IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

WESTERN DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 00-3035-MWB

vs.



PRELIMINARY AND

FINAL INSTRUCTIONS

TO THE JURY

HOWARD NEIL HARP,
Defendant.




TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - STATEMENT OF THE CASE 2

NO. 3 - ELEMENTS OF THE OFFENSE 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 - STIPULATED FACTS 12

NO. 9 - RECORDED CONVERSATIONS 13

NO. 10 - CREDIBILITY OF WITNESSES 14

NO. 11 - BENCH CONFERENCES AND RECESSES 16

NO. 12 - OBJECTIONS 17

NO. 13 - NOTE-TAKING 18

NO. 14 - CONDUCT OF THE JURY 19

FINAL INSTRUCTIONS 21

NO. 1 - INTRODUCTION 21

NO. 2 - "INTENT"AND "KNOWLEDGE" 22

NO. 3 - "POSSESSION," "DISTRIBUTION," AND "DELIVERY" 23

NO. 4 - POSSESSION WITH INTENT TO DISTRIBUTE NEAR A

PUBLIC PLAYGROUND 25

NO. 5 - MR. HARP'S DEFENSE TO COUNT 1 28

NO. 6 - QUANTITY OF METHAMPHETAMINE 29

NO. 7 - DISTRIBUTION OF METHAMPHETAMINE NEAR A PUBLIC

PLAYGROUND 31

NO. 8 - USING OR CARRYING A FIREARM 33

NO. 9 - IMPEACHMENT 35

NO. 10 - PRESUMPTION OF INNOCENCE AND BURDEN OF PROOF 37

NO. 11 - REASONABLE DOUBT 38

NO. 12 - DUTY TO DELIBERATE 39

NO. 13 - DUTY DURING DELIBERATIONS 41



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



In this case, the United States charges defendant Howard Neil Harp with four offenses: (1) possession of methamphetamine on or about May 30, 2000, with intent to distribute it within 1,000 feet of a public playground; (2) distribution of methamphetamine on or about May 15, 2000, within 1,000 feet of a public playground; (3) distribution of methamphetamine on or about May 30, 2000, within 1,000 feet of a public playground; and (4) using or carrying a firearm between about May 2, 2000, and May 30, 2000, during and in relation to one or more drug-trafficking offenses, including the offenses described above.

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. The indictment charges that the offenses were committed "on or about" a certain date or "between about" two 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.

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 instructions, to reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not. Also, your verdict on the charges against the defendant must be unanimous.

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, unaffected by anything except the evidence, your common sense, and the law as I give it to you. Do not take anything I may say or do during the trial as indicating what I think of the evidence, what I think your verdict should be, or that I have any opinions on the merits of the case favoring one side or the other.

Please remember that only defendant Howard Neil Harp, 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.

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF THE OFFENSE



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



Count 1: Possession With Intent To Distribute Near A Public Playground

In Count 1 of the indictment against Mr. Harp, the United States charges that, on or about May 30, 2000, Mr. Harp knowingly and intentionally possessed methamphetamine with intent to distribute it within 1,000 feet of the real property comprising a public playground, in this case, Leif Erickson Park, located on E Street in Fort Dodge, Iowa. The indictment alleges that this offense involved possession with intent to distribute 115.1 grams of a mixture or substance containing a detectable amount of methamphetamine, which contained 14.45 grams of actual (pure) methamphetamine.

For you to find the defendant guilty of this offense, the prosecution must prove the following four elements beyond a reasonable doubt as to the defendant:

One, on or about May 30, 2000, the defendant was in possession of methamphetamine;

Two, the defendant knew that he was, or intended to be, in possession of a controlled substance;

Three, the defendant intended to distribute some or all of the controlled substance to another person; and

Four, the location at which the defendant possessed methamphetamine with intent to distribute it was within 1,000 feet of a "public playground."

If the government fails to prove all four of these elements beyond a reasonable doubt, then you must find the defendant not guilty of the offense charged in Count 1 of the indictment. However, if you find the defendant guilty of the offense charged in Count 1, then you must also determine beyond a reasonable doubt the quantity of the methamphetamine involved in the offense for which the defendant can be held responsible.



Counts 2 & 3: Distribution Of Methamphetamine Near A Public Playground

In Counts 2 and 3 of the indictment, the United States charges Mr. Harp with separate offenses of distribution of methamphetamine near a public playground. Specifically, Count 2 charges that, on or about May 15, 2000, Mr. Harp knowingly and intentionally distributed approximately 2.9 grams of a mixture or substance containing a detectable amount of methamphetamine within 1,000 feet of the real property comprising a public playground, in this case, Leif Erickson Park, located on E Street in Fort Dodge, Iowa. Count 3 charges that, on or about May 30, 2000, Mr. Harp knowingly and intentionally distributed approximately 1.4 grams of a mixture or substance containing a detectable amount of methamphetamine within 1,000 feet of the same public playground.

For you to find the defendant guilty of a particular count of "distribution of methamphetamine near a public playground," the prosecution must prove the following three elements beyond a reasonable doubt against the defendant as to that count:

One, on or about the date alleged, the defendant intentionally distributed methamphetamine to another;

Two, at the time of the distribution, the defendant knew that what he was distributing was a controlled substance; and

Three, the distribution took place within 1,000 feet of a "public playground."

If the government fails to prove all three of these elements beyond a reasonable doubt as to a particular count of distribution of methamphetamine within 1,000 feet of a public playground, then you must find the defendant not guilty of that count of the indictment.



Count IV: Using Or Carrying A Firearm

In Count 4 of the indictment, the United States charges that, between about May 2, 2000, and May 30, 2000, Mr. Harp knowingly used and carried a firearm or firearms during and in relation to one or more drug-trafficking crimes, including the offenses charged in Counts 1, 2, and 3 of the indictment. The indictment alleges that the firearms in question were a Baikal Model IZH-70 .380 caliber handgun, serial number BAC 5420, and/or a Remington Model 870 Express Magnum 12-gauge shotgun, serial number A303760M.

For you to find the defendant guilty of this offense of "using or carrying a firearm," the prosecution must prove the following two elements beyond a reasonable doubt against the defendant:

One, the defendant committed a drug-trafficking crime identified in Count 1, Count 2, or Count 3 of the indictment; and

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

If the government fails to prove both of these elements beyond a reasonable doubt, then you must find the defendant not guilty of the offense charged in Count 4 of the indictment.



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. Because they are more detailed, those final instructions govern on the elements of the offenses charged.

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



Defendant Howard Neil Harp 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. Harp 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. The defendant is not even obligated to produce any evidence by cross-examining the witnesses who are called to testify by the prosecution.

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

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 the defendant. Do not give greater consideration to documents or exhibits, because of their volume and number, or the fact that they are in written form, than you give to any other evidence admitted in this case.

PRELIMINARY INSTRUCTION NO. 8 - STIPULATED FACTS



The prosecution and the defendant have stipulated--that is, they have agreed--that certain facts are as counsel states them to be. You must therefore treat those facts as having been proved.

PRELIMINARY INSTRUCTION NO. 9 - RECORDED CONVERSATIONS



You may hear an audio tape recording or view a videotape recording. The conversations on such recordings were legally recorded, and you may consider such recordings just like any other evidence.

A recording may or may not be accompanied by a typed transcript. A transcript, if present, may also undertake to identify the speakers engaged in the conversation. You are permitted to view a transcript for the limited purpose of helping you follow the conversation as you listen to or view the recording and to help you keep track of the speakers. A transcript, however, is not evidence. A recording itself is the primary evidence of its own contents.

You are specifically instructed that whether a transcript, if available, correctly or incorrectly reflects the conversation or the identity of the speakers is entirely for you to decide based upon what you may hear about the preparation of the transcript and upon your own examination of the transcript in relation to what you hear on the recording. If you decide that a transcript is in any respect incorrect or unreliable, you should disregard it to that extent.

Differences in meaning between what you hear in a recording and read in a transcript, if available, may be caused by such things as the inflection in a speaker's voice. You should, therefore, rely on what you hear rather than what you read when there is a difference.

PRELIMINARY INSTRUCTION NO. 10 - 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. 11 - 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. 12 - 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. 13 - 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. 14 - 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 2nd day of May, 2001.



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 - "INTENT"AND "KNOWLEDGE"



"Intent" and "knowledge" are elements of the offenses charged in this case. "Intent" and "knowledge" may be proved like anything else. 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 in your determination of the defendant's "knowledge" or "intent." 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 - "POSSESSION," "DISTRIBUTION,"

AND "DELIVERY"





Three of the offenses charged involve "possession," "distribution," and "delivery" of a controlled substance. The following definitions of these terms apply in these instructions:

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 these instructions, 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 item. 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 government 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 term "distribute" means to deliver a controlled substance to the actual or constructive possession of another person. 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. The prosecution does not have to prove that there was a "sale" of a controlled substance to establish distribution or that there was to be a "sale" to establish intent to distribute.

FINAL INSTRUCTION NO. 4 - POSSESSION WITH INTENT

TO DISTRIBUTE NEAR A PUBLIC PLAYGROUND





In Count 1 of the indictment against Mr. Harp, the United States charges that, on or about May 30, 2000, Mr. Harp knowingly and intentionally possessed methamphetamine with intent to distribute it within 1,000 feet of the real property comprising a public playground, in this case, Leif Erickson Park, located on E Street in Fort Dodge, Iowa. The indictment alleges that this offense involved possession with intent to distribute 115.1 grams of a mixture or substance containing a detectable amount of methamphetamine, which contained 14.45 grams of actual (pure) methamphetamine.

For you to find the defendant guilty of this offense of "possession with intent to distribute near a public playground," the prosecution must prove the following four elements beyond a reasonable doubt as to the defendant:

One, on or about May 30, 2000, the defendant was in possession of methamphetamine.

"Possession" was defined for you in Final Instruction No. 3. The prosecution does not have to prove that the defendant possessed the amount or quantity of methamphetamine charged in the indictment. However, you must ascertain whether or not the substance in question was in fact methamphetamine, as specified in the indictment.



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

"Intent" and "knowledge" were defined for you in Final Instruction No. 2. The defendant need not know what the controlled substance is if the defendant knows that he has possession of some controlled substance. A "controlled substance" is any drug or narcotic the manufacture, possession, or distribution of which is prohibited or regulated by federal law. Methamphetamine is a controlled substance.



Three, the defendant intended to distribute some or all of the controlled substance to another person.

Again, "intent" was defined for you in Final Instruction No. 2. Possession of a large quantity of a controlled substance is evidence from which you may, but are not required to, infer that the possessor intended to distribute the controlled substance. The term "distribute" was defined for you in Final Instruction No. 3.



Four, the location at which the defendant possessed methamphetamine with intent to distribute it was within 1,000 feet of a "public playground."

The term "public playground" means any outdoor facility (including any parking lot belonging to it) intended for recreation, open to the public, and with any portion thereof containing three or more separate apparatus intended for the recreation of children, including, but not limited to, sliding boards, swingsets, and teeterboards. The "public playground" in question here was Leif Erickson Park, located on E Street in Fort Dodge, Iowa.

It is for you to determine whether Leif Erickson Park fits the definition of a "public playground." Children do not have to be near or around the playground at the time of the offense for the property to be a "public playground."

It is also for you to determine whether the distribution took place at a location within 1,000 feet of this "public playground." The 1,000 foot zone can be measured in a straight line from the "public playground," irrespective of actual pedestrian travel routes.

The prosecution does not have to prove that the defendant knew or intended that the distribution would take place within 1,000 feet of a "public playground." However, the prosecution must prove that the location at which the defendant possessed the methamphetamine with intent to distribute it was within 1,000 feet of a "public playground."



For you to find the defendant guilty of the crime of possession of methamphetamine with intent to distribute it near a public playground, as charged in Count 1 of the indictment, the government must prove all of the essential elements of this offense beyond a reasonable doubt as to the defendant; otherwise, you must find the defendant not guilty of the offense charged in Count 1 of the indictment.

However, if you find the defendant not guilty of this offense or if, after all reasonable efforts, you are unable to reach a verdict on this offense, you should record that decision on the verdict form and go on to consider whether the defendant is guilty only of the "lesser-included offense" of simple possession of methamphetamine. You may find the defendant guilty of this "lesser-included offense" only if you find that the government has proved the first two elements above beyond a reasonable doubt as to the defendant.

In addition, if you find the defendant guilty of the offense charged in Count 1, or guilty of the "lesser-included offense" of simple possession, then you must also determine beyond a reasonable doubt the quantity of the methamphetamine involved in the offense for which the defendant can be held responsible, as explained in Final Instruction No. 6.

FINAL INSTRUCTION NO. 5 - MR. HARP'S DEFENSE TO COUNT 1



In addition to denying that the government has proved all of the essential elements of the offense charged in Count 1 of the indictment beyond a reasonable doubt, the defendant also asserts the following specific defense:

As I explained in Final Instruction No. 3, possession may be "sole" or "joint." If you find that, with respect to some quantity of methamphetamine, the defendant and another person simultaneously acquired possession of the methamphetamine at the outset for their own use, then you cannot find on that evidence, standing alone, that the defendant possessed the methamphetamine with intent to distribute it. Rather, whether or not the evidence shows that the defendant possessed the methamphetamine with intent to distribute it depends upon the surrounding circumstances, including the following: (a) the nature of the relationship between the persons in possession of the methamphetamine, in other words, whether the relationship was commercial or personal; (b) the quantity of the methamphetamine, that is, whether it is too large for personal use only; (c) the number of people involved in joint possession; and (d) the statements and conduct on the part of the joint possessors.

Remember that, at all times, the government bears the burden of proving all elements of Count 1 against Mr. Harp beyond a reasonable doubt. The burden never shifts to the defendant to prove his specific defense or otherwise to prove his innocence.

FINAL INSTRUCTION NO. 6 - QUANTITY OF

METHAMPHETAMINE





If you find the defendant guilty of the offense charged Count 1 of the indictment, or guilty of the "lesser-included offense" of simple possession of methamphetamine, you must determine beyond a reasonable doubt the quantity of the methamphetamine 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 methamphetamine charged in the indictment, although the prosecution must prove beyond a reasonable doubt the quantity of any methamphetamine 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, as charged in the indictment, and you must determine beyond a reasonable doubt the amount of the methamphetamine 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 possession of methamphetamine with intent to distribute it near a public playground is responsible for the quantity of methamphetamine he possessed with intent to distribute it. Similarly, a defendant guilty of the "lesser-included offense" of simple possession of methamphetamine is responsible for the quantity of methamphetamine he possessed.

You must determine the range within which the total quantity of a controlled substance for which the defendant can be held responsible falls. In the case of methamphetamine, you must determine that total quantity in terms of grams of a mixture or substance containing a detectable amount of methamphetamine or in terms of grams of actual (pure) methamphetamine. Remember that one ounce is approximately equal to 28.35 grams.

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

FINAL INSTRUCTION NO. 7 - DISTRIBUTION OF METHAMPHETAMINE

NEAR A PUBLIC PLAYGROUND





In Counts 2 and 3 of the indictment, the United States charges Mr. Harp with separate offenses of distribution of methamphetamine near a public playground. Specifically, Count 2 charges that, on or about May 15, 2000, Mr. Harp knowingly and intentionally distributed approximately 2.9 grams of a mixture or substance containing a detectable amount of methamphetamine within 1,000 feet of the real property comprising a public playground, in this case, Leif Erickson Park, located on E Street in Fort Dodge, Iowa. Count 3 charges that, on or about May 30, 2000, Mr. Harp knowingly and intentionally distributed approximately 1.4 grams of a mixture or substance containing a detectable amount of methamphetamine within 1,000 feet of the same public playground.

For you to find the defendant guilty of a particular count of "distribution of methamphetamine near a public playground," the prosecution must prove the following three elements beyond a reasonable doubt against the defendant as to that count:

One, on or about the date alleged, the defendant intentionally distributed methamphetamine to another.

"Intent" was defined for you in Final Instruction No. 2 and "distribution" was defined for you in Final Instruction No. 3. The prosecution does not have to prove that the defendant distributed the amount or quantity of methamphetamine charged in a particular count of the indictment. It need only prove beyond a reasonable doubt that he distributed a measurable amount of methamphetamine. You must ascertain whether or not the substance in question was in fact methamphetamine, as specified in the indictment. In so doing, you may consider all of the evidence in the case that may aid in the determination of that issue.



Two, at the time of the distribution, the defendant knew that what he was distributing was a controlled substance.

"Knowledge" was defined for you in Final Instruction No. 2. Additionally, the defendant need not know what the controlled substance is if he knows he is distributing some controlled substance. "Controlled substance" was defined for you in the explanation to element two in Final Instruction No. 4.



Three, the distribution took place within 1,000 feet of a "public playground."

The "public playground" in question in Counts 2 and 3 of the indictment is again Leif Erickson Park, located on E Street in Fort Dodge, Iowa. The definition of "public playground" and the explanation provided in element four of Final Instruction No. 4 are also applicable here.



For you to find a defendant guilty of committing a particular count of "distribution of methamphetamine near a public playground," the prosecution must prove all three of these essential elements beyond a reasonable doubt against the defendant as to that count; otherwise, you must find that defendant not guilty of that count of the indictment.

FINAL INSTRUCTION NO. 8 - USING OR

CARRYING A FIREARM





In Count 4 of the indictment, the United States charges that, between about May 2, 2000, and May 30, 2000, Mr. Harp knowingly used and carried a firearm or firearms during and in relation to one or more drug-trafficking crimes, including the offenses charged in Counts 1, 2, and 3 of the indictment. The indictment alleges that the firearms in question were a Baikal Model IZH-70 .380 caliber handgun, serial number BAC 5420, and/or a Remington Model 870 Express Magnum 12-gauge shotgun, serial number A303760M.

