IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 02-0028-MWB

vs.



PRELIMINARY AND FINAL

INSTRUCTIONS

TO THE JURY

EDWARD LEE WILLIAMS,
Defendant.

____________________





TABLE OF CONTENTS

PRELIMINARY INSTRUCTIONS 1

NO. 1 - PRELIMINARY INSTRUCTIONS 1

NO. 2 - DUTY OF JURORS 2

NO. 3 - ELEMENTS OF THE OFFENSE 3

NO. 4 - OUTLINE OF TRIAL 6

NO. 5 - PRESUMPTION OF INNOCENCE 7

NO. 6 - REASONABLE DOUBT 8

NO. 7 - DEFINITION OF EVIDENCE 9

NO. 8 - CREDIBILITY OF WITNESSES 10

NO. 9 - BENCH CONFERENCES AND RECESSES 12

NO. 10 - OBJECTIONS 13

NO. 11 - NOTE-TAKING 14

NO. 12 - CONDUCT OF THE JURY 15

FINAL INSTRUCTIONS 17

NO. 1 - INTRODUCTION 17

NO. 2 - "INTENT" AND "KNOWLEDGE" 18

NO. 3 - "POSSESSION," "DISTRIBUTION" AND "DELIVERY" 19

NO. 4 - DISTRIBUTION OF CRACK COCAINE 21

NO. 5 - "PERSONAL COMMISSION" ALTERNATIVE 22

NO. 6 - "AIDING AND ABETTING" ALTERNATIVE 23

NO. 7 - MERE PRESENCE 25

NO. 8 - IMPEACHMENT 26

NO. 9 - IDENTIFICATION TESTIMONY 28

NO. 10 - TRANSCRIPT OF TAPE-RECORDED CONVERSATION 30

NO. 11 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF 31

NO. 12 - REASONABLE DOUBT 32

NO. 13 - DUTY TO DELIBERATE 33

NO. 14 - DUTY DURING DELIBERATIONS 35





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 crime charged against him. You will find the facts from the evidence. You are entitled to consider that evidence in light of your own observations and experiences. You may use reason and common sense to draw conclusions from facts that have been established by the evidence. You will then apply the law, which I will give you in my instructions, to the facts to reach your verdict. You are the sole judges of the facts; but you must follow the law as stated in my instructions, whether you agree with it or not.

Do not allow sympathy or prejudice to influence you. The law demands of you a just verdict, based solely on the evidence, your common sense, and the law as I give it to you. Do not take anything I may say or do during the trial as indicating what I think of the evidence or what I think your verdict should be. Similarly, do not conclude from any ruling or other comment I may make that I have any opinions on how you should decide the case.

Please remember that only defendant Edward Lee Williams, not anyone else, is on trial here. Also, remember that this defendant is on trial only for the crime charged against him, not for anything else.

You must return a separate, unanimous verdict on the charge against the defendant.

PRELIMINARY INSTRUCTION NO. 3 - ELEMENTS OF THE OFFENSE



The offense charged in this case, and each alternative for conviction of that offense, consists of "elements," which the prosecution must prove beyond a reasonable doubt in order to convict the defendant of that offense. To help you follow the evidence, I will give you a summary of the elements of the offense charged in the indictment. However, I must first explain some preliminary matters.

The charge against the defendant is set out in an indictment. An indictment is simply an accusation. It is not evidence of anything. The defendant has pleaded not guilty to the charge brought against him; therefore, he is presumed to be innocent unless and until the prosecution proves his guilt beyond a reasonable doubt on that charge.

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. Cocaine base, or "crack cocaine" as it is commonly called, is a "controlled substance."

The indictment charges that the distribution offense charged in this case was committed "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. Also, the indictment charges that the defendant distributed a specific amount of crack cocaine. The prosecution does not have to prove that the offense involved the amount or quantity of crack cocaine charged in the indictment, but the prosecution must prove, and you must determine, that the controlled substance in question was in fact crack cocaine as charged in the indictment.

I will now give you a summary of the elements of the offense charged in the indictment.



