Free Proposed Jury Instructions - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO JUDGE WILEY Y. DANIEL Criminal Case No. 01-cr-00359-WYD UNITED STATES OF AMERICA, Plaintiff, v. 1. BRAULIO MEDINA-GARCIA, Defendant.

GOVERNMENT'S AMENDED PROPOSED JURY INSTRUCTIONS AND VERDICT FORM

The United States of America respectfully submits its proposed jury instructions and verdict form for trial. The United States reserves the right to submit additional proposed jury instructions to address issues that arise during the course of the trial.

Respectfully Submitted, TROY A. EID United States Attorney

By: s/Jaime Peña JAIME PEÑA Assistant United States Attorney 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0207 Fax: 303-454-0409 [email protected]

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PLAINTIFF'S INSTRUCTION NO. 1.01 PRELIMINARY INSTRUCTIONS BEFORE TRIAL Members of the Jury: At the end of the trial I will give you detailed guidance on the law and on how you will go about reaching your decision. But now I simply want to generally explain how the trial will proceed. This criminal case has been brought by the United States government. I will sometimes refer to the government as the prosecution. The government is represented by assistant United States attorneys Jaime A. Pena and Joshua Stein. The defendant, Braulio Medina-Garcia, is represented by his lawyer, Harvey Steinberg. The indictment charges the defendant with Conspiracy and Possession with the Intent to Distribute methamphetamine and cocaine. The indictment is simply the description of the charge made by the government against the defendant; it is not evidence of guilt or anything else. The defendant pleaded not guilty and is presumed innocent. He may not be found guilty by you unless all twelve of you unanimously find that the government has proved his guilt beyond a reasonable doubt. The first step in the trial will be the opening statements. The government in its opening statement will tell you about the evidence which it intends to put before you. Just as the indictment is not evidence, neither is the opening statement. Its purpose is only to help you understand what the evidence will be. It is a road map to show you what is ahead. After the government's opening statement, the defendant's attorney may make

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an opening statement. [Change if the defendant reserves his statement until later or omit if the defendant has decided not to make an opening statement.] Evidence will be presented from which you will have to determine the facts. The evidence will consist of the testimony of the witnesses, documents and other things received into the record as exhibits, and any facts about which the lawyers agree or to which they stipulate. The government will offer its evidence. After the government's evidence, the defendant's lawyer may [make an opening statement and] present evidence, but he is not required to do so. I remind you that the defendant is presumed innocent and it is the government that must prove the defendant's guilt beyond a reasonable doubt. If the defendant submits evidence, the government may introduce rebuttal evidence. At times during the trial, a lawyer may make an objection to a question asked by another lawyer, or to an answer by a witness. This simply means that the lawyer is requesting that I make a decision on a particular rule of law. Do not draw any conclusion from such objections or from my rulings on the objections. If I sustain an objection to a question, the witness may not answer it. Do not attempt to guess what answer might have been given if I had allowed the answer. If I overrule the objection, treat the answer as any other. If I tell you not to consider a particular statement, you may not refer to that statement in your later deliberations. Similarly, if I tell you to consider a particular piece of evidence for a specific purpose, you may consider it only for that purpose. During the course of the trial I may have to interrupt the proceedings to confer with the attorneys about the rules of law that should apply. Sometimes we will talk

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briefly, at the bench. But some of these conferences may take more time, so I will excuse you from the courtroom. I will try to avoid such interruptions whenever possible, but please be patient even if the trial seems to be moving slowly because conferences often actually save time in the end. You are to consider all the evidence received in this trial. It will be up to you to decide what evidence to believe and how much of any witness's testimony to accept or reject. After you have heard all the evidence on both sides, the government and the defense will each be given time for their final arguments. [The final part of the trial occurs when I instruct you on the rules of law which you are to use in reaching your verdict.] During the course of the trial I may ask a question of a witness. If I do, that does not indicate I have any opinion about the facts in the case but am only trying to bring out facts that you may consider. [Insert Instruction 1.02 here if material on note-taking by jurors is desired.] The defendant is charged in count ONE with a violation of 21 U.S.C. section 846. This law makes it a crime for anyone to conspire with someone else to violate federal laws pertaining to controlled substances. In this case, the defendant is charged with conspiracy to possess with the intent to distribute methamphetamine and cocaine. To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: two or more persons agreed to violate the federal drug laws; Second: the defendant knew the essential objective of the conspiracy;

