IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 01-3027-MWB

vs.


PRELIMINARY AND FINAL INSTRUCTIONS

TO THE JURY

MICHAEL VIETH,

Defendant.

____________________



TABLE OF CONTENTS

 

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - DUTY OF JURORS

NO. 3 - REQUIREMENTS FOR PROOF

NO. 4 - PRESUMPTION OF INNOCENCE

NO. 5 - REASONABLE DOUBT

NO. 6 - OUTLINE OF TRIAL

NO. 7 - DEFINITION OF EVIDENCE

NO. 8 - CREDIBILITY OF WITNESSES

NO. 9 - BENCH CONFERENCES AND RECESSES

NO. 10 - OBJECTIONS

NO. 11 - NOTE-TAKING

NO. 12 - CONDUCT OF THE JURY

 

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - “INTENT” AND “KNOWLEDGE”

NO. 3 - “POSSESSION,” “DISTRIBUTION,” AND “DELIVERY”

NO. 4 - COUNT 1: CONSPIRACY

NO. 5 - OBJECTIVES OF THE CONSPIRACY

NO. 6 - ACTS AND STATEMENTS OF CO-CONSPIRATORS

NO. 7 - COUNT 2: MANUFACTURING “PURE”

METHAMPHETAMINE

NO. 8 - COUNT 2: “PERSONAL COMMISSION”

ALTERNATIVE

NO. 9 - COUNT 2: “ATTEMPT” ALTERNATIVE

NO. 10 - COUNT 2: “AIDING AND ABETTING”

ALTERNATIVE

NO. 11 - COUNT 3: POSSESSION WITH INTENT TO

DISTRIBUTE

NO. 12 - QUANTITY OF METHAMPHETAMINE

NO. 13 - PRIOR SIMILAR CONDUCT

NO. 14 - IMPEACHMENT

NO. 15 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF

NO. 16 - REASONABLE DOUBT

NO. 17 - DUTY TO DELIBERATE

NO. 18 - DUTY DURING DELIBERATIONS


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 Michael Vieth, 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.

        You must give separate consideration to each charge against the defendant and return a separate, unanimous verdict on each charge.


PRELIMINARY INSTRUCTION NO. 3 - REQUIREMENTS FOR PROOF

 

        To help you follow the evidence, I will now give you a summary of the requirements for proof 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 offenses with which Mr. Vieth is charged.

        However, I must first explain that the indictment alleges that each offense was committed “between about” two dates or “on or about” a certain date. The prosecution does not have to prove with certainty the exact date of an offense charged. It is sufficient if the evidence establishes that an offense occurred within a reasonable time of the date alleged in the indictment.

        In these instructions, I will refer to methamphetamine itself—that is, either by itself or contained in a mixture or substance—as “actual” or “pure” methamphetamine. I will refer to a mixture or substance containing a detectable amount of “pure” methamphetamine as “a methamphetamine mixture.”

        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. “Pure” methamphetamine and “a methamphetamine mixture” are both “controlled substances.”

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

 

COUNT 1: CONSPIRACY

        Count 1 of the indictment charges that, between about the spring of 2000 and September 2000, Mr. Vieth conspired and agreed with others to commit either or both of the following offenses: (1) manufacturing or distributing 5 grams or more of “pure” methamphetamine; and (2) manufacturing or distributing 50 grams or more of a methamphetamine mixture.

        Elements

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

        One, between about the spring of 2000 and September 2000, two or more persons reached an agreement or came to an understanding to commit one or more of the offenses alleged to be objectives of the conspiracy;

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

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

        Objectives

        The indictment alleges that the conspirators agreed to commit two separate crimes or offenses involving two different controlled substances: (1) “pure” methamphetamine, or (2) a methamphetamine mixture. The indictment alleges that the conspirators agreed to commit offenses involving each of these controlled substances by engaging in either or both of the following kinds of prohibited conduct: manufacturing or distributing the controlled substance. It is not necessary for the prosecution to prove a conspiracy to commit offenses involving both controlled substances or more than one kind of prohibited conduct. It would be sufficient if the prosecution proves, beyond a reasonable doubt, a conspiracy to commit one offense involving one controlled substance, either “pure” methamphetamine or a methamphetamine mixture, and one kind of prohibited conduct, either manufacturing or distributing. However, in order to return a verdict of guilty on the “conspiracy” offense, you must unanimously agree upon which controlled substance or substances and which kind or kinds of prohibited conduct were objectives of the conspiracy. If you cannot agree in that manner, then you must find the defendant not guilty of the “conspiracy” offense.