DISTRIBUTION OF CRACK COCAINE

The indictment charges that, on or about July 18, 2001, Mr. Williams knowingly and intentionally distributed approximately 1.42 grams of a mixture or substance containing a detectable amount of cocaine base, commonly known as "crack cocaine." The government contends that Mr. Williams can be found guilty of this offense under either or both of the following two alternatives: (1) personally committing the offense, and (2) aiding and abetting another in the commission of the offense.

First alternative: Personal commission

For you to find Mr. Williams guilty of personally committing the offense of distributing crack cocaine, as charged in the indictment, the government must prove the following two essential elements beyond a reasonable doubt as to him:

One, on or about July 18, 2001, Mr. Williams intentionally distributed crack cocaine to another.

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

Second alternative: Aiding and abetting

A person may also be found guilty of distribution of crack cocaine even if that person did not personally do every act constituting the offense, if that person aided and abetted the commission of the offense. For you to find the defendant guilty of distribution of crack cocaine under this aiding and abetting alternative, the prosecution must prove the following five elements beyond a reasonable doubt:

One, on or about July 18, 2001, some person or persons committed the offense of distribution of crack cocaine.

Two, Mr. Williams knew that the distribution of crack cocaine was being committed or was going to be committed.

Three, Mr. Williams knowingly acted in some way for the purpose of causing, encouraging, or aiding the distribution of crack cocaine.

Four, the defendant knew that what was being distributed or going to be distributed was a controlled substance.

Five, the defendant intended that some or all of the crack cocaine would be distributed to another person.



This is only a preliminary outline of the elements of the alternatives for conviction of the offense of "distribution of crack cocaine" charged in the indictment. At the end of the trial, I will give you final written instructions on the elements of these alternatives. Because they are more detailed, those final instructions govern on the elements of the alternatives of the offense 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 Edward Lee Williams is presumed innocent and, therefore, not guilty. This presumption of innocence requires you to put aside all suspicion that might arise from the arrest or charge of the defendant or the fact that he is here in court. The presumption of innocence remains with the defendant throughout the trial. That presumption alone is sufficient to find him not guilty. The presumption of innocence may be overcome as to the defendant only if the prosecution proves, beyond a reasonable doubt, each element of an alternative of the crime charged against him.

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

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



Evidence is:

1. Testimony.

2. Exhibits that I admit into evidence.

3. Stipulations, which are agreements between the parties.

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

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

The fact that an exhibit may be shown to you does not mean that you must rely on it more than you rely on other evidence.

The following are not evidence:

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

2. Objections and rulings on objections.

3. Testimony I tell you to disregard.

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

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

PRELIMINARY INSTRUCTION NO. 8 - CREDIBILITY OF WITNESSES



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

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

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

Ordinarily, witnesses may only testify to factual matters within their personal knowledge. However, you may hear evidence from persons described as experts. Persons may become qualified as experts in some field by knowledge, skill, training, education, or experience. Such experts may state their opinions on matters in that field and may also state the reasons for their opinions. You should consider expert testimony just like any other testimony. You may believe all of what an expert says, only part of it, or none of it, considering the expert's qualifications, the soundness of the reasons given for the opinion, the acceptability of the methods used, any reason the expert may be biased, and all of the other evidence in the case.

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

PRELIMINARY INSTRUCTION NO. 9 - BENCH

CONFERENCES AND RECESSES







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



PRELIMINARY INSTRUCTION NO. 10 - OBJECTIONS



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

PRELIMINARY INSTRUCTION NO. 11 - NOTE-TAKING



If you want to take notes during the trial, you may, but be sure that your note-taking does not interfere with listening to and considering all the evidence. If you choose not to take notes, remember it is your own individual responsibility to listen carefully to the evidence.

Notes you take during the trial are not necessarily more reliable than your memory or another juror's memory. Therefore, you should not be overly influenced by the notes.

If you take notes, do not discuss them with anyone before you begin your deliberations. At the end of each day, please leave your notes on your chair. At the end of the trial, you may take your notes out of the notebook and keep them, or leave them, and we will destroy them. No one will read the notes, either during or after the trial.