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Third: the defendant knowingly and voluntarily involved himself in the conspiracy; and Fourth: there was interdependence among the members of the conspiracy; that is, the members, in some way or manner, intended to act together for their shared mutual benefit within the scope of the conspiracy charged. Fifth: the overall scope of the conspiracy involved at least 500 grams of a mixture or substance containing a detectable amount of methamphetamine and a detectable amount of cocaine. The defendant is charged in counts 2 and 3 with a violation of 21 U.S.C. section 841(a)(1). This law makes it a crime to possess a controlled substance with the intent to distribute it. To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: the defendant knowingly or intentionally possessed [methamphetamine and cocaine] as charged; Second: the defendant possessed the substance with the intent to distribute it; and Third: the weight of the [methamphetamine and cocaine] defendant possessed was at least 500 grams of a mixture containing a detectable amount of methamphetamine and a detectable amount of cocaine, as charged. [Ordinarily, the attorneys will develop all the relevant evidence that will be necessary for you to reach your verdict. However, in rare situations, a juror may believe a question is critical to reaching a decision on a necessary element of the case. In that exceptional circumstance, you may write out a question and provide it to the courtroom

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deputy while the witness is on the stand. I will then consider that question with the lawyers. If it is determined to be a proper and necessary question, I will ask it. If I do not ask it, you should recognize that I have determined it is not a legally appropriate question and not worry about why it was not asked or what the answer would have been.] During the course of the trial, you should not talk with any witness, or with the defendant, or with any of the lawyers at all. In addition, during the course of the trial you should not talk about the trial with anyone else. Also, you should not discuss this case among yourselves until I have instructed you on the law and you have gone to the jury room to make your decision at the end of the trial. It is important that you wait until all the evidence is received and you have heard my instructions on the controlling rules of law before you deliberate among yourselves. Let me add that during the course of the trial you will receive all the evidence you properly may consider to decide the case. Because of this, you should not attempt to gather any information on your own that you think might be helpful. Do not engage in any outside reading on this case, do not attempt to visit any places mentioned in the case, and do not in any other way try to learn about the case outside the courtroom. The court reporter is making stenographic notes of everything that is said. This is basically to assist any appeals. However, a typewritten copy of the testimony will not be available for your use during deliberations. On the other hand, any exhibits will be available to you during your deliberations. Now that the trial has begun you must not hear or read about it in the media. The reason for this is that your decision in this case must be made solely on the evidence

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presented at the trial. With that introduction, Mr. Pena, you may present the opening statement for the government.

10th Circuit Pattern Jury Instructions, No. 1.01 (2005).

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PLAINTIFF'S INSTRUCTION NO.

1.03 INTRODUCTION TO FINAL INSTRUCTIONS Members of the Jury: In any jury trial there are, in effect, two judges. I am one of the judges, you are the other. I am the judge of the law. You, as jurors, are the judges of the facts. I presided over the trial and decided what evidence was proper for your consideration. It is also my duty at the end of the trial to explain to you the rules of law that you must follow and apply in arriving at your verdict. In explaining the rules of law that you must follow, first, I will give you some general instructions which apply in every criminal case­for example, instructions about burden of proof and insights that may help you to judge the believability of witnesses. Then I will give you some specific rules of law that apply to this particular case and, finally, I will explain the procedures you should follow in your deliberations, and the possible verdicts you may return. These instructions will be given to you for use in the jury room, so you need not take notes.

10th Circuit Pattern Jury Instructions, No. 1.03 (2005).

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PLAINTIFF'S INSTRUCTION NO.

1.04 DUTY TO FOLLOW INSTRUCTIONS You, as jurors, are the judges of the facts. But in determining what actually happened­that is, in reaching your decision as to the facts­it is your sworn duty to follow all of the rules of law as I explain them to you. You have no right to disregard or give special attention to any one instruction, or to question the wisdom or correctness of any rule I may state to you. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences. However, you should not read into these instructions, or anything else I may have said or done, any suggestion as to what your verdict should be. That is entirely up to you. It is also your duty to base your verdict solely upon the evidence, without prejudice or sympathy. That was the promise you made and the oath you took.

10th Circuit Pattern Jury Instructions, No. 1.04 (2005).

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PLAINTIFF'S INSTRUCTION NO. 1.05 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 Instructions, No. 1.05 (2005).

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PLAINTIFF'S INSTRUCTION NO. 1.06 EVIDENCE--DEFINED You must make your decision based only on the evidence that you saw and heard here in court. Do not let rumors, suspicions, or anything else that you may have seen or heard outside of court influence your decision in any way. The evidence in this case includes only what the witnesses said while they were testifying under oath, the exhibits that I allowed into evidence, the stipulations that the lawyers agreed to, and the facts that I have judicially noticed. Nothing else is evidence. The lawyers' statements and arguments are not evidence. Their questions and objections are not evidence. My legal rulings are not evidence. And my comments and questions are not evidence. During the trial, I did not let you hear the answers to some of the questions that the lawyers asked. I also ruled that you could not see some of the exhibits that the lawyers wanted you to see. And sometimes I ordered you to disregard things that you saw or heard, or I struck things from the record. You must completely ignore all of these things. Do not even think about them. Do not speculate about what a witness might have said or what an exhibit might have shown. These things are not evidence, and you are bound by your oath not to let them influence your decision in any way.

10th Circuit Pattern Jury Instructions, No. 1.06 (2005).

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PLAINTIFF'S INSTRUCTION NO. 1.07 EVIDENCE--DIRECT AND CIRCUMSTANTIAL--INFERENCES There are, generally speaking, two types of evidence from which a jury may properly determine the facts of a case. One is direct evidence, such as the testimony of an eyewitness. The other is indirect or circumstantial evidence, that is, the proof of a chain of facts which point to the existence or non-existence of certain other facts. As a general rule, the law makes no distinction between direct and circumstantial evidence. The law simply requires that you find the facts in accord with all the evidence in the case, both direct and circumstantial. While you must consider only the evidence in this case, you are permitted to draw reasonable inferences from the testimony and exhibits, inferences you feel are justified in the light of common experience. An inference is a conclusion that reason and common sense may lead you to draw from facts which have been proved. By permitting such reasonable inferences, you may make deductions and reach conclusions that reason and common sense lead you to draw from the facts which have been established by the testimony and evidence in this case.

10th Circuit Pattern Jury Instructions, No. 1.07 (2005).

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PLAINTIFF'S INSTRUCTION NO. 1.08 CREDIBILITY OF WITNESSES I remind you that it is your job to decide whether the government has proved the guilt of the defendant beyond a reasonable doubt. In doing so, you must consider all of the evidence. This does not mean, however, that you must accept all of the evidence as true or accurate. You are the sole judges of the credibility or "believability" of each witness and the weight to be given to the witness's testimony. An important part of your job will be making judgments about the testimony of the witnesses [including the defendant] who testified in this case. You should think about the testimony of each witness you have heard and decide whether you believe all or any part of what each witness had to say, and how important that testimony was. In making that decision, I suggest that you ask yourself a few questions: Did the witness impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome in this case? Did the witness have any relationship with either the government or the defense? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about which he/she testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness's testimony differ from the testimony of other witnesses? When weighing the conflicting testimony, you should consider whether the discrepancy has to do with a material fact or with an unimportant detail. And you should keep in mind that innocent misrecollection--like failure of recollection--is not uncommon.

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[The testimony of the defendant should be weighed and his credibility evaluated in the same way as that of any other witness.] [The defendant did not testify and I remind you that you cannot consider his decision not to testify as evidence of guilt. I want you to clearly understand, please, that the Constitution of the United States grants to a defendant the right to remain silent. That means the right not to testify or call any witnesses. That is a constitutional right in this country, it is very carefully guarded, and you should understand that no presumption of guilt may be raised and no inference of any kind may be drawn from the fact that a defendant does not take the witness stand and testify or call any witnesses.] In reaching a conclusion on particular point, or ultimately in reaching a verdict in this case, do not make any decisions simply because there were more witnesses on one side than on the other.

