MARVIN E. ASPEN, District Judge.
We have reviewed the parties' proposed jury instructions and verdict forms in preparation for trial, which is scheduled to begin on Monday, September 12, 2016. As discussed below, we preliminarily rule on the parties' objections and proposals. We attach hereto a set of all jury instructions (Exhibit A) and the verdict form (Exhibit B) that we intend to use at trial.
The parties jointly proposed, or declined to object to, certain instructions. There are no objections to the following: 1.01-1.09, 2.01, 2.01A, 2.03-2.04
Additionally, we decline to rule at this time on Defendant's proposed "School Zone Entrapment" instruction and Defendant's instruction 6.1: Defense Theory. To be entitled to an entrapment instruction, defendant must present evidence that: "(1) the government induced the crime, and (2) lack of predisposition on the part of the defendant to engage in the criminal activity." United States v. Schuttpelz, 467 Fed. Appx. 349, 353 (6th Cir. 2012). "A district court is justified in denying an entrapment instruction where the evidence `clearly and unequivocally establishes that [the defendant] was predisposed.'" United States v. Demmler, 655 F.3d 451, 457 (6th Cir. 2011). However, if either of the elements of entrapment are in dispute, entrapment presents a fact question for the jury. Id.; see also Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 886 (1988) ("The question of entrapment is generally one for the jury, rather than the court.") (internal citation omitted). We find that Defendant is entitled to attempt to prove his entrapment defense at trial. See United States v. Poulsen, 655 F.3d 492, 502 (6th Cir. 2011) ("[I]f [defendant] had provided evidence from which a reasonable jury could have found both that the government induced the crime . . . and that he was not predisposed to commit this crime, he would be entitled to an entrapment instruction.") Accordingly, we will rule on the appropriateness of a "School Zone Entrapment" instruction after Defendant rests. However, we note that Defendant's instruction 6.01 and School Zone Entrapment instruction will be not given as proposed. If we find that Defendant is entitled to an entrapment instruction, we will give an instruction in line with 6.01 and 6.03 of the pattern instructions. (See Exhibit A.)
Consistent with Rule 51, we will assume there are no objections to the instructions as proposed here, unless the parties file objections with supporting briefs (limited to one page per objection) on or by August 18, 2016. Our proposed final jury instructions shall be reviewed after all the evidence has been submitted at trial and before closing argument. Fed. R. Civ. P. 51.
We have also prepared a proposed verdict form (Exhibit B), which accurately and concisely conveys the questions for the jury's consideration. As with the jury instructions, we will assume there are no objections to the verdict form as proposed here, unless the parties file objections with supporting briefs (limited to one page) on or by August 18, 2016. It is so ordered.
(1) Members of the jury, now it is time for me to instruct you about the law that you must follow in deciding this case.
(2) I will start by explaining your duties and the general rules that apply in every criminal case.
(3) Then I will explain the elements, or parts, of the crime that the defendant is accused of committing.
(4) Then I will explain the defendant's position.
(5) Then I will explain some rules that you must use in evaluating particular testimony and evidence.
(6) And last, I will explain the rules that you must follow during your deliberations in the jury room, and the possible verdicts that you may return.
(7) Please listen very carefully to everything I say.
(1) You have two main duties as jurors. The first one is to decide what the facts are from the evidence that you saw and heard here in court. Deciding what the facts are is your job, not mine, and nothing that I have said or done during this trial was meant to influence your decision about the facts in any way.
(2) Your second duty is to take the law that I give you, apply it to the facts, and decide if the government has proved the defendant guilty beyond a reasonable doubt. It is my job to instruct you about the law, and you are bound by the oath that you took at the beginning of the trial to follow the instructions that I give you, even if you personally disagree with them. This includes the instructions that I gave you before and during the trial, and these instructions. All the instructions are important, and you should consider them together as a whole.
(3) The lawyers have talked about the law during their arguments. But if what they said is different from what I say, you must follow what I say. What I say about the law controls.
(4) Perform these duties fairly. Do not let any bias, sympathy or prejudice that you may feel toward one side or the other influence your decision in any way.
(1) As you know, the defendant has pleaded not guilty to the crime charged in the indictment. The indictment is not any evidence at all of guilt. It is just the formal way that the government tells the defendant what crime he is accused of committing. It does not even raise any suspicion of guilt.
(2) Instead, the defendant starts the trial with a clean slate, with no evidence at all against him, and the law presumes that he is innocent. This presumption of innocence stays with him unless the government presents evidence here in court that overcomes the presumption, and convinces you beyond a reasonable doubt that he is guilty.
(3) This means that the defendant has no obligation to present any evidence at all, or to prove to you in any way that he is innocent. It is up to the government to prove that he is guilty, and this burden stays on the government from start to finish. You must find the defendant not guilty unless the government convinces you beyond a reasonable doubt that he is guilty.
(4) The government must prove every element of the crime charged beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean proof beyond all possible doubt. Possible doubts or doubts based purely on speculation are not reasonable doubts. A reasonable doubt is a doubt based on reason and common sense. It may arise from the evidence, the lack of evidence, or the nature of the evidence.
(5) Proof beyond a reasonable doubt means proof which is so convincing that you would not hesitate to rely and act on it in making the most important decisions in your own lives. If you are convinced that the government has proved the defendant guilty beyond a reasonable doubt, say so by returning a guilty verdict. If you are not convinced, say so by returning a not guilty verdict.
(1) 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.
(2) 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;
(3) 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.
(4) 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.
(5) Make your decision based only on the evidence, as I have defined it here, and nothing else.
(
You should use your common sense in weighing the evidence. Consider it in light of your everyday experience with people and events, and give it whatever weight you believe it deserves. If your experience tells you that certain evidence reasonably leads to a conclusion, you are free to reach that conclusion.
(1) Now, some of you may have heard the terms "direct evidence" and "circumstantial evidence."
(2) Direct evidence is simply evidence like the testimony of an eyewitness which, if you believe it, directly proves a fact. If a witness testified that he saw it raining outside, and you believed him, that would be direct evidence that it was raining.
(3) Circumstantial evidence is simply a chain of circumstances that indirectly proves a fact. If someone walked into the courtroom wearing a raincoat covered with drops of water and carrying a wet umbrella, that would be circumstantial evidence from which you could conclude that it was raining.
(4) It is your job to decide how much weight to give the direct and circumstantial evidence. The law makes no distinction between the weight that you should give to either one, or say that one is any better evidence than the other. You should consider all the evidence, both direct and circumstantial, and give it whatever weight you believe it deserves.
(1) Another part of your job as jurors is to decide how credible or believable each witness was. This is your job, not mine. It is up to you to decide if a witness's testimony was believable, and how much weight you think it deserves. You are free to believe everything that a witness said, or only part of it, or none of it at all. But you should act reasonably and carefully in making these decisions.
(2) Let me suggest some things for you to consider in evaluating each witness's testimony.
(3) These are only some of the things that you may consider in deciding how believable each witness was. You may also consider other things that you think shed some light on the witness's believability. Use your common sense and your everyday experience in dealing with other people. And then decide what testimony you believe, and how much weight you think it deserves.
(1) One more point about the witnesses. Sometimes jurors wonder if the number of witnesses who testified makes any difference.
(2) Do not make any decisions based only on the number of witnesses who testified. What is more important is how believable the witnesses were, and how much weight you think their testimony deserves. Concentrate on that, not the numbers.
(1) There is one more general subject that I want to talk to you about before I begin explaining the elements of the crime charged.
(2) The lawyers for both sides objected to some of the things that were said or done during the trial. Do not hold that against either side. The lawyers have a duty to object whenever they think that something is not permitted by the rules of evidence. Those rules are designed to make sure that both sides receive a fair trial.
(3) And do not interpret my rulings on their objections as any indication of how I think the case should be decided. My rulings were based on the rules of evidence, not on how I feel about the case. Remember that your decision must be based only on the evidence that you saw and heard here in court.
(1) That concludes the part of my instructions explaining your duties and the general rules that apply in every criminal case. In a moment, I will explain the elements of the crime that the defendant is accused of committing.
(2) But before I do that, I want to emphasize that the defendant is only on trial for the particular crime charged in the indictment. Your job is limited to deciding whether the government has proved the crime charged.
(3) Also keep in mind that whether anyone else should be prosecuted and convicted for this crime is not a proper matter for you to consider. The possible guilt of others is no defense to a criminal charge. Your job is to decide if the government has proved this defendant guilty. Do not let the possible guilt of others influence your decision in any way.
(1) The defendant has been charged with several crimes. The number of charges is no evidence of guilt, and this should not influence your decision in any way. It is your duty to separately consider the evidence that relates to each charge, and to return a separate verdict for each one. For each charge, you must decide whether the government has presented proof beyond a reasonable doubt that the defendant is guilty of that particular charge.
(2) Your decision on one charge, whether it is guilty or not guilty, should not influence your decision on any of the other charges.
(1) Count One of the indictment accuses the defendant of a conspiracy to commit the crime of knowingly and intentionally distributing and possessing with intent to distribute a quantity of cocaine, in violation of federal law. It is a crime for two or more persons to conspire, or agree, to commit a criminal act, even if they never actually achieve their goal.
(2) A conspiracy is a kind of criminal partnership. For you to find the defendant guilty of the conspiracy charge, the government must prove each and every one of the following elements beyond a reasonable doubt:
(3) Now I will give you more detailed instructions on some of these terms.
(4) You must be convinced that the government has proved all of these elements beyond a reasonable doubt in order to find the defendant guilty of the conspiracy charge.
(1) Defendant is charged in Counts Two through Four with the crime of distribution of cocaine and possession of cocaine with intent to distribute. Defendant is also charged in Count Five with the crime of possession with intent to distribute cocaine base, that is, crack cocaine and cocaine. Cocaine and crack cocaine are controlled substances. For you to find a defendant guilty of distribution of cocaine or crack cocaine, you must find that the government has proved each and every one of the following elements beyond a reasonable doubt:
For you to find a defendant guilty of possession with intent to distribute cocaine or crack cocaine, you must find that the government has proved each and every one of the following elements beyond a reasonable doubt:
(2) Now I will give you more detailed instructions on some of these terms.
(3) In determining whether a defendant had the intent to distribute, you may consider all the facts and circumstances shown by the evidence, including the defendant's words and actions. Intent to distribute can be inferred from the possession of a large quantity of drugs, too large for personal use alone. You may also consider the estimated street value of the drugs, the purity of the drugs, the manner in which the drugs were packaged, the presence or absence of a large amount of cash, the presence or absence of weapons, and the presence or absence of equipment used for the sale of drugs. The law does not require you to draw such an inference, but you may draw it.
(4) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.
(1) In Counts Two and Three, defendant is charged with distributing and possessing with intent to distribute cocaine in or near the real property comprising a private elementary school. For you to find the defendant guilty of this crime, you must find that the government has satisfied the elements already set forth for proving that the defendant distributed, or possessed with the intent to distribute, cocaine.
(2) In addition, however, the government must also prove that the defendant distributed or possessed with the intent to distribute cocaine within 1,000 feet of a private elementary school. The defendant did not have to know, however, that his distribution or possession with the intent to distribute cocaine occurred within 1,000 feet of a private elementary school.
(3) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.
(1) If you find the defendant not guilty of possession with intent to distribute, then you must go on to consider whether the government has proved the lesser charge of possession of a controlled substance.
(2) The difference between these two crimes is that to convict the defendant of the lesser charge of possession of a controlled substance, the government does not have to prove that defendant intended to distribute cocaine or crack cocaine. This is an element of the greater charge, but not the lesser charge.
(1) The defendant is charged with the crime of possessing cocaine. Cocaine is a controlled substance. For you to find the defendant guilty of this crime, you must find that the government has proved each and every one of the following elements beyond a reasonable doubt:
(2) Now I will give you more detailed instructions on some of these terms.
(3) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.
(1) Next, I want to say a word about the dates mentioned in the indictment.
(2) The indictment charges that the crime happened "on or about" the specified dates. The government does not have to prove that the crime happened on that exact date. But the government must prove that the crime happened reasonably close to that date.
(3) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on each charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.
(1) Next, I want to explain something about proving a defendant's state of mind.
(2) Ordinarily, there is no way that a defendant's state of mind can be proved directly, because no one can read another person's mind and tell what that person is thinking.
(3) But a defendant's state of mind can be proved indirectly from the surrounding circumstances. This includes things like what the defendant said, what the defendant did, how the defendant acted, and any other facts or circumstances in evidence that show what was in the defendant's mind.
(4) You may also consider the natural and probable results of any acts that the defendant knowingly did [or did not do], and whether it is reasonable to conclude that the defendant intended those results. This, of course, is all for you to decide.
(1) Next, I want to explain something about possession. The government does not necessarily have to prove that the defendant physically possessed the controlled substance for you to find him guilty of this crime. The law recognizes two kinds of possession—actual possession and constructive possession. Either one of these, if proved by the government, is enough to convict.
(2) To establish actual possession, the government must prove that the defendant had direct, physical control over the cocaine or crack cocaine, and knew that he had control of it.
(3) To establish constructive possession, the government must prove that the defendant had the right to exercise physical control over the cocaine or crack cocaine, and knew that he had this right, and that he intended to exercise physical control over the cocaine or crack cocaine at some time, either directly or through other persons.
(4) For example, if you left something with a friend intending to come back later and pick it up, or intending to send someone else to pick it up for you, you would have constructive possession of it while it was in the actual possession of your friend.
(5) But understand that just being present where something is located does not equal possession. The government must prove that the defendant had actual or constructive possession of the cocaine or crack cocaine, and knew that he did, for you to find him guilty of this crime. This, of course, is all for you to decide.
(1) Next, I want to explain something about possession. To establish actual possession, the government must prove that the defendant had direct, physical control over the cocaine or crack cocaine, and knew that he had control of it.
(2) But understand that just being present where something is located does not equal possession. The government must prove that the defendant had possession of the cocaine or crack cocaine, and knew that he did, for you to find him guilty of this crime. This, of course, is all for you to decide.
(1) One more thing about possession. The government does not have to prove that the defendant was the only one who had possession of the cocaine or crack cocaine. Two or more people can together share actual or constructive possession over property. And if they do, both are considered to have possession as far as the law is concerned.
(2) But remember that just being present with others who had possession is not enough to convict. The government must prove that the defendant had either actual or constructive possession of the cocaine or crack cocaine, and knew that he did, for you to find him guilty of this crime. This, again, is all for you to decide.
(1) That concludes the part of my instructions explaining the elements of the crime. Next I will explain the defendant's position.
(2) The defense says _____________ [Instruction re Defendant's "School Zone Entrapment Theory" if Court determines appropriate]
(1) One of the questions in this case is whether the defendant was entrapped because the government orchestrated the crimes to occur within 1,000 feet of a school.
(2) To succeed on his entrapment defense, defendant must prove that the government selected the location of the crime with the sole intent to increase the defendant's sentence.
(3) If you find that the government had chosen the location simply to enhance the defendant's sentence, defendant must then show two related elements. One is that the defendant was not already willing to commit the crime. The other is that the government, or someone acting for the government, induced or persuaded the defendant to commit it.
(3) If the defendant was not already willing to commit the crime prior to first being approached by government agents or other persons acting for the government, and the government persuaded him to commit it, that would be entrapment. But if the defendant was already willing to commit the crime prior to first being approached by government agents or other persons acting for the government, it would not be entrapment, even if the government provided him with a favorable opportunity to commit the crime, or made the crime easier, or participated in the crime in some way.
(4) It is sometimes necessary during an investigation for a government agent to pretend to be a criminal, and to offer to take part in a crime. This may be done directly, or the agent may have to work through an informant or a decoy. This is permissible, and without more is not entrapment. The crucial question in entrapment cases is whether the government persuaded a defendant who was not already willing to commit a crime to go ahead and commit it.
(5) The government has the burden of proving beyond a reasonable doubt that the defendant was already willing to commit the crime prior to first being approached by government agents or other persons acting for the government. Let me suggest some things that you may consider in deciding whether the government has proved this:
(6) Consider all the evidence, and decide if the government has proved that the defendant was already willing to commit the crime. Unless the government proves this beyond a reasonable doubt, you must find the defendant not guilty.
