IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF IOWA

CENTRAL DIVISION



UNITED STATES OF AMERICA,

 

Plaintiff,

No. CR 04-3004-MWB

vs.

PRELIMINARY AND

FINAL INSTRUCTIONS

TO THE JURY

LANCE DUANE MESSERLY,

Defendant.

____________________



TABLE OF CONTENTS

 

PRELIMINARY INSTRUCTIONS

NO. 1 - PRELIMINARY INSTRUCTIONS

NO. 2 - DUTY OF JURORS

NO. 3 - REQUIREMENTS FOR PROOF: PRELIMINARY

MATTERS

NO. 4 - REQUIREMENTS FOR PROOF: COUNT 1: DRUG USER

IN POSSESSION OF A FIREARM

NO. 5 - REQUIREMENTS FOR PROOF: COUNT 2: DRUG USER

IN POSSESSION OF AN EXPLOSIVE

NO. 6 - REQUIREMENTS FOR PROOF: COUNT 3: DRUG USER

IN POSSESSION OF AMMUNITION

NO. 7 - PRESUMPTION OF INNOCENCE

NO. 8 - REASONABLE DOUBT

NO. 9 - OUTLINE OF TRIAL

NO. 10 - DEFINITION OF EVIDENCE

NO. 11 - CREDIBILITY OF WITNESSES

NO. 12 - BENCH CONFERENCES AND RECESSES

NO. 13 - OBJECTIONS

NO. 14 - NOTE-TAKING

NO. 15 - CONDUCT OF THE JURY

 

FINAL INSTRUCTIONS

NO. 1 - INTRODUCTION

NO. 2 - “KNOWLEDGE”

NO. 3 - “POSSESSION”

NO. 4 - COUNT 1: DRUG USER IN POSSESSION OF A

FIREARM

NO. 5 - COUNT 2: DRUG USER IN POSSESSION OF AN

EXPLOSIVE

NO. 6 - COUNT 3: DRUG USER IN POSSESSION OF

AMMUNITION

NO. 7 - IMPEACHMENT

NO. 8 - PRESUMPTION OF INNOCENCE AND BURDEN OF

PROOF

NO. 9 - REASONABLE DOUBT

NO. 10 - DUTY TO DELIBERATE

NO. 11 - 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 Lance Duane Messerly, 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. Therefore, you must return a separate, unanimous verdict on each charge against the defendant.


PRELIMINARY INSTRUCTION NO. 3 - REQUIREMENTS FOR PROOF:

PRELIMINARY MATTERS

 

 

 

        To help you follow the evidence, I will now give you a summary of the requirements for proof of the offense charged in the Indictment, beginning with some preliminary matters.

        “Elements”

        First, the offenses charged in this case each consist of “elements,” which the prosecution must prove beyond a reasonable doubt in order to convict the defendant of that offense. I will summarize in the following instructions the elements of the offenses with which the defendant is charged.

        Timing

        Second, the Indictment alleges that each offense was committed “on or about” a certain date. The prosecution does not have to prove with certainty the exact date of the offense charged. It is sufficient if the evidence establishes that the offense occurred within a reasonable time of the date alleged in the Indictment.

        “Controlled substances”

        Third, 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. Both marijuana and cocaine are “controlled substances.”

        “Unlawful user” of controlled substances

        Fourth, Counts 1, 2, and 3 charge that defendant Messerly was an “unlawful user” of one or more controlled substances during the time of those offenses. The prosecution does not need to prove that the defendant was actually using or addicted to drugs at the exact moment he possessed the firearms, explosives, or ammunition in question in a particular Count in order to prove that the defendant was an “unlawful user” in possession of that firearm, explosive, or ammunition. The prosecution must only prove that the defendant was an “unlawful user” or addicted to a controlled substance during the time that he possessed the firearm, explosive, or ammunition in question. Also, it is not enough if his use of a controlled substance was infrequent, only an isolated incident, or in the distant past. Instead, the defendant’s unlawful use of a controlled substance must be consistent and prolonged, as well as contemporaneous with the possession of the firearm, explosive, or ammunition in question in a particular count. That means that the defendant’s unlawful use must have occurred recently enough to indicate that he was actively engaged in such conduct at the time that he possessed the firearm, explosive, or ammunition in question. Also, where the Indictment charges that defendant Messerly was an”unlawful user” of more than one controlled substance during the time of the prohibited possession, it would be sufficient if the prosecution proves, beyond a reasonable doubt, that defendant Messerly was an “unlawful user” of any one of those controlled substances.

        * * *

        I will now give you more specific instructions about the offenses charged in the Indictment. However, please remember that these instructions on the charged offenses provide only a preliminary outline of the requirements for proof of these offenses. At the end of the trial, I will give you final written instructions on these matters. Because the final written instructions are more detailed, you should rely on those final instructions, rather than these preliminary instructions, where there is a difference.


PRELIMINARY INSTRUCTION NO. 4 - REQUIREMENTS FOR PROOF:

COUNT 1: DRUG USER IN POSSESSION OF A FIREARM

 

 

 

        Count 1 of the Indictment charges that, on or about August 8, 2002, Mr. Messerly, then being an unlawful user of marijuana and cocaine, knowingly and unlawfully possessed one or more firearms. Mr. Messerly denies this charge.

 

        Elements Of The Offense

        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 August 8, 2002, defendant Messerly knowingly possessed one or more firearms;

        Two, during the time that defendant Messerly possessed the firearm, he was an unlawful user of a controlled substance, either marijuana, cocaine, or both; and

        Three, at some time during or before defendant Messerly’s possession of the firearm, the firearm was transported across a state line.

 

        Firearms at issue

        In this Count, the Grand Jury charges that defendant Messerly possessed one or more of the following firearms:

1.A Marlin, model 70P, .22 caliber rifle, serial number 07312866

 

2.A Smith and Wesson, model 29-3, .44 caliber magnum revolver, bearing serial number AEB7457

 

3.An Ivers Johnson, model Super Shot, .22 caliber revolver, serial number 9300

 

4.A Remington, model Mohawk-600, .308 caliber bolt-action rifle, bearing serial number 6695935

 

5.A Winchester, model 1904, .22 caliber (short) bolt-action single-shot rifle

 

6.A Winchester, model 06, .22 caliber pump rifle, serial number 805880

 

7.A Remington, model 11, 12-gauge semi-automatic shotgun, bearing serial number 259481

 

8.A Winchester, model 1200, 12-gauge pump shotgun, serial number L1100804A

 

9.A Savage Arms, model 511, 12-gauge double-barrel shotgun, serial number C013054

 

10.A Ruger, .22 caliber pistol, serial number 17-29324

 

11.A SKS, Chinese manufacture, 7.62 x 39 caliber semi-automatic rifle, bearing serial number 24011641, imported by Hing Long Co., Napa, CA.

 

12.A Marlin, Glenfield model 20, .22 caliber bolt-action rifle, serial number 21617455

 

13.A Winchester, model 1500XTR, 12-gauge semi-automatic shotgun, serial number NX003443

 

14.A J.C. Higgins/Sears Roebuck and Co., model 20, 12-gauge pump shotgun

 

15.P-38, 9 mm caliber pistol, serial number 8961B, with Nazi Germany markings including “ac 45”

 

16.A K-Mart/Companhia Brasileira De Cartuchos, model 154, .410 single-shot shotgun, serial number 854612

 

17.A New England Arms, Pardner model, .410 single-shot break-over shotgun, serial number 362090

 

18.A Davis Industries, model DM-22, .22 caliber/.22 caliber magnum derringer, serial number 332630

 

19.A Harrington and Richardson, model 929/sidekick, .22 caliber revolver, serial number U7663

 

20.A Bushmaster, model XM15-E2S, .223 caliber semi-automatic rifle, bearing serial number L062835

 

The prosecution does not need to prove that the defendant was in possession of more than one of the firearms identified in the Indictment; rather, it is sufficient if the prosecution proves that he was in possession of any one or more of those firearms.


PRELIMINARY INSTRUCTION NO. 5 - REQUIREMENTS FOR PROOF:

COUNT 2: DRUG USER IN POSSESSION OF AN EXPLOSIVE

 

 

 

        Count 2 of the Indictment charges that, on or about August 8, 2002, Mr. Messerly, then being an unlawful user of marijuana and cocaine, knowingly and unlawfully possessed blasting caps.

        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 August 8, 2002, defendant Messerly knowingly possessed an explosive, that is, one or more blasting caps;

        Two, during the time that defendant Messerly possessed the explosive, he was an unlawful user of a controlled substance, either marijuana, cocaine, or both; and

        Three, at some time during or before defendant Messerly’s possession of the explosive, the explosive was transported across a state line.


PRELIMINARY INSTRUCTION NO. 6 - REQUIREMENTS FOR PROOF:

COUNT 3: DRUG USER IN POSSESSION OF AMMUNITION

 

 

 

        Count 3 of the Indictment charges that, on or about April 16, 2004, Mr. Messerly, then being an unlawful user of marijuana, knowingly and unlawfully possessed one or more rounds of ammunition.

 

        Elements Of The Offense

        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 April 16, 2004, defendant Messerly knowingly possessed one or more rounds of ammunition;

        Two, during the time that defendant Messerly possessed the ammunition, he was an unlawful user of a controlled substance, that is, marijuana; and

        Three, at some time during or before defendant Messerly’s possession of the ammunition, the ammunition was transported across a state line.

 

        Ammunition at issue

        In this Count, the Grand Jury charges that defendant Messerly possessed one or more of the following types and quantities of ammunition:

1.One or more 9 mm ammunition rounds

 

2.Ten (10) 12-gauge ammunition rounds

 

3.Fifty (50) .22 caliber ammunition rounds

 

4.Two (2) .410 ammunition rounds

 

The prosecution does not need to prove that the defendant was in possession of more than one of type of ammunition or more than one round of ammunition; rather, it is sufficient if the prosecution proves that he was in possession of a single round of a single type of ammunition.


PRELIMINARY INSTRUCTION NO. 7 - 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 Lance Duane Messerly has pled 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 a particular charge against the defendant only if the prosecution proves, beyond a reasonable doubt, all of the elements of that crime 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 against him in the Indictment, you must find him not guilty of that offense.


PRELIMINARY INSTRUCTION NO. 8 - REASONABLE DOUBT

 

 

        A reasonable doubt may arise from the evidence produced by either the prosecution or the defense, 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. 9 - 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. 10 - 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 merely by the number of witnesses testifying as to the existence or non-existence of any fact. Also, the weight of the evidence is not 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 merely 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. 11 - 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 any more or less weight or credence to such a witness’s testimony than you give to any other witness’s testimony.


PRELIMINARY INSTRUCTION NO. 12 - BENCH

CONFERENCES AND RECESSES

 

 

 

        During the trial it may be necessary for me to talk with the lawyers out of your hearing, either by having a bench conference here while you are 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. 13 - 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. 14 - 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. 15 - 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 14th day of February, 2005.

                                                     mwbjustsig.gif

 

 

 

 

 

                                                    __________________________________

                                                    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 - “KNOWLEDGE”

 

 

        “Knowledge” is an element of the offenses charged in this case and, therefore, must be proved beyond a reasonable doubt. 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.

        “Knowledge” is a mental state. It is seldom, if ever, possible to determine directly the operations of the human mind. However, “knowledge” may be proved like anything else, from reasonable inferences and deductions drawn from the facts proved by the 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.”


FINAL INSTRUCTION NO. 3 - “POSSESSION”

 

 

        The offenses charged in Counts 1, 2, and 3 involve “possession” of firearms, explosives, and ammunition, respectively. The following definition of “possession” applies in these instructions:

        The law recognizes several kinds of “possession.” A person who knowingly has direct physical control over an item, 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 an item, 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 an item, possession is “sole.” If two or more persons share actual or constructive possession of an item, possession is “joint.” Whenever the word “possession” is 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 an item was found or mere physical proximity to the item is insufficient to establish “possession” of that item. Knowledge of the presence of the item, at the same time one has control over the item or the place in which it was found, is required. Thus, in order to establish “possession” of an item, the prosecution must establish that, at the same time, (a) the person knew of the presence of the item; (b) the person intended to exercise control over the item or place in which it was found; (c) the person had the power to exercise control over the item or place in which it was found; and (d) the person knew that he had the power to exercise control over the item or place in which it was found.


FINAL INSTRUCTION NO. 4 - COUNT 1: DRUG USER

IN POSSESSION OF A FIREARM


 

 

        Count 1 of the Indictment charges that, on or about August 8, 2002, Mr. Messerly, then being an unlawful user of marijuana and cocaine, knowingly and unlawfully possess one or more firearms. Mr. Messerly denies this charge.

        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 August 8, 2002, defendant Messerly knowingly possessed one or more firearms.

