ORDER REGARDING PRELIMINARY INSTRUCTIONS

JILL N. PARRISH, District Judge.

The court's trial order in this matter required the parties to submit joint proposed jury instructions and any separately proposed jury instructions by 5:00 p.m. on April 13, 2018. Neither party filed timely proposed instructions. Instead, the United States filed proposed instructions on April 16, and Mr. Garcia filed proposed instructions on April 23. And neither party has filed any objections to jury instructions submitted by the opposing party. The deadline to do so (April 16, 2018 at 5:00 p.m.) is long past.

After reviewing the parties' proposed instructions, the court has drafted a set of jury instructions. Included as an attachment to this order are the preliminary instructions. Counsel for both parties are instructed to review the attached instructions. Any objections must be submitted by tomorrow, April 27, 2018 at 3:00 p.m.

SO ORDERED.

PRELIMINARY INSTRUCTIONS

INSTRUCTION NO. 1:

WELCOME AND INTRODUCTION

Members of the Jury:

You have been selected and sworn as the jury to try the case of United States of America v. Mario Garcia. This is a criminal case, meaning that Mr. Garcia is accused of committing certain crimes. You will decide if he is guilty or not guilty.

This case is brought by the United States government. I will sometimes refer to the government as the prosecution and to Mr. Garcia as the defendant. The government is represented by two assistant United States attorneys, Drew Yeates and Stew Young. The defendant is represented by his lawyer, Bel-Ami de Montreux.

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. For now, I will give you some preliminary instructions and explain generally how the trial will proceed.

The first step in the trial will be the opening statements. An opening statement is a chance for the lawyers to describe the evidence they intend to present. The government will give its opening statement first. Defense counsel may choose to make an opening statement right after the government, wait until after all of the government's evidence has been presented, or not make one at all. An opening statement is not evidence, and it is not an argument. 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 opening statements, 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 that the lawyers agree to present by way of stipulation.

The government will offer its evidence first. After the government's evidence, the defendant's lawyer may present evidence, but he is not required to do so. He is not required to present evidence because the defendant is presumed innocent. It is the government's burden to prove the defendant's guilt beyond a reasonable doubt. However, if the defendant does present evidence, the government may then introduce rebuttal evidence.

After you have heard all of the evidence, I will give you additional instructions, and then the attorneys will make their closing arguments. You will then go to the jury room to deliberate and reach a verdict. Keep an open mind until then.

INSTRUCTION NO. 2:

ROLE OF JUDGE AND JURY

In any jury trial, there are, in effect, two judges. I am one, and you are the other.

I am the judge of the law. I will preside over the trial and decide what evidence is proper for your consideration. It is also my duty to explain to you the rules of law that you must follow and apply in arriving at your verdict.

You, as jurors, are the judges of the facts. You must weigh the evidence that will be presented and decide the case. However, in judging the facts and determining what actually happened, it is your sworn duty to follow all the rules of law as I explain them to you. I want to remind you of the promise you made and the oath you took. It is your duty to base your verdict solely upon the evidence, without prejudice or sympathy.

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 say or do, any suggestion as to what your verdict should be. That is entirely up to you.

INSTRUCTION NO. 3:

CHARGES AGAINST MR. GARCIA

The government has filed a document called an "indictment." The indictment charges the Mr. Garcia with three crimes: conspiring to distribute methamphetamine, conspiring to distribute heroin, and using or carrying a firearm during and in relation to a drug trafficking crime. The indictment is simply a description of the charge made by the government against the defendant. It is not evidence. The indictment will now be read.

[READ INDICTMENT]

Mr. Garcia has pleaded "not guilty," which means he denies committing the crimes charged by the government. It will be your duty to decide whether the government has proved beyond a reasonable doubt that Mr. Garcia is guilty of each of the crimes charged in the indictment. Mr. Garcia is not on trial for any act or any conduct not specifically charged in the indictment.

You may not find Mr. Garcia guilty unless all twelve of you unanimously find that the government has proved his guilt beyond a reasonable doubt. Every crime has component parts called "elements." The prosecution must prove each element beyond a reasonable doubt.

INSTRUCTION NO. 4:

PRESUMPTION OF INNOCENCE

Mr. Garcia is presumed by the law to be innocent. By pleading "not guilty" to the charges against him in the indictment, he has put at issue the elements of each of the offenses charged. The burden is on the government to establish each element of each charge by proof beyond a reasonable doubt.

In short, Mr. Garcia starts this trial with absolutely no evidence against him. The law does not require Mr. Garcia to prove his innocence or produce any evidence at all.

INSTRUCTION NO. 5:

DEFENDANT NOT TESTIFYING OR CALLING WITNESSES

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 Mr. Garcia has 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 if he decides not take the witness stand and testify or if he decides not to call any witnesses. Remember that it is up to the government to prove the defendant guilty beyond a reasonable doubt. The defendant is not required to prove his innocence.

INSTRUCTION NO. 6:

PROOF BEYOND A REASONABLE DOUBT

The law does not require Mr. Garcia to prove anything for you to find him not guilty. He does not have to testify, call witnesses, present evidence, or do anything else to prove his innocence.

Instead, the government has the burden of proving the defendant guilty beyond a reasonable doubt. If the government does not prove Mr. Garcia's guilt beyond a reasonable doubt, 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.

INSTRUCTION NO. 7:

NO BIAS OR PREJUDICE

As jurors, you will decide whether the defendant is guilty or not guilty. You are to perform this duty without bias or prejudice as to any party. You must not be influenced by any personal likes or dislikes, opinions, or sympathy. That means you must decide the case solely on the evidence before you.

