Free Proposed Jury Instructions - District Court of Colorado - Colorado

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 1 of 35

GOVERNMENT'S INSTRUCTION NO. Introduction to the Final Charge-Province of the Court and of the Jury Members of the Jury: Now that you have heard all of the evidence to be received in this trial and each of the arguments of counsel it becomes my duty to give you the final instructions of the Court as to the law that is applicable to this case. You should use these instructions to guide you in your decisions. All of the instructions of law given to you by the Court-those given to you at the beginning of the trial, those given to you during the trial, and these final instructions, must guide and govern your deliberations. You [will/will not] receive these instructions in writing. It is your duty as jurors to follow the law as stated in all of the instructions of the Court and to apply these rules of law to the facts as you find them to be from the evidence received during the trial. Counsel have quite properly referred to some of the applicable rules of law in their closing arguments to you. If, however, any difference appears to you between the law as stated by counsel and that as stated by the Court in these instructions, you, of course, are to be governed by the instructions given to you by the Court. You are not to single out any one instruction alone as stating the law, but must consider the instructions as a whole in reaching your decisions. Neither are you to be concerned with the wisdom of any rule of law stated by the Court. Regardless of any opinion you may have as to what the law ought to be, it would be a violation of your sworn duty to base any part of your verdict upon any other view or Page 1 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 2 of 35

opinion of the law than that given in these instructions of the Court just as it would be a violation of your sworn duty, as the judges of the facts, to base your verdict upon anything but the evidence received in the case. You were chosen as juror for this trial in order to evaluate all of the evidence received and to decide each of the factual questions presented by the allegations brought by the government in the indictment and the plea of not guilty by the defendant. In deciding the issues presented to you for decision in this trial you must not be persuaded by bias, prejudice, or sympathy for or against any of the parties to this case or by any public opinion. Justice through trial by jury depends upon the willingness of each individual juror to seek the truth from the same evidence presented to all the jurors here in the courtroom and to arrive at a verdict by applying the same rules of law as now being given to each of you in these instructions of the Court.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 12.01 Page 2 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 3 of 35

GOVERNMENT'S INSTRUCTION NO. ____ Consideration of the Indictment The superseding indictment in this case charges as follows: COUNT ONE From at least July 1, 1999, through on or about June 7, 2004, the exact dates being unknown to the Grand Jury, within the State and District of Colorado, the States of Massachusetts, New Hampshire, Kansas, Missouri, Arizona, and elsewhere, defendant, JAVIER AVITIA, did knowingly and intentionally combine, conspire, confederate, and agree with Sergio Orona, Gavino Barrera, John Eskeral Guebara, Adan Orozco, Saul Barrera, Jose Barrera, Kathleen Ann Hughes, Manuelito Garcia, Jose Migael Garcia, Jr., Ryan Allen Herrell, Armando Muro-Cerseda, Jovita Denise Guebara, and with other persons, both known and unknown to the Grand Jury, to possess with intent to distribute and to distribute: a quantity of 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine, a controlled substance listed in Schedule II; a quantity of 5 kilograms or more of a mixture and substance containing a detectable amount of cocaine, a controlled substance listed in Schedule II; and a quantity of 50 kilograms or more of a mixture and substance containing a detectable amount of marijuana, a controlled substance listed in Schedule I; with all controlled substances listed in Title 21, United States Code, Section 812, and the regulations enacted thereunder, in violation of Title 21, United States Code, Sections 841(a)(1), (b)(1)(A), (b)(1)(B) and (b)(1)(C). All in violation of Title 21, United States Code, Section 846.

