IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA, ) Case No: 8:06CR32)

Plaintiff, ))

vs. ) FINAL) JURY INSTRUCTIONS

MARY S. BECERRA, ))

Defendant. )

INSTRUCTION NO. 1

DUTY

It is your duty to decide from the evidence whether the defendant is guilty or not

guilty of the crimes charged. From the evidence, you will decide what the facts are. You

are entitled to consider the evidence in the light of your own observations and

experiences in life. You may use reason and common sense to draw deductions or

conclusions from facts established by the evidence. You will then apply those facts to

the law which I give you in these and other instructions. In that way, you will reach your

verdict. You are the sole judges of the facts, but you must follow the law stated in my

instructions whether you agree or disagree with the law stated in the instructions.

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 a witness’s

testimony, or you may believe part of a witness’s testimony, or you may decide that you

do not believe any of a witness’s testimony.

In deciding what testimony to believe, you may consider a witness’s intelligence,

the witness’s opportunity to have seen or heard the things involved in the witness’s

testimony,

a witness’s memory, the motive a witness has for testifying a certain way, a witness’s

manner while testifying, whether a witness has said something different at an earlier

time, the general reasonableness of a witness’s testimony and the extent to which the

witness’s testimony is consistent with other evidence that you believe.

Do not allow sympathy or prejudice to influence you. The law requires that your

verdict be just, that is, unaffected by anything except the evidence, your common sense,

and the law stated in my instructions.

Anything that I may say or do during the trial must not be taken by you as an

indication of what I think of the evidence or what I think your verdict should be.

Finally, please remember that only the defendant, and not anyone else, is on trial

here, and the defendant is on trial only for the crime or crimes charged, and not for

anything else.

INSTRUCTION NO. 2

PRESUMPTION OF INNOCENCE

The law presumes that the defendant is innocent. The defendant has no burden

to prove that she is innocent. Hence, even though the defendant stands charged, the

trial begins with no evidence against her.

INSTRUCTION NO. 3

CONSTITUTIONAL RIGHT NOT TO TESTIFY

Because the defendant is not required to prove her innocence, the defendant’s

decision to exercise her constitutional right not to testify cannot be considered by you or

discussed among jurors in arriving at your verdict.

INSTRUCTION NO. 4

BURDEN OF PROOF

The government carries the burden to prove beyond a reasonable doubt each

essential element of the crimes charged against the defendant. 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. However, proof beyond a reasonable doubt does not mean proof beyond

all possible doubt.

INSTRUCTION NO. 5

EVIDENCE; LIMITATIONS

You should understand that an indictment is simply an accusation. It is not

evidence of anything. The defendant has pled not guilty. The defendant is presumed to

be innocent unless proved guilty beyond a reasonable doubt.

The word “evidence” includes: the testimony of witnesses; documents and other

things received as exhibits; any facts that have been stipulated, that is, formally agreed

to by the parties; and any facts that have been judicially noticed, that is, facts which I say

you must accept as true.

The following things are not evidence:

1. Statements, arguments, questions and comments by lawyers are not evidence.

2. Objections are not evidence.

Lawyers have a right to object when they believe something is improper under the

rules of evidence. You should not be influenced by the lawyer’s objection or by my

ruling on the objection. If I sustain an objection to a question, ignore the question. If I

overrule the objection, treat the answer like any other answer. Do not attempt to draw

any inference in favor of either side as the result of the objection.

3. Testimony that I strike from the record or tell you to disregard is not evidence.

You must not consider such information when reaching your verdict.

4. Anything you see or hear about this case outside the courtroom is not

evidence. You must disregard such information when reaching your verdict.

5. A particular item of evidence is sometimes received for a limited purpose. I

will tell you when that situation arises and will instruct you on the purpose for which the

evidence can and cannot be used.

6. Finally, you may have heard the phrases “direct evidence” and “circumstantial

evidence.” You should not be concerned with those phrases, since the law makes no

distinction between the weight to be given to direct or to circumstantial evidence. You

should give all the evidence the weight and value which you believe that the evidence is

entitled to receive.

INSTRUCTION NO. 6

BENCH CONFERENCES AND RECESSES

During this trial it may become necessary for me to talk with the lawyers outside

your hearing, either by having a bench conference while you are present in the

courtroom, or by calling a recess. Please understand that while you are waiting,

counsel and I are working. The purpose of the conference is to decide how certain

evidence is to be treated under the rules of evidence or to decide a particular procedure

to be followed in the case. The lawyers and I will do what we can to minimize the

number and length of these conferences.

INSTRUCTION NO. 7

NOTE-TAKING

If you wish, you may take notes to help you remember what witnesses said.

Notes may be helpful to you because at the end of the trial, you must make your

decision based on what you recall of the evidence. You will not have a written transcript

to consult, and it may not be practical for the court reporter to read back lengthy

testimony. Therefore, pay close attention to the testimony that is given.

If you do take notes, please keep your notes to yourself until you and the other

jurors go to the jury room to decide the case. Do not let note-taking distract you to the

point that you miss hearing other testimony from the witness.

During the trial, documents and other physical items may be received in

evidence. You will not be supplied with a list of exhibits which are received in evidence.

Therefore, you may wish to make notes about the exhibits, especially their description

and number, so that you can locate and refer to exhibits while you are deliberating.

When we take our recess each day for the lunch-time break and when we take

our recess each night, please take your notes to the jury room and leave your notes

there. The courtroom deputy will take custody of your notes and secure them.

No one will read your notes but you. Your notes will be destroyed after the trial is

over.

INSTRUCTION NO. 8

CONDUCT OF THE JURY

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

1. Do not talk among yourselves about this case or about anyone involved with

this case until the end of the case when you go to the jury room to decide on your

verdict.

2. 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.

3. During the course of this trial and when you are outside the courtroom, do not

listen to or allow anyone to tell you anything about this case. Do not allow anyone to talk

to you about anyone involved with this case until the trial has ended and I have accepted

your verdict. If anyone tries to talk to you about this case during the trial, please

promptly report the matter to me.

4. During the trial do not talk with or speak to any of the parties, lawyers, or

witnesses involved in this case. Do not even pass the time of day with any of them. You

must not only do justice in this case, but you must also give the appearance of doing

justice. For instance, if a person from one side of the lawsuit sees you talking to a

person from the other side, even if it is on a matter unconnected with this trial or simply

to pass the time of day, such contact might arouse unwarranted suspicion about your

fairness. If a lawyer, party, or witness does not speak to you when you pass in the hall,

ride the elevator, or encounter each other elsewhere while this trial is taking place,

remember that court rules prohibit those persons from talking or visiting with you as well.

5. You must decide this case on the basis of evidence presented in the

courtroom. Therefore, do not read any news stories or articles about the case or

about anyone

involved with this case. Do not listen to any radio or television reports about the case or

about anyone involved with it. Until the trial is over, avoid reading any newspapers and

avoid listening to any TV or radio newscasts. There may be news reports of this case,

and if there are, you might find yourself inadvertently reading or listening to something

before you realize what you are doing.

6. Do not do any research or make any investigation, on the internet or

otherwise, on your own concerning this case. Do not use or refer to any dictionary,

reference, or law book, or to the internet, concerning any aspect of this case, including

any evidence introduced. Do not visit the scene of any incident mentioned in this case.

7. Do not form any opinion regarding any fact or issue in the case until you have

received the entire evidence, have heard arguments of counsel, have been instructed as

to the law of the case, and have retired to the jury room. 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 have discussed the evidence with the

other jurors.

8. Do not be influenced by sympathy or prejudice. Do not indulge in any

speculation, guess, or conjecture. Do not make any inferences unless they are

supported by the evidence.

INSTRUCTION NO. 9

OUTLINE OF TRIAL

The trial will proceed in the following manner:

The government, through the Assistant United States Attorney, will make an

opening statement. The defendant’s attorney may, but does not have to, make an

opening statement. An opening statement is not evidence but is simply a summary of

what the attorney expects the evidence to be.

The government will then present its evidence, and counsel for the defendant

may cross-examine witnesses who have testified in the government's case. After the

government has presented its case, the defendant may, but does not have to, present

evidence, testify, or call witnesses. If a defendant calls witnesses, government counsel

may cross-examine those witnesses.

After presentation of evidence is completed, the attorneys will make their closing

arguments to summarize and interpret the evidence for you. As with opening

statements, closing arguments are not evidence. I will instruct you further on the law.

After that you will retire to deliberate on your verdict.

When you reach your verdict, we will return to the courtroom where your

foreperson will deliver the verdict to me. After the verdict is announced, one of the

lawyers may ask that the jury be polled, that is, that you each be asked individually

whether the verdict is your true verdict.

Once you have delivered your verdict, you will be discharged and will be free to

leave.

INSTRUCTION NO. 10

NATURE OF THE CASE; NATURE OF INDICTMENT

This is a criminal case brought by the United States of America against the

defendant, Mary S. Becerra, Case No. 8:06CR32. The parties to this criminal lawsuit

are the government, represented by Robert Sigler, and the defendant, Mary S. Becerra,

represented by F. Montgomery Brown. The charges against the defendant are set forth

in an indictment. You must understand that the indictment is simply an accusation. The

indictment is not evidence. In order to help you follow the evidence in this case, I will

now summarize the crimes charged in the indictment which the government must prove

beyond a reasonable doubt.

Count I of the indictment charges that from an unknown date, but at least as

early as January 1, 2002, and continuing through August 15, 2003, Mary S. Becerra

knowingly and intentionally combined, conspired, confederated, and agreed with other

persons to distribute 500 grams or more of a mixture or substance containing a

detectable amount of methamphetamine and a mixture or substance containing a

detectable amount of cocaine.

A conspiracy is a kind of criminal partnership—an agreement or mutual

understanding between two or more persons to commit one or more crimes. The people

participating in the same conspiracy are called “co-conspirators.” The crime of

conspiracy is a separate and distinct offense from the crime or crimes contemplated by

the conspirators. For instance, conspiring to commit mail fraud would be a separate

and distinct crime from committing mail fraud.

The defendant has pled not guilty to the charges of the indictment. Because she

has pled not guilty, the law requires you to presume Ms. Becerra to be innocent. This

presumption of innocence may be overcome only if the government proves, beyond a

reasonable doubt, each element of the crimes charged against the defendant.

INSTRUCTION NO. 11

COUNT I: CONSPIRACY

ESSENTIAL ELEMENTS; SINGLE CONSPIRACY

The defendant is charged in Count I of the indictment with conspiracy to distribute

a mixture or substance containing a detectable amount of methamphetamine and a

mixture or substance containing a detectable amount of cocaine. The charge of

conspiracy, as alleged in Count I of the indictment, has four essential elements which

the government must prove beyond a reasonable doubt:

1. From an unknown date, but at least as early as January 1, 2002, up to and

including August 15, 2003, two or more persons reached an agreement or

came to a mutual understanding to distribute or to possess with intent to

distribute methamphetamine and a mixture or substance containing a

detectable amount of cocaine;

2. The defendant voluntarily and intentionally joined in the agreement or

mutual understanding, either at the time it was first reached or at some

later time while the agreement or mutual understanding was still in effect;

3. At the time the defendant joined in the agreement or mutual

understanding, the defendant knew the purpose of the agreement or

mutual understanding was to distribute or to possess with intent to

distribute a mixture or substance containing methamphetamine and a

mixture or substance containing a detectable amount of cocaine; and

4. The amount of methamphetamine involved in the agreement or mutual

understanding that the defendant possessed with intent to distribute was

500

grams or more of a mixture or substance containing methamphetamine

and a detectable amount of cocaine, as instructed in Instruction No. 12.

If you find the government has proved the first three essential elements of the

offense charged in Count I of the indictment, you must determine the quantity of

controlled substances attributable to the defendant, within the ranges specified on the

verdict form. The government must convince you beyond a reasonable doubt that the

defendant was a member of the conspiracy charged in the indictment. If the government

fails to prove any of these elements beyond a reasonable doubt, then you must find the

defendant not guilty of the conspiracy charge, even if you find that she was a member of

some other conspiracy. Proof that the defendant was a member of some other

conspiracy is not enough to convict.

INSTRUCTION NO. 12

COUNT I: CONSPIRACY

QUANTITY

If you find the government has proved the first three essential elements of the

offense charged in Count I of the indictment, you must determine the quantity of

controlled substances attributable to the defendant, within the ranges specified on the

verdict form. The quantity of controlled substances involved in the agreement or

understanding includes the controlled substances the defendant possessed for personal

use, possessed with intent to distribute, distributed or agreed to distribute. The

quantity also includes the controlled substances fellow conspirators distributed or

agreed to distribute, if you find those distributions or agreements to distribute were a

necessary or natural consequence of the agreement or understanding and were

reasonably foreseeable by the defendant.

To assist you in determining quantity, you are advised that the following weight

measurements are equivalent:

1 oz (ounce) = 28.35 gm (grams)

1lb (pound) = 453.6 gm (grams)

1 lb (pound) = 0.4536 kg (kilograms)

1 lb (pound) = 16 oz (ounces)

1 kg (kilogram) = 1,000 gm (grams)

1 gm (gram) = 1,000 mg (milligrams)

INSTRUCTION NO. 13

COUNT I: CONSPIRACY

“AGREEMENT” EXPLAINED

Concerning the conspiracy charged in Count I of the indictment, the government,

by evidence beyond a reasonable doubt, must prove that the defendant reached an

agreement or understanding with at least one other person. It makes no difference

whether that other person is named in the indictment.

The “agreement or understanding” need not be an express or formal agreement

or be in writing or cover all the details of how it is to be carried out. Nor is it necessary

that the members have directly stated between themselves the details or purpose of the

scheme.

You should understand that merely being present at the scene of an event, or

merely acting in the same way as others or merely associating with others, does not

prove that a person has joined in an agreement or understanding. A person who has no

knowledge of a conspiracy but who happens to act in a way which advances some

purpose of one does not thereby become a member.

But a person may join in an agreement or understanding, as required by this

element, without knowing all the details of the agreement or understanding, and without

knowing who all the other members are. Further, it is not necessary that a person agree

to play any particular part in carrying out the agreement or understanding. A person may

become a member of a conspiracy even if that person agrees to play only a minor part

of the conspiracy, as long as that person has an understanding of the unlawful nature of

the plan and voluntarily and intentionally joins in it.

You must decide, after considering all of the evidence, whether the conspiracy

alleged in Count I of the indictment existed. If you find that the alleged conspiracy did

exist, you must also decide whether the defendant voluntarily and intentionally joined the

conspiracy, either at the time it was first formed or at some later time while it was still in

effect. In determining whether the alleged conspiracy existed, you may consider the

actions and statements of all the alleged participants. The agreement may be inferred

from all the circumstances and the conduct of the alleged participants. In making that

decision, you must consider only evidence of the defendant’s own actions and

statements. You may not consider actions and pretrial statements of others, except to

the extent that pretrial statements of others describe something that had been said or

done by the defendant.

INSTRUCTION NO. 14

COUNT I: CONSPIRACY

“DISTRIBUTE” EXPLAINED

The term “distribute” as used in these instructions means the actual, constructive

or attempted delivery or transfer of a controlled substance to another person. “Transfer”

means to convey or remove from one place or one person to another; to pass or hand

over from one to another, especially to change over the possession or control of.