        To assist you in determining whether there was an agreement to commit the offenses alleged to be objectives of the conspiracy, you should consider the elements of those offenses. The elements of manufacturing a controlled substance are the following:

(1) a person manufactured a controlled substance; and

(2) the person knew that he or she was, or intended to be, manufacturing a controlled substance.

 

The elements of distribution of a controlled substance are the following:

(1) a person intentionally distributed a controlled substance to another; and

(2) at the time of the distribution, the person knew that what he or she was distributing was a controlled substance.

 

        To find the defendant guilty of the “conspiracy” charge, you do not have to find that either of the offenses alleged to be objectives of the conspiracy was actually committed by the defendant or anyone else. It is the agreement to commit such an offense that is illegal; therefore, the illegal agreement is the conduct that has been charged in the indictment, and it is the agreement that must be proved to establish the defendant’s guilt on the conspiracy charge.

 

COUNT 2: MANUFACTURING METHAMPHETAMINE

        Count 2 of the indictment charges that, on or about September 17, 2000, Mr. Vieth knowingly and intentionally manufactured 5 grams or more of “pure” methamphetamine. The defendant may be found guilty of this “manufacturing” offense under one or more of the following alternatives: personally committing the offense, personally attempting to commit the offense, or aiding and abetting another in an attempt 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 both of the following essential elements beyond a reasonable doubt:

        One, on or about September 17, 2000, 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 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 manufacturing methamphetamine under this “attempt” alternative, the prosecution must prove all of the following essential elements beyond a reasonable doubt:

        One, the defendant intended to manufacture a controlled substance;

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

        Three, on or about September 17, 2000, the defendant voluntarily and intentionally carried out some act that was a substantial step toward manufacturing “pure” methamphetamine.

Third alternative: Aiding and abetting an attempt to manufacture methamphetamine

 

        The defendant may also be found guilty of manufacturing methamphetamine, even if he did not personally do every act constituting an attempt to manufacture methamphetamine, as defined in the second alternative above, if he “aided and abetted” another in an attempt to manufacture methamphetamine. For you to find the defendant guilty of manufacturing methamphetamine under this “aiding and abetting” alternative, the prosecution must prove all of the following essential elements beyond a reasonable doubt:

        One, on or about September 17, 2000, some person or persons attempted to manufacture methamphetamine, as the elements of “attempt” are explained in the second alternative;

        Two, the defendant knew that an attempt to manufacture a controlled substance was being made or was going to be made;

        Three, the defendant knowingly acted in some way for the purpose of causing, encouraging, or aiding the attempt to manufacture a controlled substance; and

        Four, the defendant intended that a controlled substance would be manufactured.

 

COUNT 3: POSSESSION WITH INTENT TO DISTRIBUTE

         Count 3 of the indictment charges that, on or about September 17, 2000, Mr. Vieth knowingly and intentionally possessed a methamphetamine mixture with intent to distribute it. For you to find the defendant guilty of this offense, the prosecution must prove all of the following essential elements beyond a reasonable doubt:

        One, on or about September 17, 2000, the defendant was in possession of a methamphetamine mixture;

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

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

 

QUANTITY OF METHAMPHETAMINE

        Count 1 of the indictment charges that the “conspiracy” offense involved specific quantities of “pure” methamphetamine, a methamphetamine mixture, or both. Count 2 of the indictment charges that the “manufacturing” offense involved a specific quantity of “pure” methamphetamine. The prosecution does not have to prove that these offenses involved the amount or quantity of controlled substances charged in the indictment. However, if you find the defendant guilty of one of these offenses, then you must determine the following matters beyond a reasonable doubt: (1) whether the offense involved the controlled substance or substances alleged in the pertinent count of the indictment, and if so, (2) the total quantity, in grams, of the controlled substance or substances 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. However, you do not have to determine the quantity of methamphetamine involved in the “possession with intent to distribute” offense charged in Count 3, even if you find the defendant guilty of that offense.

 

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


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 see or hear 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 November, 2003.