Page 3 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 4 of 35

GOVERNMENT'S INSTRUCTION NO. Judging the Evidence There is nothing particularly different in the way that a juror should consider the evidence in a trial from that in which any reasonable and careful person would treat any very important question that must be resolved by examining facts, opinions, and evidence. You are expected to use your good sense in considering and evaluating the evidence in the case. Use the evidence only for those purposes for which it has been received and give the evidence a reasonable and fair construction in the light of your common knowledge of the natural tendencies and inclinations of human beings. If the defendant be proved guilty beyond a reasonable doubt, say so. If not proved guilty beyond a reasonable doubt, say so. Keep constantly in mind that it would be a violation of your sworn duty to base a verdict upon anything other than the evidence received in the case and the instructions of the Court. Remember as well that the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence because the burden of proving guilt beyond a reasonable doubt is always with the government.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 12.02 Page 4 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 5 of 35

GOVERNMENT'S INSTRUCTION NO. Evidence Received in the Case-Stipulations, Judicial Notice, and Inferences Permitted The evidence in this case consists of the sworn testimony of the witnessesregardless of who may have called them- all exhibits received in evidence- regardless of who may have produced them- all facts which may have been agreed to or stipulated; and all facts and events which may have been judicially noticed. When the attorneys on both sides stipulate or agree as to the existence of a fact, you may accept the stipulation as evidence and regard that fact as proved. You are not required to do so, however, since you are the sole judge of the facts. The Court has taken judicial notice of certain facts or events. When the Court declares that it has taken judicial notice of some fact or event, you may accept the Court's declaration as evidence and regard as proved the fact or event which has been judicially noticed. You are not required to do so, however, since you are the sole judge of the facts. Any proposed testimony or proposed exhibit to which an objection was sustained by the Court and any testimony or exhibit ordered stricken by the Court, must be entirely disregarded. Anything you may have seen or heard outside the courtroom is not proper evidence and must be entirely disregarded. Questions, objections, statements, and arguments of counsel are not evidence in the case unless made as an admission or stipulation of fact. You are to base your verdict only on the evidence received in the case. In your consideration of the evidence received, however, you are not limited to the bald Page 5 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 6 of 35

statements of the witnesses or to the bald assertions in the exhibits. In other words, you are not limited solely to what you see and hear as the witnesses testify or as the exhibits are admitted. You are permitted to draw from the facts which you find have been proved such reasonable inferences as you feel are justified in the light of your experience and common sense.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 12.03 Page 6 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 7 of 35

GOVERNMENT'S INSTRUCTION NO. Direct and Circumstantial Evidence There are two types of evidence which are generally presented during a trialdirect evidence and circumstantial evidence. Direct evidence is the testimony of a person who asserts or claims to have actual knowledge of a fact, such as an eyewitness. Circumstantial evidence is proof of a chain of facts and circumstances indicating the existence of a fact. The law makes no distinction between the weight or value to be given to either direct or circumstantial evidence. Nor is a greater degree of certainty required of circumstantial evidence than of direct evidence. You should weigh all the evidence in the case.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 12.04 Page 7 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 8 of 35

GOVERNMENT'S INSTRUCTION NO. Inferences From the Evidence Inferences are simply deductions or conclusions which reason and common sense lead the jury to draw from the evidence received in the case.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 12.05 Page 8 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 9 of 35

GOVERNMENT'S INSTRUCTION NO. Jury's Recollection Controls If any reference by the Court or by counsel to matters of testimony or exhibits does not coincide with your own recollection of that evidence, it is your recollection which should control during your deliberations and not the statements of the Court or of counsel. You are the sole judges of the evidence received in this case.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 12.07 Page 9 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 10 of 35

GOVERNMENT'S INSTRUCTION NO. Presumption of Innocence - Burden of Proof - Reasonable Doubt The Government has the burden of proving the defendant guilty beyond a reasonable doubt. The law does not require a defendant to prove his innocence or produce any evidence at all. The Government has the burden of proving the defendant guilty beyond a reasonable doubt, and if it fails to do so, you must find the defendant not guilty. Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are few things in this world that we know with absolute certainty, and in criminal cases, the law does not require proof that overcomes every possible doubt. It is only required that the Government's proof exclude any "reasonable doubt" concerning the defendant's guilt. A reasonable doubt is a doubt based on reason and common sense after careful and impartial consideration of all the evidence in the case. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.