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

PRELIMINARY INSTRUCTION NO. 12 - CONDUCT OF THE JURY



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

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

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

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

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

Fifth, do not read any news stories or articles about the case, or about anyone involved with it, or listen to any radio or television reports about the case or about anyone involved with it. If you want, you can have your spouse or a friend clip out any stories and set them aside to give you after the trial is over. I can assure you, however, that by the time you have heard the evidence in this case you will know more about the matter than anyone will learn through the news media.

Sixth, do not do any research 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 8th day of July, 2002.



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 both alternatives for conviction on the offense charged in this case and must be proved beyond a reasonable doubt. "Intent" and "knowledge" may be proved like anything else. An act is done "knowingly" if the defendant is aware of the act and does not act through ignorance, mistake, or accident. The prosecution is not required to prove that the defendant knew that his acts or omissions were unlawful.

FINAL INSTRUCTION NO. 3 - "POSSESSION," "DISTRIBUTION"

AND "DELIVERY"





The charge of "distribution of crack cocaine" involves the transfer of possession of crack cocaine. 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, in addition to knowledge of the presence of the thing, the prosecution must establish that, at the same time, (a) the person intended to exercise control over the thing or place in which it was found; (b) the person had the power to exercise control over the thing or place in which it was found; and (c) the person knew that he had the power to exercise control over the thing or place in which it was found.

Therefore, 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 or was intended to be a "sale" of a controlled substance to prove "distribution."

FINAL INSTRUCTION NO. 4 - DISTRIBUTION

OF CRACK COCAINE





The indictment charges that, on or about July 18, 2001, Mr. Williams knowingly and intentionally distributed approximately 1.42 grams of a mixture or substance containing a detectable amount of cocaine base, commonly known as "crack cocaine." As I explained to you in the Preliminary Jury Instructions, the government contends that Mr. Williams can be found guilty of this offense under either or both of the following two alternatives: (1) personally committing the offense, and (2) aiding and abetting another in the commission of the offense. I will now explain the elements of each of these alternatives.



FINAL INSTRUCTION NO. 5 - "PERSONAL COMMISSION"

ALTERNATIVE





For you to find Mr. Williams guilty of personally committing the offense of distributing crack cocaine, as charged in the indictment, the government must prove the following two essential elements beyond a reasonable doubt as to him:

One, on or about July 18, 2001, Mr. Williams intentionally distributed a controlled substance to another.

"Intent" was defined for you in Final Instruction No. 2. "Distribution" was defined for you in Final Instruction No. 3.



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.



For you to find Mr. Williams guilty of the "distribution of crack cocaine" under this "personal commission" alternative, the prosecution must prove both of these essential elements beyond a reasonable doubt. Otherwise, you must find him not guilty of "distribution of crack cocaine" under this alternative.

FINAL INSTRUCTION NO. 6 - "AIDING AND ABETTING"

ALTERNATIVE





A person may also be found guilty of distribution of crack cocaine even if that person did not personally do every act constituting the offense, if that person aided and abetted the commission of the offense. For you to find the defendant guilty of distribution of crack cocaine under this aiding and abetting alternative, the prosecution must prove the following five elements beyond a reasonable doubt:

One, on or about July 18, 2001, some person or persons committed the offense of distribution of crack cocaine.

The prosecution must first prove beyond a reasonable doubt that all of the essential elements of personally committing the distribution of crack cocaine, as explained in Final Jury Instruction No. 5, were committed by some person or persons on or about the date alleged in the indictment. It is not necessary that the other person or persons be convicted or even identified.



Two, Mr. Williams knew that the distribution of crack cocaine was being committed or was going to be committed.

"Knowledge" was defined for you in Final Jury Instruction No. 2.



Three, Mr. Williams knowingly acted in some way for the purpose of causing, encouraging, or aiding the distribution of crack cocaine.

The prosecution must prove that the defendant both knew that the offense was being committed and acted in some way that advanced it.



Four, Mr. Williams knew that what was being distributed or going to be distributed was a controlled substance.

"Knowledge" was defined for you in Final Instruction No. 2. Additionally, the aider and abettor need not know what the controlled substance is, if he knows that the person personally committing the offense is distributing some controlled substance.



Five, Mr. Williams intended that some or all of the crack cocaine would be distributed to another person.