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                                                    __________________________________

                                                    MARK W. BENNETT

                                                    CHIEF JUDGE, U. S. DISTRICT COURT

                                                    NORTHERN DISTRICT OF IOWA


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, although the defendant’s “intent” and “knowledge” are typically established through circumstantial evidence. Therefore, you may consider any statements made or acts done by the defendant, and all of the facts and circumstances in evidence, to aid you in the determination of the defendant’s knowledge 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”

 

 

        The offenses charged or alleged to be objectives of the conspiracy offense involve “possession,” “distribution,” and/or “delivery” of controlled substances, or intent to do those things. 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 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, the prosecution must establish that the following circumstances all existed at the same time: (a) the person had knowledge of the presence of the thing; (b) the person intended to exercise control over the thing or place in which it was found; (c) the person had the power to exercise control over the thing or place in which it was found; and (d) 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 “distribution” or “possession with intent to distribute” a controlled substance; the prosecution does not have to prove that there was, or was intended to be, a “sale” of a controlled substance to prove an agreement to distribute, intent to distribute, or possession with intent to distribute a controlled substance.


FINAL INSTRUCTION NO. 4 - COUNT 1: CONSPIRACY

 

 

        Count 1 of the indictment charges that, between about the spring of 2000 and September 2000, Mr. Vieth conspired and agreed with others to commit either or both of the following offenses: (1) manufacturing or distributing 5 grams or more of “pure” methamphetamine; and (2) manufacturing or distributing 50 grams or more of a methamphetamine mixture. For you to find the defendant guilty of this offense, the prosecution must prove all of the following essential elements beyond a reasonable doubt:

        One, between about the spring of 2000 and September 2000, two or more persons reached an agreement or came to an understanding to commit one or more of the offenses alleged to be objectives of the conspiracy.

The prosecution must prove that the defendant reached an agreement or understanding with at least one other person. It makes no difference whether that person is a defendant, or named in the indictment, or otherwise charged with a crime. There is no requirement that any other conspirators be named as long as you find beyond a reasonable doubt that there was at least one other co-conspirator besides the defendant.

The “agreement or understanding” need not be an express or formal agreement or be in writing or cover all the details of how it is to be carried out. Nor is it necessary that the members have directly stated between themselves the details or purpose of the scheme. In determining whether the alleged agreement existed, you may consider the actions and statements of all of the alleged participants, whether they are charged as defendants or not. The agreement may be inferred from all of the circumstances and the conduct of the alleged participants.

In the indictment, the Grand Jury charges that, between about the spring of 2000 through September 2000, Mr. Vieth conspired and agreed with others to commit certain offenses as “objectives” of the conspiracy. I will explain these “objectives” of the conspiracy in more detail in Final Jury Instruction No. 5. For you to find that this element has been proved, you must unanimously agree on which offense or offenses were objectives of the conspiracy.

Keep in mind that, in the “conspiracy” charge in the indictment, the Grand Jury charges that the defendant conspired to commit the offenses identified, not that these offenses were actually committed by the defendant or anyone else. Therefore, to find the defendant guilty of the “conspiracy,” as charged in the indictment, you do not have to find that either of the offenses identified as an objective of the conspiracy was actually committed by the defendant or anyone else.

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

You should understand that merely being present at the scene of an event, or merely acting in the same way as others, or merely associating with others does not prove that a person has joined in an agreement or understanding. A person who has no knowledge of a conspiracy, but who happens to act in a way that advances some purpose of one, does not thereby become a member. Similarly, mere knowledge of the existence of a conspiracy, or mere knowledge that a controlled substance is being manufactured or distributed, is not enough to prove that the defendant joined in the conspiracy; rather, the prosecution must establish some degree of knowing involvement and cooperation.

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

In deciding whether the defendant voluntarily and intentionally joined in the agreement, you must consider only evidence of his own actions and statements. You may not consider actions and pretrial statements of others, except to the extent that pretrial statements of others describe something that the defendant said or did.

 

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

The defendant must know of the existence and purpose of the conspiracy. Without such knowledge, the defendant cannot be guilty of conspiracy, even if his acts furthered the conspiracy.

 

        For you to find the defendant guilty of the “conspiracy” offense, as charged in Count 1 of the indictment, the prosecution must prove all of the essential elements of this offense beyond a reasonable doubt. Otherwise, you must find the defendant not guilty of the “conspiracy” charged in the indictment.