10th Circuit Pattern Jury Instructions, No. 1.08 (2005).

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PLAINTIFF'S INSTRUCTION NO. 1.12 IMPEACHMENT BY PRIOR CONVICTION (Witness Other Than Defendant) The testimony of a witness may be discredited or impeached by showing that the witness previously has been convicted of a [felony, that is, of a crime punishable by imprisonment for a term of years] or of a [crime of dishonesty or false statement]. A prior conviction does not mean that a witness is not qualified to testify, but is merely one circumstance that you may consider in determining the credibility of the witness. You may decide how much weight to give any [prior felony conviction] [crime of dishonesty] that was used to impeach a witness.

10th Circuit Pattern Jury Instructions, No. 1.12 (2005).

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PLAINTIFF'S INSTRUCTION NO. 1.15 ACCOMPLICE--CO­DEFENDANT--PLEA AGREEMENT The government called as [one] of its witnesses an alleged accomplice[s], (who was named as a co-defendant in the indictment. The government has entered into a plea agreement with the co-defendant[s], providing [e.g., for the dismissal of some charges and a recommendation of a lesser sentence than the co-defendant would otherwise likely receive]. Plea bargaining is lawful and proper, and the rules of this court expressly provide for it. An alleged accomplice, including one who has entered into a plea agreement with the government, is not prohibited from testifying. On the contrary, the testimony of an alleged accomplice may, by itself, support a guilty verdict. You should receive this type of testimony with caution and weigh it with great care. You should never convict a defendant upon the unsupported testimony of an alleged accomplice, unless you believe that testimony beyond a reasonable doubt. The fact that an accomplice has entered a guilty plea to the offense charged is not evidence of the guilt of any other person.

10th Circuit Pattern Jury Instructions, No. 1.15 (2005).

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PLAINTIFF'S INSTRUCTION NO. 1.17 EXPERT WITNESS [During the trial you heard the testimony of [a Chemist] who expressed opinions concerning certain substances being methamphetamine and cocaine.] In some cases, such as this one, scientific, technical, or other specialized knowledge may assist the jury in understanding the evidence or in determining a fact in issue. A witness who has knowledge, skill, experience, training or education, may testify and state an opinion concerning such matters. You are not required to accept such an opinion. You should consider opinion testimony just as you consider other testimony in this trial. Give opinion testimony as much weight as you think it deserves, considering the education and experience of the witness, the soundness of the reasons given for the opinion, and other evidence in the trial.

10th Circuit Pattern Jury Instructions, No. 1.17 (2005).

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PLAINTIFF'S INSTRUCTION NO. 1.18 ON OR ABOUT You will note that the indictment charges that the crime was committed on or about several dates. The government must prove beyond a reasonable doubt that the defendant committed the crime reasonably near these dates.

10th Circuit Pattern Jury Instructions, No. 1.18 (2005).

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PLAINTIFF'S INSTRUCTION NO. 1.23 DUTY TO DELIBERATE--VERDICT FORM In a moment the bailiff will escort you to the jury room and provide each of you with a copy of the instructions that I have just read. Any exhibits admitted into evidence will also be placed in the jury room for your review. When you go to the jury room, you should first select a foreperson, who will help to guide your deliberations and will speak for you here in the courtroom. [The second thing you should do is review the instructions. Not only will your deliberations be more productive if you understand the legal principles upon which your verdict must be based, but for your verdict to be valid, you must follow the instructions throughout your deliberations. Remember, you are the judges of the facts, but you are bound by your oath to follow the law stated in the instructions.] To reach a verdict, whether it is guilty or not guilty, all of you must agree. Your verdict must be unanimous on each count of the indictment. Your deliberations will be secret. You will never have to explain your verdict to anyone. You must consult with one another and deliberate in an effort to reach agreement if you can do so. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. During your deliberations, do not hesitate to reexamine your own opinions and change your mind if convinced that you were wrong. But do not give up your honest beliefs solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. Remember at all times, you are judges--judges of the facts. You must decide