“Knowledge” was defined for you in Final Instruction No. 2 and “possession” was defined for you in Final Instruction No. 3. In this count, the Grand Jury charges that defendant Messerly possessed one or more of the following firearms:

a.A Marlin, model 70P, .22 caliber rifle, serial number 07312866;

b.A Smith and Wesson, model 29-3, .44 caliber magnum revolver, bearing serial number AEB7457;

c.An Ivers Johnson, model Super Shot, .22 caliber revolver, serial number 9300;

d.A Remington, model Mohawk-600, .308 caliber bolt-action rifle, bearing serial number 6695935;

e.A Winchester, model 1904, .22 caliber (short) bolt-action single-shot rifle;

f.A Winchester, model 06, .22 caliber pump rifle, serial number 805880;

g.A Remington, model 11, 12-gauge semi-automatic shotgun, bearing serial number 259481;

h.A Winchester, model 1200, 12-gauge pump shotgun, serial number L1100804A;

i.A Savage Arms, model 511, 12-gauge double-barrel shotgun, serial number C013054;

j.A Ruger, .22 caliber pistol, serial number 17-29324;

k.A SKS, Chinese manufacture, 7.62 x 39 caliber semi-automatic rifle, bearing serial number 24011641, imported by Hing Long Co. Napa, CA;

l.A Marlin, Glenfield model 20, .22 caliber bolt-action rifle, serial number 21617455;

m.A Winchester, model 1500XTR, 12-gauge semi-automatic shotgun, serial number NX003443;

n.A J.C. Higgins/Sears Roebuck and Co., model 20, 12-gauge pump shotgun;

o.P-38, 9 mm caliber pistol, serial number 8961B, with Nazi Germany markings including “ac 45”;

p.A K-Mart/Companhia Brasileira De Cartuchos, model 154, .410 single-shot shotgun, serial number 854612;

q.A New England Arms, Pardner model, .410 single-shot break-over shotgun, serial number 362090;

r.A Davis Industries, model DM-22, .22 caliber/.22 caliber magnum derringer, serial number 332630;

s.A Harrington and Richardson, model 929/sidekick, .22 caliber revolver, serial number U7663;

t.A Bushmaster, model XM15-E2S, .223 caliber semi-automatic rifle, bearing serial number L062835.

You do not have to find that the defendant knowingly possessed all of the firearms charged in the indictment. It is an offense for an unlawful user of a controlled substance knowingly to possess a single firearm. Therefore, the prosecution does not need to prove that the defendant was in possession of more than one of the firearms identified in the indictment; it is sufficient if the prosecution proves that he was in possession of any one of those firearms. However, you must unanimously agree on which one or more firearms the defendant possessed for you to find that this element has been proved.

 

        Two, during the time that defendant Messerly possessed the firearm, he was an unlawful user of a controlled substance.

“Unlawful user” was defined for you in Preliminary Jury Instruction No. 3. The prosecution must prove that defendant Messerly was an “unlawful user” of marijuana, cocaine, or both during the time that he possessed the firearm.

 

        Three, at some time during or before defendant Messerly’s possession of the firearm, the firearm was transported across a state line.

The prosecution must prove that the firearm in question was transported across a state line. If you find beyond a reasonable doubt that the firearm in question was manufactured in a state other than Iowa, and that the defendant possessed that firearm in Iowa, then you may, but are not required to, find that the firearm was transported across a state line. The prosecution does not have to prove that the defendant knew that the firearm was transported across a state line or that the defendant was the person who transported the firearm across a state line.

 

        For you to find defendant Messerly guilty of this “drug user in possession of a firearm” offense, as charged in Count 1 of the Indictment, the prosecution must prove all of these essential elements beyond a reasonable doubt. Otherwise, you must find him not guilty of this offense.


FINAL INSTRUCTION NO. 5 - COUNT 2: DRUG USER

IN POSSESSION OF AN EXPLOSIVE


 

 

        Count 2 of the Indictment charges that, on or about August 8, 2002, Mr. Messerly, then being an unlawful user of marijuana and cocaine, knowingly and unlawfully possessed blasting caps.

        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 August 8, 2002, defendant Messerly knowingly possessed an explosive, that is, one or more blasting caps.

“Knowledge” was defined for you in Final Instruction No. 2 and “possession” was defined for you in Final Instruction No. 3. “Blasting caps” are “explosives” within the meaning of this offense. The prosecution does not need to prove that the defendant was in possession of more than one blasting cap; rather, it is sufficient if the prosecution proves that he was in possession of one or more blasting caps.

 

        Two, during the time that defendant Messerly possessed the explosive, he was an unlawful user of a controlled substance.

“Unlawful user” was defined for you in Preliminary Jury Instruction No. 3. The prosecution must prove that defendant Messerly was an “unlawful user” of marijuana, cocaine, or both during the time that he possessed the explosive.

