliber bullets
_____ one or more Remington .380 caliber bullets





________________

Date



_______________________________

Foreperson



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror