FINAL PRETRIAL ORDER

MORRISON C. ENGLAND, Jr., District Judge.

A Trial Confirmation Hearing was held on March 2, 2017. Andre Espinosa and Katherine Lydon appeared as counsel for the United States. Timothy Zindel appeared as counsel for the Defendant, Helaman Hansen. After hearing, the Court makes the following findings and orders:

I. DATE AND LENGTH OF TRIAL

A trial is scheduled for April 17, 2017, at 9:00 a.m., in courtroom 7. The estimated length of trial is twelve (12) days. The Court will permit each side up to one (1) hour for closing arguments unless otherwise specifically ordered by the Court. The United States of America will be permitted to reserve time for rebuttal purposes but will be required to monitor any time so reserved.

II. MOTIONS IN LIMINE

Any motions in limine by either party shall be filed by March 27, 2017. Any opposition to those motions in limine shall be filed by April 3, 2017. Any reply shall be filed by April 10, 2017. Hearing on the motions in limine is April 13, 2017, at 11:00 a.m., in Courtroom 7.

III. AGREED STATEMENTS — JOINT STATEMENT OF CASE

It is mandatory the parties file a short, jointly-prepared statement concerning the nature of this case that will be read to the jury at the commencement of trial. The joint statement of the case shall include in plain concise language the claims of the United States of America and claims of other parties, if any. The purpose of the joint statement of the case is to inform the jury at the outset what the case is about. The statement must be filed by April 10, 2017.

IV. WITNESSES

The parties are ordered to file their respective witness lists on April 10, 2017. Each party may call a witness designated by the other. The parties must expressly reserve the right to call additional witnesses at trial.

V. EXHIBITS — SCHEDULES AND SUMMARIES

The parties are ordered to file their respective exhibit lists on April 10, 2017, in whatever format (i.e., hard copy or electronic) they agree upon. The parties must expressly reserve the right to offer additional exhibits at trial. No copies of exhibits, depositions and interrogatories shall be provided to the Clerk's Office or the Court. The parties are instead ordered to provide an electronic version of exhibits and their exhibit list to the Courtroom Deputy not later than April 10, 2017. The exhibit list should be in Microsoft Word and can be emailed to mceorders@caed.uscourts.gov. Exhibits shall be emailed to the same address. No email shall exceed 45 MB in size, and each email shall include in the subject line the case name, case number, and, if more than one email is submitted, a description indicating the number of emails being sent and the place the email occupies in the series (e.g., "1 of 10," "2 of 10," etc.).

If the exhibits are so numerous that submission will require in excess of 15 emails, the parties shall provide the electronic exhibits to the Courtroom Deputy on a jump drive (also known as, among other things, a flash drive, USB drive, etc.). Unless otherwise ordered by the Court, the parties shall retain custody of any physical exhibits incapable of being submitted electronically and shall remain responsible for the custody of those exhibits throughout the duration of the trial.

The United States of America's exhibits shall be listed numerically.

Defendant's exhibits shall be listed alphabetically. The parties shall use the standard exhibit stickers provided by the Court Clerk's Office. After three letters, note the number of letters in parenthesis (i.e., "AAAA(4)") to reduce confusion during the trial. All photographs must be marked individually.

Each party may use an exhibit designated by the other. In the event that The United States of America and the Defendant offer the same exhibit during trial, that exhibit shall be referred to by the designation the exhibit is first identified. The Court cautions the parties to pay attention to this detail so that all concerned, including the jury, will not be confused by one exhibit being identified by both the United States of America and the Defendant.

VI. PROPOSED JURY INSTRUCTIONS, VOIR DIRE, VERDICT FORM

A. Jury Instructions

Counsel shall primarily use the Ninth Circuit Model Jury Instructions and any revisions. However, instructions or authority may be submitted for the Court for approval. Attached for counsels' review are the Court's standard opening and closing instructions for your use, taken from the Ninth Circuit's Model Jury Instructions. If counsel has no objections to the Court's use of these opening and closing instructions, counsel need not submit their own opening and closing instructions.

The instructions must be filed by April 10, 2017, and shall be identified as the "Jury Instructions Without Objection."