For you to find the defendant guilty of this offense of "using or carrying a firearm," the prosecution must prove the following two elements beyond a reasonable doubt against the defendant:

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

In order to determine whether a drug-trafficking crime has been established, you should refer to Final Instructions Nos. 4 and 7.



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

"Knowledge" was defined for you in Final Instruction No. 2. 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-trafficking offense. 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-trafficking offense; 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 a drug-trafficking offense. 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-trafficking offense; 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 Mr. Harp guilty of the crime of "using or carrying a firearm," as charged in Count 4 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 4 of the indictment.

FINAL INSTRUCTION NO. 9 - IMPEACHMENT



In Preliminary Instruction No. 10, 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 witnesses Chad Wadsley and Taza Bryant have each been convicted of a crime. You may use that evidence only to help you decide whether or not to believe these witnesses and how much weight to give their testimony.

You have heard evidence that witness Taza Bryant is testifying pursuant to plea agreements and hopes to receive a reduction in his sentence in return for his cooperation with the prosecution in this case. If the prosecutor handling such a witness's case believes the witness has provided "substantial assistance," the prosecutor can file a motion to reduce the witness's sentence. The judge has no power to reduce a sentence for such a witness for substantial assistance unless the U.S. attorney files a motion requesting such a reduction. If the motion for reduction of sentence for substantial assistance is filed by the U.S. attorney, then it is up to the judge to decide whether to reduce the sentence of that witness at all, and if so, how much to reduce it. You should treat the testimony of such a witness with greater caution and care, but you may give the testimony of such a witness 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. 10 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF





Howard Neil Harp 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. Harp, 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. Therefore, the fact that the defendant did not testify must not be discussed or considered by you in any way when deliberating and arriving at your verdict. A defendant is not even obligated to produce any evidence by cross-examining the witnesses who are called to testify by the prosecution.

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

FINAL INSTRUCTION NO. 11 - 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. 12 - 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 an 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. 13 - DUTY DURING DELIBERATIONS



There are certain rules that 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 Howard Neil Harp 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 3rd day of May, 2001.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,
Plaintiff,

No. CR 00-3035-MWB

vs.



VERDICT FORM

HOWARD NEIL HARP,
Defendant.

____________________

We, the Jury, unanimously find defendant Howard Neil Harp guilty or not guilty as follows:

COUNT DESCRIPTION VERDICT
1 Possession with intent to distribute near a public playground, as explained in Final Instruction No. 4 ___ Not guilty

___ Guilty

___ No Verdict

If you answered "not guilty" or "no verdict," as to the offense charged in Count 1, what is your verdict on the "lesser-included offense" of simple possession of methamphetamine, as explained in Final Jury Instruction No. 4 on page 27? ___ Not guilty

___ Guilty

If you answered "guilty" as to either the offense charged in Count 1 or the "lesser-included offense," what is the quantity of methamphetamine for which you find beyond a reasonable doubt that the defendant can be held responsible on this offense, as explained in Final Instruction No. 6? (Please make your determination of the range within which the total quantity of methamphetamine for which the defendant can be held responsible falls and indicate that total quantity in terms of grams of actual (pure) methamphetamine or in terms of grams of a mixture or substance containing a detectable amount of methamphetamine.)
5 grams or more of actual (pure) methamphetamine OR 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine



_____
less than 5 grams of actual (pure) methamphetamine OR less than 50 grams of a mixture or substance containing a detectable amount of methamphetamine

_____
2 Distribution of methamphetamine, on or about May 15, 2000, near a public playground, as explained in Final Instruction No. 7 ___ Not guilty

___ Guilty

3 Distribution of methamphetamine, on or about May 30, 2000, near a public playground, as explained in Final Instruction No. 7 ___ Not guilty

___ Guilty

4 Using or carrying a firearm, as explained in Final Instruction No. 8 ___ Not guilty

___ Guilty

If you found the defendant "guilty" of this offense, what firearm or firearms do you find he used or carried during and in relation to a drug-trafficking offense?
a Baikal Model IZH-70 .380 caliber handgun, serial number BAC 5420



_____
a Remington Model 870 Express Magnum 12-gauge shotgun, serial number A303760M

_____




________________

Date



_______________________________

Foreperson



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror



_______________________________

Juror