10th Circuit Pattern Jury Instruction Number 1.05 (2005) Page 10 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 11 of 35

GOVERNMENT'S INSTRUCTION NO. _____ The Indictment Is Not Evidence An indictment or superseding indictment as is the case here is but a formal method used by the government to accuse a defendant of a crime. It is not evidence of any kind against the defendant. The defendant is presumed to be innocent of the crime charged. Even though this superseding indictment has been returned against the defendant, the defendant begins this trial with absolutely no evidence against him. The defendant has plead "Not Guilty" to the charge in this superseding indictment and, therefore, denies that he is guilty of that charge.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 13.04 Page 11 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 12 of 35

GOVERNMENT'S INSTRUCTION NO. Opinion Evidence-The Expert Witness The rules of evidence ordinarily do not permit witnesses to testify as to their own opinions or their own conclusions about important questions in a trial. An exception to this rule exists as to those witnesses who are described as "expert witnesses." An "expert witness" is someone who, by education or by experience , may have become knowledgeable in some technical, scientific, or very specialized area. If such knowledge or experience may be of assistance to you in understanding some of the evidence or in determining a fact, an "expert witness" in that area may state an opinion as to a matter in which he or she claims to be an expert. You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. You should consider the testimony of expert witnesses just as you consider other evidence in this case. If you should decide that the opinion of an expert witness is not based upon sufficient education or experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you should conclude that the opinion is out weighed by other evidence [including that of other "expert witnesses"], you may disregard the opinion in part or in its entirety. As I have told you several times, you-the jury-are the sole judges of the facts of this case.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 14.01 Page 12 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 13 of 35

GOVERNMENT'S INSTRUCTION NO. Credibility of Witnesses-Generally You, as jurors, are the sole and exclusive judges of the credibility of each of the witnesses called to testify in this case and only you determine the importance or the weight that their testimony deserves. After making your assessment concerning the credibility of a witness, you may decide to believe all of that witness' testimony, only a portion of it, or none of it. In making your assessment of that witness you should carefully scrutinize all of the testimony given by that witness, the circumstances under which each witness has testified, and all of the other evidence which tends to show whether a witness, in your opinion, is worthy of belief. Consider each witness's intelligence, motive to falsify, state of mind, and appearance and manner while on the witness stand. Consider the witness's ability to observe the matters as to which he or she has testified and consider whether he or she impresses you as having an accurate memory or recollection of these matters. Consider also any relation a witness may bear to either side of the case, the manner in which each witness might be affected by your verdict, and the extent to which, if at all, each witness is either supported or contradicted by other evidence in the case. Inconsistencies or discrepancies in the testimony of a witness or between the testimony of different witnesses may or may not cause you to disbelieve or discredit such testimony. Two or more persons witnessing an incident or a transaction may simply see or hear it differently. Innocent mis-recollection, like failure of recollection, is not an uncommon human experience. In weighing the effect of a discrepancy, Page 13 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 14 of 35

however, always consider whether it pertains to a matter of importance or an insignificant detail and consider whether the discrepancy results from innocent error or from intentional falsehood. After making your own judgement or assessment concerning the believability of a witness, you can then attach such importance or weight to that testimony, if any, that you feel it deserves. You will then be in a position to decide whether the government has proven the charges beyond a reasonable doubt. [The testimony of a defendant should be judged in the same manner as the testimony of any other witness.]

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 15.01 Page 14 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 15 of 35

GOVERNMENT'S INSTRUCTION NO. _____ Credibility of Witnesses--Accomplice/Informant The testimony of an alleged accomplice, someone who said he participated in the commission of a crime, must be examined and weighed by the jury with greater care than the testimony of a witness who did not participate in the commission of that crime. In this case, John Guebara, Adan Orozco, Saul Barrera, Robert Terriquez, Jr., Jose Migael Garcia, Jr., and Steven Herrada may be considered to be alleged accomplices in this case. The fact that an alleged accomplice has entered a plea of guilty to the offense charged is not evidence of the guilt of any other person including the defendant. The jury must determine whether the testimony of an accomplice has been affected by self-interest, or by an agreement he may have with the government, or by his own interest in the outcome of this case, or by prejudice against the defendant.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Vol. 1A, Fifth Edition, 2000, § 15.04. Page 15 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 16 of 35

GOVERNMENT'S INSTRUCTION NO. Credibility of Witnesses ­ Conviction of Felony The testimony of a witness may be discredited or impeached by evidence showing that the witness has been convicted of a felony, a crime for which a person may receive a prison sentence of more than one year. Prior conviction of a crime that is a felony is one of the circumstances which you may consider in determining the credibility of that witness. It is the sole and exclusive right of the jury to determine the weight to be given to any prior conviction as impeachment and the weight to be given to the testimony of anyone who has previously been convicted of a felony.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 15.07 Page 16 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 17 of 35

GOVERNMENT'S INSTRUCTION NO. Effect of the Defendant's Failure to Testify The defendant in a criminal case has an absolute right under our Constitution not to testify. The fact that the defendant did not testify must not be discussed or considered in any way when deliberating and in arriving at your verdict. No inference of any kind may be drawn from the fact that a defendant decided to exercise his privilege under the Constitution and did not testify. As stated before, the law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or of producing any evidence.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 15.14 Page 17 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 18 of 35

GOVERNMENT'S INSTRUCTION NO. _____ Conspiracy--Basic Elements--Agreement Explained--Defendant's Connection-Uncharged, Unnamed, Untried Coconspirators Count One of the superseding indictment accuses the defendant of a conspiracy to distribute one or more controlled substances. It is a crime for two or more persons to conspire, or agree, to commit a criminal act, even if they never actually achieve their goal. A conspiracy is a kind of criminal partnership. For you to find the defendant guilty of the conspiracy charged in the indictment, the government must the following elements beyond a reasonable doubt.1 (1) That two or more persons conspired or agreed to distribute methamphetamine, cocaine or marijuana; 2) That the conspiracy involved a quantity of a mixture or substance that in turn contained 5 kilograms or more of cocaine; (2) That the defendant knew at least the essential objectives of the conspiracy; (3) That the defendant knowingly and voluntarily became a part of it; and (4) That the alleged coconspirators were interdependent.2 Now, some of the persons who may have been involved in the alleged events in this case are not on trial. This does not matter. There is no requirement that all

United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997), cert. denied, 523 U.S. 1144 (1998). In a conspiracy charged under 21 U.S.C. § 846, no overt acts need be alleged; no instructions regarding overt acts need be given. United States v. Shabani, 513 U.S. 10 (1994); United States v. Johnston, 146 F.3d 785, 789 (10th Cir. 1998), cert. denied, 525 U.S. 1008 (1999). Page 18 of 35
2

1

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 19 of 35

members of a conspiracy be named, charged, prosecuted, or tried together in one proceeding.3 With regard to the first element--a criminal agreement--the law does not require proof of any formal agreement, written or spoken. Nor does the law require proof that everyone involved agreed on all the details. The government must prove there was a mutual understanding, either spoken or unspoken, between two or more persons, to cooperate with each other to commit the underlying substantive offense that is the objective of the conspiracy.4 An agreement can be proved indirectly, by facts and circumstances which lead to a conclusion that an agreement existed.5 It is up to the government to convince you that such facts and circumstances existed in this particular case. If you are convinced that there was a criminal agreement between two or more persons, then you must decide whether the government has proved the defendant knowingly and voluntarily joined that agreement. To convict the defendant, the government must prove that he knew the conspiracy's main purpose and that he voluntarily joined it intending to help advance or achieve its goals.6

3

Adapted from Pattern Criminal Jury Instructions, Sixth Circuit (1991 Edition), § 3.06. Adapted from Pattern Criminal Jury Instructions, Sixth Circuit (1991 Edition), § 3.02.

4

United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997), cert. denied, 523 U.S. 1144 (1998); United States v. Evans, 970 F.2d 663 (10th Cir. 1992).
6

5

Adapted from Pattern Criminal Jury instructions, Sixth Circuit (1991 Edition), § 3.03. Page 19 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 20 of 35

The law does not require proof that a defendant knew everything about the conspiracy, or knew the identities of everyone else involved, or that he was a member of it from the very beginning. One who knowingly and intentionally joins a conspiracy takes on the same level of culpability as an originator of the conspiracy.7 Interdependence exists where each coconspirator's activities constitute essential and integral steps toward the realization of a common, illicit goal.8 Each alleged coconspirator's actions must facilitate the endeavors of other coconspirators or facilitate the venture as a whole.9 To avoid responsibility for the results of the conspiracy beyond a certain point in time, the defendant bears the burden of showing withdrawal from the conspiracy once it has been shown that he or she participated in it.10 The defendant must show that he took affirmative action to defeat or disavow the purpose of the conspiracy at some point.11 The mere arrest of one or more coconspirators does not necessarily terminate

During the existence of a conspiracy, each member of the conspiracy is legally responsible for the crimes of fellow conspirators committed in furtherance of the conspiracy. United States v. Cherry, 217 F.3d 811, 817 (10th Cir. 2000). A conspirator is only liable for the acts of coconspirators until the conspiracy has accomplished its goals or that conspirator withdraws. Id. United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997), cert. denied, 523 U.S. 1144 (1998).
9 8

7

United States v. Evans, 970 F.2d 663 (10th Cir. 1992). See United States v. Fox, 902 F.2d 1508 (10th Cir. 1990). United States v. Cherry, 217 F.3d 811, 817 (10th Cir. 2000). Page 20 of 35

10

11

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 21 of 35

the conspiracy.12 To be effective, a withdrawal must be complete and permanent; a partial or temporary withdrawal is not enough.13 The law does not require proof that a defendant played a major role in the conspiracy, or that his or her connection to it was substantial. A slight role or connection may be enough.14 But proof that a defendant simply knew about a conspiracy, or was present at times, or associated with members of the group, is not enough, even if he approved of what was happening or did not reject it. These are all things that you may consider in deciding whether the government has proved that a defendant joined a conspiracy. Mere presence at the scene of an event, even with knowledge that a crime is being committed, or the mere fact that certain persons may have associated with each other and may have assembled together and discussed common aims and interests, does not necessarily establish proof of the existence of a conspiracy. Also a person who has no knowledge of a conspiracy but who happens to act in a way which advances some purpose of a conspiracy, does not thereby become a conspirator. The Government must show that each defendant shared a common purpose or design with his co-conspirators.

United States v. Melton, 131 F3d 1400, 1405 (10th Cir. 1997); see Cleaver v. United States, 238 F.2d 766, 769 (10th Cir. 1956). Adapted from Pattern Criminal Jury Instructions, Sixth Circuit (1991 Edition), § 3.11A. United States v. Anderson, 189 F.3d 1201, 1207 (10th Cir. 1999)(slight connection must be proven beyond a reasonable doubt). Page 21 of 35
14 13

12

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 22 of 35

A defendant's knowledge and intentions may be proved directly or indirectly like other facts in the case. Indirect proof would be proof by facts and circumstances which lead to a conclusion that he or she knew the conspiracy's main purpose. But, once again, the burden is on the government to prove such facts and circumstances existed in this particular case.

Page 22 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 23 of 35

GOVERNMENT'S INSTRUCTION NO. _____ "To Possess" -- Defined The term "to possess" means to exercise control or authority over something at a given time. There are several types of possession: constructive, sole, and joint. The "possession" is considered to be actual when a person knowingly has direct physical control or authority over something. The "possession" is called constructive when a person does not have direct physical control over something, but can knowingly control it and intends to control it, sometimes through another person. The "possession" may be knowingly exercised by one person exclusively which is called sole possession or the "possession" may be knowingly exercised jointly when it is shared by two or more persons.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 2B, 2000, § 64.08 Page 23 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 24 of 35

GOVERNMENT'S INSTRUCTION NO. "With Intent to Distribute" - Defined To possess with intent to distribute simply means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction. It is not necessary for the government to prove that the defendant knew the precise nature of the controlled substance that was distributed.