All instructions shall be, to the extent possible, concise, understandable, and free from argument. See Local Rule 163(c). Parties shall also note that any modifications of instructions from statutory authority, case law or from any form of pattern instructions must specifically state the modification by underlining additions and bracketing deletions.

B. Verdict Form

The parties are ordered to file their respective proposed verdict form(s) on April 10, 2017.

C. Voir Dire

The parties are ordered to file their respective proposed voir dire on April 10, 2017. The Court reserves the right to conduct all examination of prospective jurors. Notwithstanding this reservation, the Court will permit each side up to ten (10) minutes to conduct further voir dire, if desired. The voir dire questions shall be filed with the Court by April 10, 2017.

D. Submission of Documents to the Court

At the time of filing their respective proposed jury instruction(s), verdict form(s) and witness list(s), counsel shall also electronically mail these filings to the Court, in Microsoft Word format. These documents must be sent to: mceorders@caed.uscourts.gov.

VII. CHOICE NOT TO FILE DOCUMENTS

Should either party choose not to file a trial brief, witness list, exhibit list, proposed voir dire, proposed jury instructions, or proposed verdict forms, that party must notify the Court in writing by March 27, 2017, that it will not be filing such documents.

VIII. AUDIO/VISUAL EQUIPMENT

The parties are required to electronically file a joint request to the Courtroom Deputy Clerk, Stephanie Deutsch, by March 27, 2017, if they wish to reserve and arrange for orientation with all parties on the Court's mobile audio/visual equipment for presentation of evidence. There will be one date and time for such orientation and all trial counsel and any assisting staff must be present at the training.

3.1 DUTIES OF JURY TO FIND FACTS AND FOLLOW LAW

Members of the jury, now that you have heard all the evidence, it is my duty to instruct you on the law that applies to this case. A copy of these instructions will be available in the jury room for you to consult.

It is your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. It is also your duty to apply the law as I give it to you to the facts as you find them, whether you agree with the law or not. You must decide the case solely on the evidence and the law and must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. You will recall that you took an oath promising to do so at the beginning of the case.

You must follow all these instructions and not single out some and ignore others; they are all important. Please do not read into these instructions or into anything I may have said or done any suggestion as to what verdict you should return—that is a matter entirely up to you.

3.2 CHARGE AGAINST DEFENDANT NOT EVIDENCE—PRESUMPTION OF INNOCENCE—BURDEN OF PROOF

The indictment is not evidence. The defendant has pleaded not guilty to the charge[s]. The defendant is presumed to be innocent unless and until the government proves the defendant guilty beyond a reasonable doubt. In addition, the defendant does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge[s] beyond a reasonable doubt.

3.3 DEFENDANT'S DECISION NOT TO TESTIFY

A defendant in a criminal case has a constitutional right not to testify. You may not draw any inference of any kind from the fact that the defendant did not testify.

3.4 DEFENDANT'S DECISION TO TESTIFY

The defendant has testified. You should treat this testimony just as you would the testimony of any other witness.

3.5 REASONABLE DOUBT—DEFINED

Proof beyond a reasonable doubt is proof that leaves you firmly convinced the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt.

A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence.

If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant not guilty. On the other hand, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the defendant guilty.

3.6 WHAT IS EVIDENCE

The evidence you are to consider in deciding what the facts are consists of:

3.7 WHAT IS NOT EVIDENCE

In reaching your verdict you may consider only the testimony and exhibits received in evidence. The following things are not evidence and you may not consider them in deciding what the facts are:

1. Questions, statements, objections, and arguments by the lawyers are not evidence. The lawyers are not witnesses. Although you must consider a lawyer's questions to understand the answers of a witness, the lawyer's questions are not evidence. Similarly, what the lawyers have said in their opening statements, have said in their closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers state them, your memory of them controls.

2. Any testimony that I have excluded, stricken, or instructed you to disregard is not evidence. [In addition, some evidence was received only for a limited purpose; when I have instructed you to consider certain evidence in a limited way, you must do so.]

3. Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.

3.8 DIRECT AND CIRCUMSTANTIAL EVIDENCE

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which you can find another fact.

You are to consider both direct and circumstantial evidence. Either can be used to prove any fact. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.