        In addition, if you find the defendant guilty of this “conspiracy,” and you find that the conspiracy involved either “pure” methamphetamine or a methamphetamine mixture, then you must also determine beyond a reasonable doubt the quantity of the controlled substance actually involved in the conspiracy for which the defendant can be held responsible, as explained in Final Jury Instruction No. 12.


FINAL INSTRUCTION NO. 5 - OBJECTIVES OF THE CONSPIRACY

 

 

 

        The indictment alleges that the conspirators agreed to commit two separate crimes or offenses involving two different controlled substances: (1) “pure” methamphetamine, or (2) a methamphetamine mixture. The indictment alleges that the conspirators agreed to commit offenses involving each of these controlled substances by engaging in either or both of the following kinds of prohibited conduct: manufacturing or distributing the controlled substance. It is not necessary for the prosecution to prove a conspiracy to commit offenses involving both controlled substances or more than one kind of prohibited conduct. It would be sufficient if the prosecution proves, beyond a reasonable doubt, a conspiracy to commit one offense involving one controlled substance, either “pure” methamphetamine or a methamphetamine mixture, and one kind of prohibited conduct, either manufacturing or distributing. However, in order to return a verdict of guilty on the “conspiracy” offense, you must unanimously agree upon which controlled substance or substances and which kind or kinds of prohibited conduct were objectives of the conspiracy. If you cannot agree in that manner, then you must find the defendant not guilty of the “conspiracy” offense.

        To assist you in determining whether there was an agreement to commit the offenses alleged to be objectives of the conspiracy, you should consider the elements of those offenses. The elements of manufacturing a controlled substance are the following:

(1) a person manufactured a controlled substance; and

(2) the person knew that he or she was, or intended to be, manufacturing a controlled substance.

 

 The elements of distribution of a controlled substance are the following:

(1) a person intentionally distributed a controlled substance to another; and

(2) at the time of the distribution, the person knew that what he or she was distributing was a controlled substance.

 

        To find the defendant guilty of the “conspiracy” charge, you do not have to find that either of the offenses alleged to be objectives of the conspiracy was actually committed by the defendant or anyone else. It is the agreement to commit such an offense that is illegal; therefore, the illegal agreement is the conduct that has been charged in the indictment, and it is the agreement that must be proved to establish the defendant’s guilt on the conspiracy charge.


FINAL INSTRUCTION NO. 6 - ACTS AND STATEMENTS OF

CO-CONSPIRATORS


 

 

        If you find beyond a reasonable doubt that the conspiracy existed, and that the defendant was one of its members, then you may consider acts knowingly done and statements knowingly made by the defendant’s co-conspirators during the existence of the conspiracy and in furtherance of it as evidence pertaining to the defendant, even though they were done or made in the defendant’s absence and without his knowledge. This includes acts done or statements made before the defendant joined the conspiracy.


FINAL INSTRUCTION NO. 7 - COUNT 2:

MANUFACTURING “PURE” METHAMPHETAMINE

 

 

        Count 2 of the indictment charges that, on or about September 17, 2000, Mr. Vieth knowingly and intentionally manufactured 5 grams or more of “pure” methamphetamine. The defendant may be found guilty of this “manufacturing” offense under one or more of the following alternatives: personally committing the offense, personally attempting to commit the offense, or aiding and abetting another in an attempt to commit the offense. I will explain the elements of each of these alternatives in turn.

        In the Verdict Form, you will be asked to indicate whether you find the defendant not guilty or guilty of the “manufacturing” offense, and if you find him guilty, you will then be asked to indicate whether you find him guilty of personally committing the offense, attempting to commit the offense, aiding and abetting another in an attempt to commit the offense, or some combination of these alternatives. If you find the defendant guilty of “manufacturing,” under one or more alternatives, you will also be asked to indicate the quantity of methamphetamine involved in the “manufacturing” offense for which the defendant can be held responsible, as explained in Final Jury Instruction No. 12.


FINAL INSTRUCTION NO. 8 - COUNT 2:

“PERSONAL COMMISSION” ALTERNATIVE

 

 

        For you to find the defendant guilty of manufacturing methamphetamine, as charged in Count 2 of the indictment, under this “personal commission” alternative, the prosecution must prove each of the following essential elements beyond a reasonable doubt:

        One, on or about September 17, 2000, the defendant manufactured “pure” methamphetamine.

        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 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 “manufacturing” offense.