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whether the government has proved the defendant guilty beyond a reasonable doubt. A form of verdict has been prepared for your convenience. [Explain the Verdict Form] The foreperson will write the unanimous answer of the jury in the space provided for each count of the indictment, either guilty or not guilty. At the conclusion of your deliberations, the foreperson should date and sign the verdict. If you need to communicate with me during your deliberations, the foreperson should write the message and give it to the bailiff. I will either reply in writing or bring you back into the court to respond to your message. Under no circumstances should you reveal to me the numerical division of the jury.

10th Circuit Pattern Jury Instructions, No. 1.23 (2005).

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PLAINTIFF'S INSTRUCTION NO. 1.31 ACTUAL OR CONSTRUCTIVE POSSESSION The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over an object or thing, at a given time, is then in actual possession of it. A person who, although not in actual possession, knowingly has the power at a given time to exercise dominion or control over an object, either directly or through another person or persons, is then in constructive possession of it. More than one person can be in possession of an object if each knows of its presence and has the power to control it. A defendant has joint possession of an object when two or more persons share actual or constructive possession of it. However, merely being present with others who have possession of the object does not constitute possession.

10th Circuit Pattern Jury Instructions, No. 1.31 (2005).

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PLAINTIFF'S INSTRUCTION NO. 1.37 KNOWINGLY--DELIBERATE IGNORANCE When the word "knowingly" is used in these instructions, it means that the act was done voluntarily and intentionally, and not because of mistake or accident. Although knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, careless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact. Knowledge can be inferred if the defendant was aware of a high probability of the existence of [the presence of methamphetamine and cocaine], unless the defendant did not actually believe [there was methamphetamine and cocaine present].

10th Circuit Pattern Jury Instructions, No. 1.37 (2005).

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PLAINTIFF'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

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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

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PLAINTIFF'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

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PLAINTIFF'S INSTRUCTION NO. _____ Conjunctive - Disjunctive Some counts of the indictment may accuse a defendant of violating the same statute in more than one way. In other words, the indictment may allege that the statute in question was violated by various acts which are in the indictment joined by the conjunctive "and," while the statute and the elements of the offense are stated in the disjunctive, using the word "or." In these instances, it is sufficient for a finding of guilt if the evidence established beyond a reasonable doubt the violation of the statute by any one of the acts charged. In order for you to return a guilty verdict, however, all twelve of you must agree that the same act has been proven.

See United States v. Klein, 850 F.2d 404, 406 (8th Cir. ), cert. denied, 488 U.S. 867 (1988).

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PLAINTIFF'S INSTRUCTION NO. 2.06 AID AND ABET 18 U.S.C. § 2(A)

Each count of the indictment also charges a violation of 18 U.S.C. section 2, which provides that: "Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." This law makes it a crime to intentionally help someone else commit a crime. To find the defendant guilty of this crime, you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: someone else committed the charged crime, and Second: the defendant intentionally associated himself in some way with the crime and intentionally participated in it as he would in something he wished to bring about. This means that the government must prove that the defendant consciously shared the other person's knowledge of the underlying criminal act and intended to help him. The defendant need not perform the underlying criminal act, be present when it is performed, or be aware of the details of its commission to be guilty of aiding and abetting. But a general suspicion that an unlawful act may occur or that something criminal is happening is not enough. Mere presence at the scene of a crime and knowledge that a crime is being committed are also not sufficient to establish aiding and abetting. 10th Circuit Pattern Jury Instructions, No. 2.06 (2005).

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PLAINTIFF'S INSTRUCTION NO. 2.85 CONTROLLED SUBSTANCES-- POSSESSION WITH INTENT TO DISTRIBUTE 21 U.S.C. § 841(A)(1) The defendant is charged in counts 2 and 3 with a violation of 21 U.S.C. section 841(a)(1). This law makes it a crime to possess a controlled substance with the intent to distribute it. To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: the defendant knowingly or intentionally possessed [methamphetamine and cocaine] as charged; Second: the defendant possessed the substance with the intent to distribute it; and Third: the weight of the [methamphetamine and cocaine] defendant possessed was at least 500 grams of a mixture containing a detectable amount of methamphetamine and a detectable amount of cocaine, as charged. Methamphetamine and Cocaine are controlled substance within the meaning of the law. To "possess with intent to distribute" 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.