See United States v. Johnson, 130 F.3d 1420, 1428 (10th Cir. 1997), cert. denied, 525 U.S. 829 (1998); see also Pattern Jury Instructions, Fifth Circuit, Instr. No.2.87 (West 1997). Page 24 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 25 of 35

GOVERNMENT'S INSTRUCTION NO. ____ "A Controlled Substance" -- Defined You are instructed, as a matter of law, that cocaine is a controlled substance within the meaning of the federal drug laws. It is solely for the jury, however, to determine whether or not the Government. has proven beyond a reasonable doubt that the defendant conspired to distribute or to possess with intent to distribute any such mixtures or substances which contained cocaine.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 64.13 Page 25 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 26 of 35

GOVERNMENT'S INSTRUCTION NO. _____ Actual or Exact Amount of Controlled Substance Need Not Be Proven The evidence received in this case need not prove the actual amount of the controlled substance that was part of the alleged transaction or the exact amount of the controlled substance alleged in the indictment that the defendant conspired to possess with the intent to distribute or to distribute. The government must prove beyond a reasonable doubt, however, that the defendant conspired to possess with the intent to distribute or to distribute a measurable amount of the controlled substance.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 64.14 Page 26 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 27 of 35

GOVERNMENT'S INSTRUCTION NO. "On or About" ­ Explained The indictment charges that the offense was committed "on or about" a certain date. Although it is necessary for the government to prove beyond a reasonable doubt that the offense was committed on dates reasonably near the dates alleged in the indictment, it is not necessary for the government to prove that the offense was committed precisely on the dates charged.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 13.05 Page 27 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 28 of 35

GOVERNMENT'S INSTRUCTION NO. _____ Requisite State of Mind You will note that I have referred at several points to a requirement that defendant act "knowingly," or with "knowledge," or "wilfully." This requirement refers to the state of mind which accompanied the defendant's acts. This is a critical requirement, for our system of justice does not ordinarily criminalize acts which are simple mistakes or even those which are careless; there must be something more than carelessness or mistake. I will now define what I mean by such terms.

COURT'S INSTRUCTION NO. 5.0 Page 28 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 29 of 35

GOVERNMENT'S INSTRUCTION NO. _____ "Knowingly" -- Defined The term "knowingly" as used in these instructions to describe the alleged state of mind of the defendant, means that the defendant was conscious and aware of his actions, realized what he was doing or what was happening around him, and did not act because of ignorance, mistake, or accident, or carelessness.

O'Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 17.04 Page 29 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 30 of 35

GOVERNMENT'S INSTRUCTION NO. _____ Definition of "Intentionally" or "willfully" The terms "intentionally" or "willfully," where I have used these terms in these instructions, mean deliberately and purposely. The government must prove beyond a reasonable doubt that the defendant acted intentionally when he committed the offense charged in Count One of the Indictment. That is, the defendant's acts must have been the product of defendant's conscious objective rather than the product of a mistake or accident.

COURT'S INSTRUCTION NO. 5.2; see 1 L. Sand, et al., Modern Federal Jury Instructions ¶ 3A.01 (Instruction No. 3A-4) (1996). 1 L. Sand, et al. Modern Federal Jury Instructions ¶ 3A.01 (Instruction No. 3A-4) (2002). Page 30 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 31 of 35

GOVERNMENT'S INSTRUCTION NO. _____ Proof of Knowledge or Intent The intent of a person or the knowledge that a person possesses at any given time may not ordinarily be proved directly because there is no way of directly scrutinizing the workings of the human mind. In determining the issue of what a person knew or what a person intended at a particular time, you may consider any statements made or acts done by that person and all other facts and circumstances received in evidence which may aid in your determination of that person's knowledge or intent. You may infer, but you are certainly not required to infer, that a person intends the natural and probable consequences of acts knowingly done. It is entirely up to you, however, to decide what facts to find from the evidence received during this trial.