3.9 CREDIBILITY OF WITNESSES

In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.

In considering the testimony of any witness, you may take into account:

The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify. What is important is how believable the witnesses were, and how much weight you think their testimony deserves.

3.10 EVIDENCE OF OTHER ACTS OF DEFENDANT OR ACTS AND STATEMENTS OF OTHERS

You are here only to determine whether the defendant is guilty or not guilty of the charge[s] in the indictment. The defendant is not on trial for any conduct or offense not charged in the indictment.

4.1 STATEMENTS BY DEFENDANT

You have heard testimony that the defendant made a statement. It is for you to decide (1) whether the defendant made the statement, and (2) if so, how much weight to give to it. In making those decisions, you should consider all the evidence about the statement, including the circumstances under which the defendant may have made it.

4.6 IMPEACHMENT, PRIOR CONVICTION OF DEFENDANT

You have heard evidence that the defendant has previously been convicted of a crime. You may consider that evidence only as it may affect the defendant's believability as a witness. You may not consider a prior conviction as evidence of guilt of the crime for which the defendant is now on trial.

4.14 OPINION EVIDENCE, EXPERT WITNESS

You have heard testimony from persons who, because of education or experience, were permitted to state opinions and the reasons for their opinions.

Such opinion testimony should be judged like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness's education and experience, the reasons given for the opinion, and all the other evidence in the case.

4.15 SUMMARIES NOT RECEIVED IN EVIDENCE

During the trial, certain charts and summaries were shown to you in order to help explain the evidence in the case. These charts and summaries were not admitted in evidence and will not go into the jury room with you. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence.

4.16 CHARTS AND SUMMARIES IN EVIDENCE

Certain charts and summaries have been admitted in evidence. Charts and summaries are only as good as the underlying supporting material. You should, therefore, give them only such weight as you think the underlying material deserves.

5.6 KNOWINGLY — DEFINED

An act is done knowingly if the defendant is aware of the act and does not [act] [fail to act] through ignorance, mistake, or accident. [The government is not required to prove that the defendant knew that [his] [her] acts or omissions were unlawful.] You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.

5.7 DELIBERATE IGNORANCE

You may find that the defendant acted knowingly if you find beyond a reasonable doubt that the defendant:

You may not find such knowledge, however, if you find that the defendant actually believed that [e.g. no drugs were in the defendant's automobile], or if you find that the defendant was simply careless.

7.1 DUTY TO DELIBERATE

When you begin your deliberations, elect one member of the jury as your foreperson who will preside over the deliberations and speak for you here in court.

You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict, whether guilty or not guilty, must be unanimous.

Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.

Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right.

It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.

7.2 CONSIDERATION OF EVIDENCE

Because you must base your verdict only on the evidence received in the case and on these instructions, I remind you that you must not be exposed to any other information about the case or to the issues it involves. Except for discussing the case with your fellow jurors during your deliberations:

Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via email, text messaging, or any Internet chat room, blog, website or other feature. This applies to communicating with your family members, your employer, the media or press, and the people involved in the trial. If you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court.

Do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it; do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own.

The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address. A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. If any juror is exposed to any outside information, please notify the court immediately.

7.3 USE OF NOTES

Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by your notes or those of your fellow jurors.

7.4 JURY CONSIDERATION OF PUNISHMENT

The punishment provided by law for this crime is for the court to decide. You may not consider punishment in deciding whether the government has proved its case against the defendant beyond a reasonable doubt.

7.5 VERDICT FORM

A verdict form has been prepared for you. After you have reached unanimous agreement on a verdict, your foreperson should complete the verdict form according to your deliberations, sign and date it, and advise the Court Security Officer that you are ready to return to the courtroom.

7.6 COMMUNICATION WITH COURT

If it becomes necessary during your deliberations to communicate with me, you may send a note through the Court Security Officer, signed by any one or more of you. No member of the jury should ever attempt to communicate with me except by a signed writing, and I will respond to the jury concerning the case only in writing or here in open court. If you send out a question, I will consult with the lawyers before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone—including me—how the jury stands, numerically or otherwise, on any question submitted to you, including the question of the guilt of the defendant, until after you have reached a unanimous verdict or have been discharged.