10th Circuit Pattern Jury Instructions, No. 2.85 (2005).

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PLAINTIFF'S INSTRUCTION NO. 2.87 CONTROLLED SUBSTANCES--CONSPIRACY 21 U.S.C. § 846 The defendant is charged in count ONE with a violation of 21 U.S.C. section 846. This law makes it a crime for anyone to conspire with someone else to violate federal laws pertaining to controlled substances. In this case, the defendant is charged with conspiracy to possess with the intent to distribute methamphetamine and cocaine. To find the defendant guilty of this crime you must be convinced that the government has proved each of the following beyond a reasonable doubt: First: two or more persons agreed to violate the federal drug laws; Second: the defendant knew the essential objective of the conspiracy; Third: the defendant knowingly and voluntarily involved himself in the conspiracy; and Fourth: there was interdependence among the members of the conspiracy; that is, the members, in some way or manner, intended to act together for their shared mutual benefit within the scope of the conspiracy charged. Fifth: the overall scope of the conspiracy involved at least 500 grams of a mixture or substance containing a detectable amount of methamphetamine and a detectable amount of cocaine. Conspiracy--Agreement A conspiracy is an agreement between two or more persons to accomplish an unlawful purpose. It is a kind of "partnership in criminal purposes" in which each member becomes the agent or partner of every other member. Once a person

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becomes a member of a conspiracy, he is held legally responsible for the acts of the other members done in furtherance of the conspiracy, even though he was not present or aware that the acts were being committed. Mere similarity of conduct among various persons, and the fact they 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. The evidence in the case need not show that the members entered into any express or formal agreement. Nor is it necessary that the evidence show that the members stated between themselves what their object or purpose was to be, or the details thereof, or the means by which the object or purpose was to be accomplished. In order to establish proof that a conspiracy existed, the evidence must show beyond a reasonable doubt that the members in some way or manner, or through some contrivance, expressly or impliedly came to a mutual understanding to try to accomplish a common and unlawful plan. Evidence The evidence in the case need not establish that all the means or methods set forth in the indictment were agreed upon to carry out the alleged conspiracy; nor that all means or methods, which were agreed upon, were actually used or put into operation; nor that all of the persons charged to have been members of the alleged conspiracy were members. Rather, the evidence in the case must establish beyond a reasonable doubt that the alleged conspiracy was knowingly formed; and that one or more of the means or methods described in the indictment were agreed upon to be used, in an

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effort to effect or accomplish some object or purpose of the conspiracy, as charged in the indictment; and that two or more persons, including the defendant, were knowingly members of the conspiracy. Membership in Conspiracy If you conclude from the evidence beyond a reasonable doubt that a conspiracy as charged did exist, then you must next determine whether the defendant was a member of that conspiracy; that is, whether the defendant participated in the conspiracy with knowledge of its unlawful purposes and in furtherance of its unlawful objectives. In determining whether the defendant was a member of the conspiracy, the jury must consider only his acts and statements. The defendant cannot be bound by the acts or declarations of other participants until it is established that a conspiracy existed, and that [he] was one of its members. Interdependence To be a member of the conspiracy, the defendant need not know all of the other members or all of the details of the conspiracy, nor the means by which the objects were to be accomplished. Each member of the conspiracy may perform separate and distinct acts. It is necessary, however, that for the defendant to be a member of the conspiracy, the government must prove beyond a reasonable doubt that [he] [she] was aware of the common purpose and was a willing participant with the intent to advance the purposes of the conspiracy. In other words, while a defendant need not participate in all the acts or statements of the other members of the conspiracy to be bound by them, the acts or statements must be interdependent so that each member of the conspiracy depends upon the acts and statements of the other conspirators to make

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the conspiracy succeed. Extent of Participation The extent of a defendant's participation in the conspiracy is not relevant to whether he is guilty or not guilty. A defendant may be convicted as a conspirator even though he plays a minor part in the conspiracy. His financial stake, if any, in the venture is a factor that may be considered in determining whether a conspiracy existed and whether the defendant was a member of it.