 

 


        Three, at some time during or before defendant Messerly’s possession of the explosive, the explosive was transported across a state line

The prosecution must prove that the explosive in question was transported across a state line. If you find beyond a reasonable doubt that the explosive in question was manufactured in a state other than Iowa, and that the defendant possessed that explosive in Iowa, then you may, but are not required to, find that the explosive was transported across a state line. The prosecution does not have to prove that the defendant knew that the explosive was transported across a state line or that the defendant was the person who transported the explosive across a state line.

 

        For you to find defendant Messerly guilty of this “drug user in possession of an explosive” offense, as charged in Count 2 of the Indictment, the prosecution must prove all of these essential elements beyond a reasonable doubt. Otherwise, you must find him not guilty of this offense.


FINAL INSTRUCTION NO. 6 - COUNT 3: DRUG USER

IN POSSESSION OF AMMUNITION


 

 

        Count 3 of the Indictment charges that, on or about April 16, 2004, Mr. Messerly, then being an unlawful user of marijuana, knowingly and unlawfully possessed one or more rounds of ammunition.

        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 April 16, 2004, defendant Messerly knowingly possessed one or more rounds of ammunition.

“Knowledge” was defined for you in Final Instruction No. 2 and “possession” was defined for you in Final Instruction No. 3. In this count, the Grand Jury charges that defendant Messerly possessed one or more of the following types of ammunition:

a.One or more 9 mm ammunition rounds;

b.Ten (10) 12-gauge ammunition rounds;

c.Fifty (50) .22 caliber ammunition rounds;

d.Two (2) .410 ammunition rounds.

The prosecution does not need to prove that the defendant was in possession of more than one type of ammunition or more than one round of that type of ammunition; rather, it is sufficient if the prosecution proves that he was in possession of one or more rounds of any one or more types of ammunition.

 

 


        Two, during the time that defendant Messerly possessed the ammunition, he was an unlawful user of a controlled substance.

“Unlawful user” was defined for you in Preliminary Jury Instruction No. 3. The prosecution must prove that defendant Messerly was an “unlawful user” of marijuana during the time that he possessed the ammunition.

 

        Three, at some time during or before defendant Messerly’s possession of the ammunition, the ammunition was transported across a state line

The prosecution must prove that the ammunition in question was transported across a state line. If you find beyond a reasonable doubt that the ammunition in question was manufactured in a state other than Iowa, and that the defendant possessed that ammunition in Iowa, then you may, but are not required to, find that the ammunition was transported across a state line. The prosecution does not have to prove that the defendant knew that the ammunition was transported across a state line or that the defendant was the person who transported the ammunition across a state line.

 

        For you to find defendant Messerly guilty of this “drug user in possession of ammunition” offense, as charged in Count 3 of the Indictment, the prosecution must prove all of these essential elements beyond a reasonable doubt. Otherwise, you must find him not guilty of this offense.


FINAL INSTRUCTION NO. 7 - IMPEACHMENT

 

 

        In Preliminary Instruction No. 11, 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.”

        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.

        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. 8 - PRESUMPTION OF INNOCENCE

AND BURDEN OF PROOF

 

 

        Lance Duane Messerly 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 this 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 a particular charge against the defendant only if the prosecution proves, beyond a reasonable doubt, all of the elements of that offense 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. 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 element of a charged offense, you must find him not guilty of that offense.


FINAL INSTRUCTION NO. 9 - REASONABLE DOUBT

 

        A reasonable doubt may arise from the evidence produced by either the prosecution or the defendant, 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. 10 - 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 a particular charged offense, 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 a particular charged offense, then your vote should be for a “guilty” verdict 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 the charged offense.

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

        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. 11 - 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 defendant Lance Duane Messerly 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 against the defendant must be unaninmous. 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 16th day of February, 2005.

 

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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 04-3004-MWB

vs.


VERDICT FORM

LANCE DUANE MESSERLY,

Defendant.

____________________



        As to defendant Lance Duane Messerly, we, the Jury, unanimously find as follows:

 

COUNT 1: DRUG USER IN POSSESSION OF A FIREARM

VERDICT

Step 1:

Verdict

On the “drug user in possession of a firearm” charge in Count 1, as explained in Final Jury Instruction No. 4, please mark your verdict. (If you found the defendant “not guilty,” do not consider the questions in Steps 2 and 3. Instead, go on to consider your verdict on Count 2. However, if you found the defendant “guilty” of Count 1, please answer the questions in Steps 2 and 3 of this section of the Verdict Form.)