INSTRUCTION NO. 8:

EVIDENCE

Evidence usually consists of the testimony and exhibits presented at trial. Testimony is what witnesses say under oath. Exhibits are things like documents, photographs, or other physical objects. The fact that the defendant has been accused of a crime and brought to trial is not evidence. What the lawyers say is not evidence. Their opening statements and closing arguments are not evidence.

INSTRUCTION NO. 9:

TYPES OF EVIDENCE

There are two kinds of evidence: direct and circumstantial. Direct evidence is testimony by a witness about what that witness personally saw, heard or did. Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which one can find another fact.

You may consider both direct and circumstantial evidence in deciding this case. The law permits you to give equal weight to both, but it is for you to decide how much weight to give to any evidence.

Statements and arguments of counsel are not evidence in the case. But, when the parties on both sides agree as to the existence of a fact, you must accept that fact as true.

Unless you are otherwise instructed, anything you may have seen or heard outside of the courtroom is not evidence and must be entirely disregarded.

INSTRUCTION NO. 10:

LIMITED PURPOSE EVIDENCE

Some evidence is admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose.

INSTRUCTION NO. 11:

CREDIBILITY OF WITNESSES

An important part of your job will be making judgments about the testimony of the witnesses who testify in this case. You are to determine which witnesses to believe, what parts of their testimony you believe, and what weight or value to give that testimony. In making these determinations, you may consider some or all of the following:

Whatever tests you use, the value of a witness' testimony is for you to determine.

INSTRUCTION NO. 12:

JUDGE'S QUESTIONS

During the course of the trial, I might ask a witness a question. Do not assume that I hold any opinion on the matters to which my question may have related. You as jurors may consider what evidence you deem relevant.

INSTRUCTION NO. 13:

OBJECTIONS

Rules govern what evidence may be presented to you. On the basis of these rules, the lawyers may object to proposed evidence. If they do, I will rule in one of two ways. If I sustain the objection, the proposed evidence will not be allowed. If I overrule the objection, the evidence will be allowed.

When I sustain an objection to a question, ignore the question and do not guess what the answer would have been. Sometimes I might order that evidence be stricken from the record and that you disregard or ignore the evidence. When I do so, you must not consider that evidence.

Do not evaluate the evidence on the basis of whether objections are made. Do not allow yourselves to be to be influenced by my rulings. If I receive evidence after it is objected to by one of the lawyers, that only means that you may have that evidence for your consideration. What weight or value you place upon it is still for you to determine.

You must not disfavor lawyers who make legal objections to evidence. That is their job.

INSTRUCTION NO. 14:

BENCH CONFERENCES

From time to time during the trial, it may become necessary for me to talk with the lawyers out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom or by calling a recess. Please understand that while you are waiting we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. We will do what we can to keep the number and length of these conferences to a minimum. I may not always grant a request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

INSTRUCTION NO. 15:

RULES APPLICABLE TO RECESSES

From time to time, I will call a recess. It may be for a few minutes or longer. During recesses, do not talk about this case with anyone—not family, not friends, not even each other. Until the trial is over, do not mingle or talk with the lawyers, parties, witnesses or anyone else connected with the case. Court clerks or bailiffs can answer general questions, such as the length of breaks or the location of restrooms. But they cannot comment about the case or anyone involved. The goal is to avoid the impression that anyone is trying to influence you improperly. If people involved in the case seem to ignore you outside of court, they are just following this instruction.

Until the trial is over, do not read or listen to any news reports about this case. Do not do any research or visit any locations related to this case. If you inadvertently hear or see news stories about the case, or if you observe anything that seems to violate this instruction, report it immediately to a clerk or bailiff.

INSTRUCTION NO. 16:

ELECTRONIC DEVICES

Jurors have caused serious problems during trials by using electronic communication technology. You may be tempted to use these devices to investigate the case or to share your thoughts about the trial with others.

You violate your oath as a juror if you conduct your own investigations or communicate about this trial with others, and you may face serious consequences if you do. Let me be clear: do not google the parties, witnesses, issues, or counsel; do not tweet, text, or blog about the trial; do not use your phone to gather or send information on the case; do not post updates about the trial on Facebook; do not use Wikipedia or other internet information sources to research issues related to the trial. Even using something as seemingly innocent as Google Maps can result in a mistrial.

Please understand that the rules of evidence and procedure have developed over hundreds of years in order to ensure the fair resolution of disputes. The fairness of the entire system depends on you reaching your decisions based on evidence presented to you in court—not based on outside information.

Post-trial investigations are common and can disclose these improper activities. If they are discovered, they will be brought to my attention, and the entire case might have to be retried at substantial cost.

INSTRUCTION NO. 17:

JURY'S MEMORY CONTROLS

At the end of the trial you will have to make your decision based on what you recall of the evidence. You will not have a written transcript to consult. I urge you to pay close attention to the testimony as it is given.

INSTRUCTION NO. 18:

NOTETAKING

If you wish, you may take notes to help you remember what a witness said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking prevent you from hearing other answers by the witnesses. When you leave at night, you must leave your notes in the jury room.

If you do not take notes, you should rely on your own memory of what was said and not be overly influenced by the notes of other jurors. If you take notes, remember that they are not evidence and may be incomplete. Do not be overly influenced by your notes. Rely on your own memory and the collective memory of the members of the jury.