10th Circuit Pattern Jury Instructions, No. 2.87 (2005).

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PLAINTIFF'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 or knowingly omitted. It is entirely up to you, however, to decide what facts to find from the evidence received during this trial.

O'Malley, Grenig and Lee, Federal Jury Practice and Instructions, Fifth Edition, Vol. 1A, 2000, § 17.07

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PLAINTIFF'S INSTRUCTION NO. The Indictment reads in relevant part, as follows: The Grand Jury charges that: COUNT ONE From approximately in or about January, 2001, until on or about August 29, 2001, in the State and District of Colorado, and elsewhere, the defendant, Braulio Medina-Garcia, did unlawfully and knowingly or intentionally conspire, combine, confederate, cooperate and agree with other persons both known and unknown to the Grand Jury to possess with intent to distribute and to distribute 500 grams (net weight) or more, specifically, 1892.1 grams (net weight), of a mixture or substance containing of a detectable amount of methamphetamine and 398.4 grams (net weight) of a quantity of a mixture or substance containing a detectable amount of cocaine, controlled substances listed in Schedule II, Title 21, United States Code, Section 812, and the regulations enacted thereunder, in violation of Title 21, Untied States Code, Section 841(a)(1). All in violation of Title 21, United States Code, Section 846. COUNT TWO Between on or about August 22, 2001, and or about August 29, 2001, in the State and District of Colorado, and elsewhere, the defendant, Braulio Medina-Garcia, did unlawfully and knowingly or intentionally possess with intent to distribute 500 grams (net weight) or more, specifically, 1892.1 grams (net weight), or a mixture or substance containing a detectable amount of methamphetamine, a controlled substance listed in Schedule II, Title 21, United States Code, Section 812, and the regulations enacted

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thereunder; and did knowingly or intentionally aid and abet and cause the same. All in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(A), and Title 18, United States Code, Section 2. COUNT THREE Between on or about August 22, 2001, and on or about August 29, 2001, in the State and District of Colorado, and elsewhere, the defendant, Braulio Medina-Garcia, did unlawfully and knowingly or intentionally possess with intent to distribute 398.4 grams (net weight) of a mixture or substance containing a detectable amount of cocaine, a controlled substance listed in Schedule II, Title 21, United States Code, Section 812; and did knowingly or intentionally aid and abet and cause the same. All in violation of Title 21, United States Code, Sections 841(a)(1) and (b)(1)(C), and Title 18, United States Code, Section 2.

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PLAINTIFF'S 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 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 to you what I think your verdict should be. Nothing said in these instructions and

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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[s] charged in the 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 offense[s] charged. [A] [F]orm[s] of verdict[s] [has] [have] been prepared for your convenience. [The form[s] of verdict should be read to the jury] You will take [this] [these] form[s] to the jury room and, when you have reached unanimous agreement as to your verdict[s], you will have your foreperson write your verdict[s], date and sign the form[s], and then return with your verdict[s] 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. 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

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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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Criminal Case No. 01-cr-00359-WYD

UNITED STATES OF AMERICA, Plaintiff, v. 1. BRAULIO MEDINA-GARCIA, Defendant.

VERDICT FORM

COUNT ONE

We, the jury, upon our oaths, unanimously find the defendant, BRAULIO MEDINA-GARCIA, in Count One of the indictment: Guilty Not Guilty COUNT TWO We, the jury, upon our oaths, unanimously find the defendant, BRAULIO MEDINA-GARCIA, in Count Two of the indictment: Guilty Not Guilty

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COUNT THREE We, the jury, upon our oaths, unanimously find the defendant, BRAULIO MEDINA-GARCIA, in Count Three of the indictment: Guilty Not Guilty

FOREPERSON

Dated this

day of

, 2006.