FINAL INSTRUCTION NO. 9 - COUNT 2: “ATTEMPT” ALTERNATIVE

 

 

        The defendant may also be found guilty of manufacturing methamphetamine, as charged in Count 2 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 in Final Jury Instruction No. 8.

 

        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 September 17, 2000, 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 2 of the indictment under this “attempt” alternative, the prosecution must prove all of these essential elements beyond a reasonable doubt. Otherwise, you must find the defendant not guilty of attempting to manufacture methamphetamine.


FINAL INSTRUCTION NO. 10 - COUNT 2:

“AIDING AND ABETTING” ALTERNATIVE

 

 

        The defendant may also be found guilty of manufacturing methamphetamine, as charged in Count 2, even if he did not personally do every act constituting an attempt to manufacture methamphetamine, as defined in Final Jury Instruction No. 9, if he “aided and abetted” another in an attempt to manufacture methamphetamine. For you to find the defendant guilty of manufacturing methamphetamine under this “aiding and abetting” alternative, the prosecution must prove all of the following essential elements beyond a reasonable doubt:

        One, on or about September 17, 2000, some person or persons attempted to manufacture methamphetamine.

The elements of “attempt” are explained in Final Jury Instruction No. 9. It is not necessary that the other person or persons be convicted or even identified.

 

        Two, the defendant knew that an attempt to manufacture a controlled substance was being made or was going to be made.

“Knowledge” was defined for you in Final Jury Instruction No. 2. The prosecution does not have to prove that the aider and abettor knew what controlled substance the other person or persons were attempting to manufacture; however, the prosecution must prove that the aider and abettor knew that the other person or persons were attempting to manufacture some controlled substance.

 

        Three, the defendant knowingly acted in some way for the purpose of causing, encouraging, or aiding the attempt to manufacture a controlled substance.

You should understand that merely being present at the scene of an event, or merely acting in the same way as others, or merely associating with others does not prove that a person knowingly acted in some way for the purpose of aiding an attempt to manufacture a controlled substance. A person who has no knowledge that a crime is being committed or is about to be committed, but who happens to act in a way that advances that crime, does not thereby “aid and abet” that crime. Although the prosecution does not need to prove that the defendant knew what controlled substance was being manufactured, the prosecution must prove that he knowingly acted in some way for the purpose of causing, encouraging, or aiding an attempt to manufacture some controlled substance.

 

        Four, the defendant intended that a controlled substance would be manufactured.

“Intent to manufacture a controlled substance” was explained to you in reference to element two of the “personal commission” alternative in Final Jury Instruction No. 8.

 

        For you to find the defendant guilty of the “manufacturing” offense charged in Count 2 of the indictment under this “aiding and abetting” alternative, the prosecution must prove all of these essential elements beyond a reasonable doubt. Otherwise, you must find the defendant not guilty of aiding and abetting an attempt to manufacture methamphetamine.


FINAL INSTRUCTION NO. 11 - COUNT 3: POSSESSION

WITH INTENT TO DISTRIBUTE

 

 

        Count 3 of the indictment charges that, on or about September 17, 2000, Mr. Vieth knowingly and intentionally possessed a methamphetamine mixture with intent to distribute it. For you to find the defendant guilty of this offense, the prosecution must prove all of the following essential elements beyond a reasonable doubt:

        One, on or about September 17, 2000, the defendant was in possession of a methamphetamine mixture.

“Possession” is defined for you in Final Jury Instruction No. 3. You must ascertain whether or not the substance in question was in fact a methamphetamine mixture, as specified in the indictment.

 

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

“Knowledge” and “intent” were defined for you in Final Jury Instruction No. 2. Additionally, the defendant need not know what the controlled substance is if the defendant knows that he has possession of some 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 Jury Instruction No. 2. You are instructed, further, that 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 Jury Instruction No. 3.

 

        For you to find the defendant guilty of the “possession with intent to distribute” offense charged in Count 3 of the indictment, the prosecution must prove all of the essential elements of this offense beyond a reasonable doubt. Otherwise, you must find the defendant not guilty of the “possession with intent to distribute” charge.