____ Not Guilty


____ Guilty

Step 2: Controlled substance(s)

If you found the defendant “guilty” of the “drug user in possession of a firearm” offense, please indicate whether the defendant was an “unlawful user” of marijuana, cocaine, or both.

 

___ marijuana

___ Cocaine

___ both marijuana and cocaine

Step 3:

Firearm(s)

If you found the defendant “guilty” of the “drug user in possession of a firearm” offense, please indicate which one or more of the following firearms the defendant possessed during the time that he was an “unlawful user” of controlled substances.

 

___ a. A Marlin, model 70P, .22 caliber rifle, serial number 07312866

___ b. A Smith and Wesson, model 29-3, .44 caliber magnum revolver, bearing serial number AEB7457

___ c. An Ivers Johnson, model Super Shot, .22 caliber revolver, serial number 9300

___ d. A Remington, model Mohawk-600, .308 caliber bolt-action rifle, bearing serial number 6695935

___ e. A Winchester, model 1904, .22 caliber (short) bolt-action single-shot rifle

___ f. A Winchester, model 06, .22 caliber pump rifle, serial number 805880

___ g. A Remington, model 11, 12-gauge semi-automatic shotgun, bearing serial number 259481

___ h. A Winchester, model 1200, 12-gauge pump shotgun, serial number L1100804A

___ i. A Savage Arms, model 511, 12-gauge double-barrel shotgun, serial number C013054

___ j. A Ruger, .22 caliber pistol, serial number 17-29324

___ k. A SKS, Chinese manufacture, 7.62 x 39 caliber semi-automatic rifle, bearing serial number 24011641, imported by Hing Long Co. Napa, CA

___ l. A Marlin, Glenfield model 20, .22 caliber bolt-action rifle, serial number 21617455

___ m. A Winchester, model 1500XTR, 12-gauge semi-automatic shotgun, serial number NX003443

___ n. A J.C. Higgins/Sears Roebuck and Co., model 20, 12-gauge pump shotgun

 

___ o. P-38, 9 mm caliber pistol, serial number 8961B, with Nazi Germany markings including “ac 45”

___ p. A K-Mart/Companhia Brasileira De Cartuchos, model 154, .410 single-shot shotgun, serial number 854612

___ q. A New England Arms, Pardner model, .410 single-shot break-over shotgun, serial number 362090

___ r. A Davis Industries, model DM-22, .22 caliber/.22 caliber magnum derringer, serial number 332630

___ s. A Harrington and Richardson, model 929/sidekick, .22 caliber revolver, serial number U7663

___ t. A Bushmaster, model XM15-E2S, .223 caliber semi-automatic rifle, bearing serial number L062835

COUNT 2: DRUG USER IN POSSESSION OF AN EXPLOSIVE

VERDICT

Step 1:

Verdict

On the “drug user in possession of an explosive” charge in Count 2, as explained in Final Jury Instruction No. 5, please mark your verdict. (If you found the defendant “not guilty,” do not consider the question in Step 2. Instead, go on to consider your verdict on Count 3. However, if you found the defendant “guilty” of Count 2, please answer the question in Step 2 of this section of the Verdict Form.)


____ Not Guilty


____ Guilty

Step 2: Controlled substance(s)

If you found the defendant “guilty” of the “drug user in possession of a firearm” offense, please indicate whether the defendant was an “unlawful user” of marijuana, cocaine, or both.

 

___ marijuana

___ Cocaine

___ both marijuana and cocaine

COUNT 3: DRUG USER IN POSSESSION OF AMMUNITION

VERDICT

Step 1:

Verdict

On the “drug user in possession of ammunition” charge in Count 3, as explained in Final Jury Instruction No. 6, please mark your verdict. (If you found the defendant “not guilty,” do not consider the questions in Steps 2 and 3. Instead, sign the Verdict Form and inform the Court Security Officer that you have reached a verdict. However, if you found the defendant “guilty” of Count 3, please answer the question in Step 2 of this section of the Verdict Form.)


____ Not Guilty


____ Guilty

Step 2:

Firearm(s)

If you found the defendant “guilty” of the “drug user in possession of ammunition” offense, please indicate which one or more of the following types of ammunition the defendant possessed during the time that he was an “unlawful user” of marijuana. Also please indicate the number of rounds of such ammunition he possessed.

 

___ a. 9 mm ammunition; _____ rounds

___ b. 12-gauge ammunition; _____ rounds

___ c. .22 caliber ammunition; _____ rounds

___ d. .410 ammunition; _____ rounds.



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