COURT'S INSTRUCTION NO. 5.3; see O'Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 17.07 Page 31 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 32 of 35

GOVERNMENT'S INSTRUCTION NO. _____ Motive Intent and motive are different concepts and should never be confused. Motive is what prompts a person to act or fail to act. Intent refers only to the state of mind with which the act is done or omitted. Personal advancement and financial gain, for example, are two well-recognized motives for much of human conduct. These praiseworthy motives, however, may prompt one person to voluntary acts of good while prompting another person to voluntary acts of crime. Good motive alone is never a defense where the act done or omitted is a crime. The motive of the defendant is, therefore, immaterial except insofar as evidence of motive may aid in the determination of state of mind or the intent of the defendant.

COURT'S INSTRUCTION NO. 5.4; see O'Malley, Grenig, and Lee, Federal Jury Practice and Instructions, Fifth Edition, 2000, § 17.06 Page 32 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 33 of 35

GOVERNMENT'S PROPOSED INSTRUCTION NO. _____ Verdict--Election of Foreperson--Duty to Deliberate--Unanimity--Punishment--Form of Verdict--Communication With the Court Upon retiring to your jury room to begin your deliberation, you must elect one of your members to act as your foreperson. The foreperson will preside over your deliberations and will be your spokesperson here in court. Your verdict must represent the collective judgment of the jury. In order to return a verdict, it is necessary that each juror agree to it. Your verdict, in other words, must be unanimous. It is your duty as jurors to consult with one another and to deliberate with one another with a view towards reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for himself and herself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and to change your opinion if you are convinced it is erroneous. Do not surrender your honest conviction, however, solely because of the opinion of your fellow jurors or for the mere purpose of returning a unanimous verdict. Remember at all times that you are not partisans. You are judges--judges of the facts of this case. Your sole interest is to seek the truth from the evidence received during the trial. Your verdict must be based solely upon the evidence received in the case. Nothing you have seen or read outside of court may be considered. Nothing that I have said or done during the course of this trial is intended in any way, to somehow suggest Page 33 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 34 of 35

to you what I think your verdict should be. Nothing said in these instructions and nothing in any form of verdict, which has been prepared for your convenience, is to suggest or convey to you in any way or manner any intimation as to what verdict I think you should return. What the verdict shall be is the exclusive duty and responsibility of the jury. As I have told you many times, you are the sole judges of the facts. The punishment provided by law for the offense charged in the superseding indictment is a matter exclusively within the province of the Court and should never be considered by the jury in any way in arriving at an impartial verdict as to the offenses charged. A form of verdict has been prepared for your convenience. [The form of verdict should be read to the jury] You will take this form to the jury room and, when you have reached unanimous agreement as to your verdict, you will have your foreperson write your verdicts, date and sign the form, and then return with your verdict to the courtroom. If it becomes necessary during your deliberations to communicate with the Court, you may send a note, signed by your foreperson or by one or more members of the jury, through the bailiff. No member of the jury should ever attempt to communicate with the Court by any means other than a signed writing and the Court will never communicate with any member of the jury concerning the evidence, your opinions, or the deliberations other than in writing or orally here in open court. You will note from the oath about to be taken by the bailiffs that they too, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury concerning the evidence, your opinions, or the deliberations.

Page 34 of 35

Case 1:04-cr-00187-LTB

Document 791-2

Filed 03/28/2006

Page 35 of 35

Bear in mind also that you are never to reveal to any person--not even to the Court-how the jury stands, numerically or otherwise, on the question of whether or not the government has sustained its burden of proof until after you have reached a unanimous verdict.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 20.01 Page 35 of 35