FINAL INSTRUCTION NO. 12 - QUANTITY OF METHAMPHETAMINE

 

 

 

        Count 1 of the indictment charges that the “conspiracy” offense involved specific quantities of “pure” methamphetamine, a methamphetamine mixture, or both. Count 2 of the indictment charges that the “manufacturing” offense involved a specific quantity of “pure” methamphetamine. The prosecution does not have to prove that these offenses involved the amount or quantity of controlled substances charged in the indictment. However, if you find the defendant guilty of one of these offenses, then you must determine the following matters beyond a reasonable doubt: (1) whether the offense involved the controlled substance or substances alleged in the pertinent count of the indictment, and if so, (2) the total quantity, in grams, of the controlled substance or substances 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. However, you do not have to determine the quantity of methamphetamine involved in the “possession with intent to distribute” offense charged in Count 3, even if you find the defendant guilty of that offense.

        A defendant guilty of conspiracy to manufacture or distribute methamphetamine (either “pure” methamphetamine or a methamphetamine mixture), as charged in Count 1 of the indictment and explained in Final Jury Instruction No. 4, is responsible for quantities of the controlled substance that he actually manufactured or distributed, or agreed to manufacture or distribute. Such a defendant is also responsible for those quantities of the controlled substance that fellow conspirators manufactured or distributed, or agreed to manufacture or distribute, if you find that the defendant could have reasonably foreseen, at the time that he joined the conspiracy or while the conspiracy lasted, that those prohibited acts were a necessary or natural consequence of the conspiracy.

        A defendant guilty of manufacturing “pure” methamphetamine, as charged in Count 2 of the indictment and explained in Final Jury Instruction No. 7, under one or more of the alternatives explained in Final Jury Instructions Nos. 8, 9, and 10, is responsible for the methamphetamine that he personally manufactured, attempted to manufacture, or aided and abetted another in an attempt to manufacture.

        You must determine the total quantity of methamphetamine for which the defendant can be held responsible in terms of grams of “pure” methamphetamine or a methamphetamine mixture, then indicate in the Verdict Form the range within which that total quantity falls. Thus, for Count 1, you must determine whether the defendant conspired to manufacture or distribute five grams or more or less than five grams of “pure” methamphetamine, or fifty grams or more or less than fifty grams of a methamphetamine mixture. For Count 2, you must determine whether the defendant manufactured, attempted to manufacture, or aided and abetted another in an attempt to manufacture five grams or more or less than five grams of “pure” methamphetamine.

        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 28.34 grams.

        Again, you must make your determinations of the controlled substance or substances involved in an offense and the quantity of such controlled substances beyond a reasonable doubt.


FINAL INSTRUCTION NO. 13 - PRIOR SIMILAR CONDUCT

 

 

 

        You have heard evidence that the defendant allegedly possessed materials associated with the manufacturing of methamphetamine on June 25, 1999, and September 11, 2000. You may not use this evidence to decide whether the defendant carried out the acts involved in the crimes charged in the indictment. However, if you are convinced beyond a reasonable doubt, based on other evidence introduced, that the defendant did carry out the acts involved in the crime charged in the indictment, then you may use this evidence to decide the defendant’s knowledge, intent, plan, and motive.

        Remember, even if you find that the defendant may have committed similar acts in the past, evidence of those acts is not evidence that he committed such an act in this case. You may not convict a person simply because you believe he may have committed similar acts in the past. The defendant is on trial only for the crimes charged in the indictment, not for anything else, and you may consider the evidence of prior acts only on the issue of the defendant’s knowledge, intent, plan, and motive.


FINAL INSTRUCTION NO. 14 - 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 witnesses Brent Bast, J.D. Starkey, and Susan Marsolek 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.

        Similarly, you have heard evidence that Brent Bast, J.D. Starkey, and Susan Marsolek have pleaded guilty to charges that arose out of the same events for which the defendant is now on trial. You cannot consider such a witness’s guilty plea as any evidence of the guilt of the defendant. Rather, you can consider such a witness’s guilty plea only for the purpose of determining how much, if at all, to rely upon that witness’s testimony.

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

1.You have heard evidence that Brent Bast, J.D. Starkey, and Susan Marsolek are testifying pursuant to plea agreements and hope to receive a reduction in their sentences in return for their cooperation with the government in this case. If the U.S. Attorney believes that a witness has provided “substantial assistance,” the U.S. Attorney can file a motion to reduce the witness’s sentence. The judge has no power to reduce a sentence for such a witness for substantial assistance unless the U.S. Attorney files a motion requesting such a reduction. If the motion for reduction of sentence for substantial assistance is filed by the U.S. Attorney, then it is up to the judge to decide whether to reduce the sentence of that witness at all, and if so, how much to reduce it. You may give the testimony of such 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.