"Intent" was defined for you in Final Instruction No. 2. "Distribution" was defined for you in Final Instruction No. 3.



If the prosecution has failed to prove all five of these elements beyond a reasonable doubt as to the defendant, then you cannot find him guilty of the "distribution of crack cocaine" under the "aiding and abetting" alternative.

FINAL INSTRUCTION NO. 7 - MERE PRESENCE



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 personally committed or aided and abetted the commission of an offense. A person who has no knowledge that a crime is being committed or about to be committed, but who happens to act in a way that advances some offense, does not thereby become criminally liable for that offense.

Furthermore, mere proof that a defendant knew that another person was distributing crack cocaine in his presence does not establish that the defendant either personally committed or aided and abetted the commission of the offense. Rather, the prosecution must establish some degree of knowing involvement and cooperation or participation in the offense. Therefore, if you find that defendant Williams knew of the distribution of crack cocaine by another person in his presence, but did not knowingly become involved and cooperate or participate in such an illegal act, then you cannot find him guilty of distribution of crack cocaine. However, if you find that he both knew of the illegal act and became involved and cooperated or participated in such an act, then you may find him guilty of distribution of crack cocaine.

FINAL INSTRUCTION NO. 8 - IMPEACHMENT



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

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

You have heard evidence that witness James Kimpton has been convicted of a crime. You may use that evidence only to help you decide whether or not to believe his testimony and how much weight to give it.

You have also heard evidence that defendant Edward Lee Williams was convicted of delivery of a controlled substance on March 1, 1996, in the Iowa District Court in and for Linn County. You may not use this evidence to decide whether the defendant carried out the acts involved in the crime charged in the indictment in this case. 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 and intent in committing those acts. Remember, even if you find that the defendant may have committed a similar act in the past, this 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 crime charged in this case, and you may consider the evidence of prior acts only on the issue of the defendant's knowledge and intent.

You have also heard evidence that witness James Kimpton has an arrangement with the government under which he receives benefits for providing information to the government. You should treat the testimony of such a witness with greater caution and care than that of other witnesses. However, his testimony was received in evidence and may be considered by you. You may give his testimony such weight as you think it deserves. Whether or not his testimony may have been influenced by such benefits is for you to determine.

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

FINAL INSTRUCTION NO. 9 - IDENTIFICATION TESTIMONY



The value of identification testimony depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later. In evaluating such testimony you should consider all of the factors mentioned in these instructions concerning your assessment of the credibility of any witness, and you should also consider, in particular, whether the witness had an adequate opportunity to observe the person in question at the time of the offense. You may consider, in that regard, such matters as the length of time the witness had to observe the person in question, the prevailing conditions at that time in terms of visibility or distance and the like, and whether the witness had known or observed the person at earlier times.

You should also consider whether the identification made by the witness after the offense was the product of his or her own recollection. You may consider, in that regard, the strength of the identification, and the circumstances under which the identification was made, and the length of time that elapsed between the occurrence of the crime and the next opportunity the witness had to see defendant. You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness. If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to the witness for identification, you should scrutinize the identification with great care.

The prosecution has the burden of proving identity beyond a reasonable doubt. It is not essential that the witness be free from doubt as to the correctness of the identification. However you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may find him guilty. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

FINAL INSTRUCTION NO. 10 - TRANSCRIPT OF

TAPE-RECORDED CONVERSATION





You have heard a tape recording accompanied by a typed transcript. The transcript undertook to identify the speakers engaged in the conversation. You were permitted to view the transcript for the limited purpose of helping you follow the conversation as you listened to the tape recording, and also to help you keep track of the speakers. The transcript, however, is not evidence. A tape recording itself is the primary evidence of its own contents.

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

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

FINAL INSTRUCTION NO. 11 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF





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

The burden is always upon the prosecution to prove guilt beyond a reasonable doubt. This burden never shifts to 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 defendant Williams 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 defendant Williams has committed each and every element of an alternative of the offense charged in the indictment against him--either personally committing the charged offense, aiding and abetting another in the commission of the charged offense, or both--you must find him not guilty of that offense.