INSTRUCTION NO. 15

COUNT I: CONSPIRACY

SUCCESS IMMATERIAL

It is not necessary for the government to prove that all the conspirators actually

succeeded in accomplishing their unlawful plan.

INSTRUCTION NO. 16

COUNT I: CONSPIRACY

CO-CONSPIRATORS’ ACTS AND STATEMENTS

You may consider acts knowingly done and statements knowingly made by a

defendant’s co-conspirators during the existence of the conspiracy and in furtherance of

the conspiracy as evidence pertaining to the defendant even though the acts and

statements were done or made in the absence of and without the knowledge of the

defendant. This includes acts done or statements made before the defendant had joined

the conspiracy, for a person who knowingly, voluntarily and intentionally joins an existing

conspiracy is responsible for all of the conduct of the co-conspirators from the beginning

of the conspiracy.

Acts and statements which are made before the conspiracy began or after it

ended are admissible only against the person making them and should not be

considered by you against any other person.

INSTRUCTION NO. 17

WIRETAP OR OTHER TAPE-RECORDED EVIDENCE

You are about to hear tape recordings of conversations. These conversations

were legally recorded, and you may consider the recordings just like any other evidence.

INSTRUCTION NO. 18

PROOF OF INTENT OR KNOWLEDGE

Intent or knowledge may be proved like anything else.

You may consider any statements made and acts done by the defendant and all

the facts and circumstances in evidence which may aid in a determination of the

knowledge or intent of the defendant.

You may, but are not required to, infer that a person intends the natural and

probable consequences of acts knowingly done or knowingly omitted.

INSTRUCTION NO. 19

POSSESSION DEFINED

The law recognizes several kinds of possession. A person may have actual

possession or constructive possession. A person may have sole or joint possession.

A person who knowingly has direct physical control over a thing, at a given time,

is then in actual possession of it.

A person who, although not in actual possession, has both the power and the

intention at a given time to exercise dominion or control over a thing, either directly or

through another person or persons, is then in constructive possession of it.

If one person alone has actual or constructive possession of a thing, possession

is sole. If two or more persons share actual or constructive possession of a thing,

possession is joint.

Whenever the word “possession” has been used in these instructions, it includes

actual as well as constructive possession and also sole as well as joint possession.

INSTRUCTION NO. 20

“ON OR ABOUT” EXPLAINED

The indictment charges that the offenses were committed “on or about” a certain

date or period of time. It is not necessary that the proof establish with certainty the exact

date of the alleged offenses. It is sufficient if the evidence shows beyond a reasonable

doubt that said offenses were committed on a date reasonably near the date alleged.

INSTRUCTION NO. 21

DUTY

It is your duty to decide from the evidence whether the defendant is guilty or not

guilty of the crime charged. From the evidence, you will decide what the facts are. You

are entitled to consider the evidence in the light of your own observations and

experiences in life. You may use reason and common sense to draw deductions or

conclusions from facts established by the evidence. You will then apply those facts to

the law which I give you in these and other instructions. In that way, you will reach your

verdict. You are the sole judges of the facts, but you must follow the law stated in my

instructions whether you agree or disagree with the law stated in the instructions.

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 a witness’s

testimony, or you may believe part of a witness’s testimony, or you may decide that you

do not believe any of a witness’s testimony.

In deciding what testimony to believe, you may consider a witness’s intelligence,

the witness’s opportunity to have seen or heard the things involved in the witness’s

testimony, a witness’s memory, the motive a witness has for testifying a certain way, a

witness’s manner while testifying, whether a witness has said something different at an

earlier time, the general reasonableness of a witness’s testimony and the extent to

which the witness’s testimony is consistent with other evidence that you believe.

Do not allow sympathy or prejudice to influence you. The law requires that your

verdict be just, that is, unaffected by anything except the evidence, your common sense,

and the law stated in my instructions.

Anything that I may say or do during the trial must not be taken by you as an

indication of what I think of the evidence or what I think your verdict should be.

Finally, please remember that only the defendant, and not anyone else, is on trial

here, and the defendant is on trial only for the crime or crimes charged, and not for

anything else.

INSTRUCTION NO. 22

REASONABLE DOUBT

The law presumes a defendant to be innocent of a crime. Thus a defendant,

although accused, begins the trial with a “clean slate” – with no evidence against him or

her. And the law permits nothing but legal evidence presented before the jury to be

considered in support of any charge against the accused. So the presumption of

innocence alone is sufficient to acquit a defendant, unless the jurors are satisfied

beyond a reasonable doubt of the defendant’s guilt after careful and impartial

consideration of all the evidence in the case.

It is not required that the government prove guilt beyond all possible doubt. The

test is one of reasonable doubt. A reasonable doubt is a doubt based upon reason and

common sense - the kind of doubt that would make a reasonable person hesitate to act

in the most important of his or her affairs.

Proof beyond a reasonable doubt must, therefore, be proof of such a convincing

character that a reasonable person would not hesitate to rely and act upon it in the most

important of his or her own affairs.

The jury will remember that a defendant is never to be convicted on mere

suspicion or conjecture. The burden is always on 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.

So, if the jury, after careful and impartial consideration of all the evidence in the

case, has a reasonable doubt that a defendant is guilty of a charge, it must acquit. If the

jury views the evidence in the case as reasonably permitting either of two conclusions --

one of innocence, the other of guilt -- the jury must, of course, adopt the conclusion of

innocence.

INSTRUCTION NO. 23

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

said, or only part of it, or none of it.

In deciding what testimony to believe, consider the witness’s intelligence, the

opportunity the witness had to have seen or heard the things testified about, the

witness’s memory, any motives that witness may have for testifying a certain way, the

manner of the witness while testifying, whether that witness said something different at

an earlier time, the 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 hear or see things differently and sometimes forget things. You need to

consider therefore whether a contradiction is an innocent misrecollection or lapse of

memory or an intentional falsehood, and that may depend on whether it has to do with

an important fact or only a small detail.

INSTRUCTION NO. 24

CREDIBILITY OF COOPERATING WITNESSES

You have heard evidence that witnesses Cesar Esqueda, Korina Freemont, Mary

Silvey, Rita Natoli, and John Pedrosa hope to receive a reduced sentence in return for

their cooperation with the government in this case. Each entered into an agreement

with the United States Attorney’s Office which provides that in return for their assistance,

the government may dismiss certain charges, or may recommend a less severe

sentence, which could be less than the mandatory minimum sentence, for the crimes to

which the witness pleaded guilty. Cesar Esqueda, Korina Freemont, Mary Silvey, and

John Pedrosa are each subject to a mandatory minimum sentence, that is, a

sentence that the law provides must be of a certain minimum length. If the prosecutor

handling this witness’ case believes the witness provided substantial assistance, that

prosecutor can file a motion to reduce his or her sentence below the statutory minimum.

The judge has no power to reduce a sentence for substantial assistance unless

the government, acting through the United States Attorney, files such a motion. If

such a motion for reduction of sentence for substantial assistance is filed by the

government, then it is up to the judge to decide whether to reduce the sentence at all,

and if so, how much to reduce it.

You may give the testimony of this witness such weight as you think it deserves.

Whether or not testimony of a witness may have been influenced by his or her hope of

receiving a reduced sentence is for you to decide.

INSTRUCTION NO. 25

IMPEACHMENT OF WITNESS:

PRIOR CONVICTIONS, PLEA AGREEMENTS, OR DRUG USE

You heard evidence that certain witnesses have been convicted of a felony, or a

crime of dishonesty, or a crime of giving false information. You should consider this

evidence, along with other pertinent evidence, in deciding whether or not to believe such

a witness and how much weight to give to the testimony of that witness.

You also heard testimony from certain witnesses who entered into non-

prosecution or plea agreements with the government. In evaluating the testimony of

such a witness you should consider whether that testimony may have been influenced

by the agreement with the government. Whether or not information or testimony given

by the witness may have been influenced by the possibility of receiving a reduced

sentence is for you to decide.

Finally, you heard testimony from persons who have abused drugs. In evaluating

the testimony of such a witness you should consider this evidence, along with other

pertinent evidence, in deciding whether or not to believe such a witness and how much

weight to give to the testimony of that witness.

INSTRUCTION NO. 26

NOTES

Some of you may have taken notes during the trial; others of you may have

chosen not to take notes. If you did take notes, remember that those notes are not

themselves evidence, but are instead merely memory aids. You must reach a verdict

based upon your independent recollection of the evidence presented during the trial, not

upon your notes or another juror’s notes. Notes are not entitled to any greater weight

than the recollection or impression of each juror as to what the testimony may have

been.

INSTRUCTION NO. 27

PREVIOUS TRIAL

You have heard that there was a previous trial of the defendant charged here.

Keep in mind, however, that you must decide this case solely on the evidence presented

to you in this trial. The fact of a previous trial must have no effect on your consideration

of this case.

INSTRUCTION NO. 28

OBJECTIVES OF THE CONSPIRACY

The grand jury charges that the defendant conspired to commit one or both of the

following separate offenses: 1) distribution of methamphetamine; and 2) distribution of

cocaine. The prosecution has to prove that the conspiracy had at least one of the

objectives alleged. You must unanimously agree on the offense alleged in the

indictment was proved to be the objective(s) of the conspiracy. If you cannot agree that

the defendant entered into a conspiracy to commit one or both of the objectives in the

conspiracy charged in Count I, then you must find the defendant not guilty of this

conspiracy charged in the indictment.

To assist you in determining whether there was an agreement to commit the

offenses alleged to be objectives of the conspiracy, you should consider the elements of

distribution of a controlled substance, which are the following:

1. A conspirator intentionally distributed controlled substances to another; and

2. At the time of the distribution, a conspirator knew that what he/she was

distributing was a controlled substance.

To find the defendant guilty of this “conspiracy” charge, you do not have to find

that all the offenses alleged to be an objective of the conspiracy were actually committed

by the defendant or anyone else. It is the agreement to commit such an offense that is

illegal; therefore, the illegal agreement is the conduct that has been charged in the

indictment, and it is the agreement that must be proved beyond a reasonable doubt to

establish the defendant’s guilt on this conspiracy charge.

INSTRUCTION NO. 29

ELECTION OF FOREPERSON; DUTY TO DELIBERATE

In conducting your deliberations and returning your verdict, there are certain rules

you must follow. I shall list those rules for you now.

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, it is your duty, as jurors, to discuss this case with one another in the jury

room. You should try to reach agreement because a verdict - whether guilty or not guilty

- must be unanimous. Each of you must make your own conscientious decision, but

only after you have considered all the evidence, discussed it fully with your fellow jurors,

and listened to the views of your fellow jurors. Do not be afraid to change your opinions

if the discussion persuades you that you should. But do not come to a decision simply

because other jurors think it is right, or simply to reach a verdict.

Third, if a defendant is found guilty, the sentence to be imposed is my

responsibility. You may not consider punishment in any way in deciding whether the

government has proved its case beyond a reasonable doubt.

Fourth, if you need to communicate with me during your deliberations, you may

send a note to me through the U.S. Marshal or courtroom deputy, 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.

Fifth, your verdict must be based solely on the evidence and on the law which I

have given to you in my instructions. The verdict, whether guilty or not guilty, must be

unanimous. Nothing I have said or done is intended to suggest what your verdict should

be - that is entirely for you to decide.

Finally, the 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, and when each of you has

agreed on verdicts for the defendant, your foreperson will fill in the form, sign and date it,

and advise the marshal or courtroom deputy that you are ready to return to the

courtroom.