2.You have heard evidence that Brent Bast, J.D. Starkey, and Susan Marsolek participated in the crimes charged against the defendant. Their testimony was received in evidence and you may consider it. You may give the testimony of such witnesses such weight as you think it deserves. Whether or not testimony of a witness may have been influenced by his or her desire to please the government or to strike a good bargain with the government about his or her own situation is for you to 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. 15 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF

 

 

        Michael Vieth 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 Mr. Vieth throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to defendant Vieth only if the prosecution proves, beyond a reasonable doubt, all of the element of an offense 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. 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. 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. 16 - 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. 17 - 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 offense, and if all of you reach that conclusion, then the verdict of the jury must be guilty for the defendant on that offense. As I instructed you earlier, the burden is upon the prosecution to prove beyond a reasonable doubt every essential element of each crime charged. Therefore, you must give separate consideration to each offense charged against the defendant and you must reach a unanimous verdict on each charge.

        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. 18 - 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 Michael Vieth 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 on each charge, 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. 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 November, 2003.

 

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                                                    __________________________________

                                                    MARK W. BENNETT

                                                    CHIEF JUDGE, U. S. DISTRICT COURT

                                                    NORTHERN DISTRICT OF IOWA


IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION


UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 01-3027-MWB

vs.


VERDICT FORM

MICHAEL VIETH,

Defendant.

____________________


        We, the Jury, unanimously find as follows:

COUNT 1: CONSPIRACY

VERDICT

Step 1:

On the charge of conspiracy, as charged in Count 1 of the indictment and explained in Final Jury Instruction No. 4, please mark your verdict. (If you find the defendant “guilty,” please consider the remaining “step” in this section; however, if you find the defendant “not guilty,” do not consider the questions in step 2.)

____ Not Guilty

____ Guilty


Step 2:

If you have found the defendant guilty of this offense, please indicate (a) which controlled substance or controlled substances and (b) what prohibited conduct involving that substance or those substances were the objectives of the conspiracy, and then indicate (c) the quantity of the substance or substances involved in the conspiracy for which you find beyond a reasonable doubt that the defendant can be held responsible. (For purposes of your determinations on (a) and (b), the objectives of the conspiracy are explained in Final Jury Instruction No. 5. For purposes of your determination on (c), determination of drug quantity is explained in Final Jury Instruction No. 12.).

(a)

Controlled substance


_____ “Pure” methamphetamine


_____ A methamphetamine mixture

(b)

Conduct

___Manufacturing

___Distribution

___ Manufacturing

___ Distribution

(c)

Quantity

___ 5 grams or more

___ 5 grams or more

___ 50 grams or more

___ 50 grams or more

___ Less than 5 grams

___ Less than 5 grams

___ Less than 50 grams

___ Less than 50 grams

COUNT 2: MANUFACTURING

VERDICT

Step 1:

On the charge of manufacturing methamphetamine, as charged in Count 2 of the indictment and explained in Final Jury Instruction No. 7, please mark your verdict. (If you find the defendant “guilty,” please consider the remaining “step” in this section; however, if you find the defendant “not guilty,” do not consider the questions in step 2.)

____ Not Guilty

____ Guilty

Step 2:

If you have found the defendant guilty of this offense, please indicate (a) on which alternative or alternatives you find him guilty, and (b) the quantity of “pure” methamphetamine involved in this offense for which you find beyond a reasonable doubt that the defendant can be held responsible. (Determination of drug quantity, as required in (b), is explained in Final Jury Instruction No. 12.)

(a)

Alternative

___ Personal commission

(as explained in Final Jury Instruction No. 8)

___ Attempt

(as explained in Final Jury Instruction No. 9)

___ Aiding and abetting

(as explained in Final Jury Instruction No. 10)

(b)

Quantity

_____ 5 grams or more of “pure” methamphetamine

_____ Less than 5 grams of pure methamphetamine

COUNT 3: POSSESSION WITH INTENT TO DISTRIBUTE

VERDICT

 

On the charge of possession of a methamphetamine mixture with intent to distribute it, as charged in Count 3 and explained in Final Jury Instruction No. 11, please mark your verdict.

____ Not Guilty

____ Guilty






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