FINAL INSTRUCTION NO. 12 - 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. 13 - DUTY TO DELIBERATE





A verdict must represent the considered judgment of each juror. Your verdict must be unanimous. It is your duty to consult with one another and to deliberate with a view to reaching agreement if you can do so without violence to your individual judgment. Of course, you must not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinions of other jurors or for the mere purpose of returning a verdict. Each of you must decide the case for yourself; but you should do so only after consideration of the evidence with your fellow jurors.

In the course of your deliberations you should not hesitate to re-examine your own views, and to change your opinion if you are convinced it is wrong. To bring twelve minds to an unanimous result, you must examine the questions submitted to you openly and frankly, with proper regard for the opinions of others and with a willingness to re-examine your own views.

Remember that if, in your individual judgment, the evidence fails to establish the defendant's guilt beyond a reasonable doubt on an offense charged against him, then the defendant should have your vote for a not guilty verdict on that offense. If all of you reach the same conclusion, then the verdict of the jury must be not guilty for the defendant on that offense. Of course, the opposite also applies. If, in your individual judgment, the evidence establishes the defendant's guilt beyond a reasonable doubt on an offense charged, then your vote should be for a verdict of guilty against the defendant on that charge, and if all of you reach that conclusion, then the verdict of the jury must be guilty for the defendant on that charge. As I instructed you earlier, the burden is upon the prosecution to prove beyond a reasonable doubt every essential element of a crime charged.

Remember also that the question before you can never be whether the government wins or loses the case. The government, as well as society, always wins, regardless of whether your verdict is not guilty or guilty, when justice is done.

Finally, remember that you are not partisans; you are judges--judges of the facts. Your sole interest is to seek the truth from the evidence. You are the judges of the credibility of the witnesses and the weight of the evidence.

You may conduct your deliberations as you choose. However, I suggest that you carefully consider all of the evidence bearing upon the questions before you. You may take all the time that you feel is necessary.

There is no reason to think that another trial would be tried in a better way or that a more conscientious, impartial, or competent jury would be selected to hear it. Any future jury must be selected in the same manner and from the same source as you. If you should fail to agree on a verdict, the case is left open and must be disposed of at some later time.

FINAL INSTRUCTION NO. 14 - 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 Edward Lee Williams in any way in deciding whether the prosecution has proved its case beyond a reasonable doubt.

Third, if you need to communicate with me during your deliberations, you may send a note to me through the Court Security Officer, signed by one or more jurors. I will respond as soon as possible, either in writing or orally in open court. Remember that you should not tell anyone--including me--how your votes stand numerically.

Fourth, your verdict must be based solely on the evidence and on the law in these instructions. The verdict, whether not guilty or guilty, must be unanimous. Nothing I have said or done is intended to suggest what your verdict should be--that is entirely for you to decide.

Finally, I am giving you the verdict form. A verdict form is simply the written notice of the decision that you reach in this case. Your verdict must be unanimous. You will take the verdict form to the jury room. When you have reached a unanimous verdict, your foreperson must complete one copy of the verdict form and all of you must sign that copy to record your individual agreement with the verdict and to show that it is unanimous. The foreperson must bring the signed verdict form to the courtroom when it is time to announce your verdict. When you have reached a verdict, the foreperson will advise the Court Security Officer that you are ready to return to the courtroom.

DATED this 9th day of July, 2002.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION





UNITED STATES OF AMERICA,
Plaintiff,

No. CR 02-0028-MWB

vs.



VERDICT FORM

EDWARD LEE WILLIAMS,
Defendant.

____________________





We, the Jury, unanimously find defendant Edward Lee Williams not guilty or guilty as follows:

"DISTRIBUTION OF CRACK COCAINE" VERDICT
Step 1: On the charge of "distribution of crack cocaine," as charged in the indictment, please mark your verdict. ____ Not Guilty

____ Guilty

Step 2: If you have found defendant Edward Lee Williams guilty of this offense, please indicate the alternative or alternatives on which you find him guilty.
_____ Personally committing the offense, as explained in Final Jury Instruction No. 5
_____ Aiding and abetting another in the commission of the offense, as explained in Final Jury Instruction No. 6






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