That concludes the part of my instructions explaining the elements of the crime
(1) A defendant has an absolute right not to testify or present evidence. The fact that he did not testify or present any evidence cannot be considered by you in any way. Do not even discuss it in your deliberations.
(2) Remember that it is up to the government to prove the defendant guilty beyond a reasonable doubt. It is not up to the defendant to prove that he is innocent.
(1) You have heard the defendant testify. Earlier, I talked to you about the "credibility" or the "believability" of the witnesses. And I suggested some things for you to consider in evaluating each witness's testimony.
(2) You should consider those same things in evaluating the defendant's testimony.
(1) You have heard the testimony of several chemists, who testified as opinion witnesses.
(2) You do not have to accept the opinions of these witnesses. In deciding how much weight to give their opinions, you should consider the witnesses' qualifications and how they reached their conclusions. Also consider the other factors discussed in these instructions for weighing the credibility of witnesses.
(3) Remember that you alone decide how much of a witness's testimony to believe, and how much weight it deserves.
(1) You have heard the testimony of _________, who testified to both facts and opinions. Each of these types of testimony should be given the proper weight.
(2) As to the testimony on facts, consider the factors discussed earlier in these instructions for weighing the credibility of witnesses.
(3) As to the testimony on opinions, you do not have to accept ________'s opinion. In deciding how much weight to give it, you should consider the witness's qualifications and how he reached his conclusions along with the other factors discussed in these instructions for weighing the credibility of witnesses.
(4) Remember that you alone decide how much of a witness's testimony to believe, and how much weight it deserves.
(1) You have heard the testimony of _________. You have also heard that before this trial he made a statement that may be different from his testimony here in court.
(2) This earlier statement was brought to your attention only to help you decide how believable his testimony was. You cannot use it as proof of anything else. You can only use it as one way of evaluating his testimony here in court.
(1) You have heard the testimony of __________. You have also heard that before this trial he was convicted of a crime.
(2) This earlier conviction was brought to your attention only as one way of helping you decide how believable his testimony was. Do not use it for any other purpose. It is not evidence of anything else.
(1) You have heard the testimony of a paid informant in this case. You have also heard that he received money from the government in exchange for making controlled purchases of cocaine from the defendant.
(2) The use of paid informants is common and permissible. But you should consider the informant's testimony with more caution than the testimony of other witnesses. Consider whether his testimony may have been influenced by what the government gave him.
(3) Do not convict the defendant based on the unsupported testimony of such a witness, standing alone, unless you believe his testimony beyond a reasonable doubt.
(1) You have heard the testimony of ________. You have also heard that he was using during the time that he testified about, and that the government has promised him that he will not be prosecuted for [or will] in exchange for his testimony.
(2) It is permissible for the government to make such a promise. But you should consider ______'s testimony with more caution than the testimony of other witnesses. An addict may have a constant need for drugs, and for money to buy drugs, and may also have a greater fear of imprisonment because his supply of drugs may be cut off. Think about these things and consider whether his testimony may have been influenced by the government's promise.
(3) Do not convict the defendant based on the unsupported testimony of such a witness, standing alone, unless you believe his testimony beyond a reasonable doubt.
(1) You have heard the testimony of _______. You have also heard that the government has promised him that [he will not be prosecuted for] [he will] in exchange for his cooperation.
(2) It is permissible for the government to make such a promise. But you should consider _______'s testimony with more caution than the testimony of other witnesses. Consider whether his testimony may have been influenced by the government's promise.
(3) Do not convict the defendant based on the unsupported testimony of such a witness, standing alone, unless you believe his testimony beyond a reasonable doubt.
(1) You have heard that the court compelled the testimony of ______. You have also heard that his testimony cannot be used against him by the government except in a prosecution for perjury.
(2) You should consider __________'s testimony with more caution than the testimony of other witnesses. Consider whether his testimony may have been influenced by this grant of immunity.
(3) Do not convict the defendant based on the unsupported testimony of such a witness, standing alone, unless you believe that testimony beyond a reasonable doubt.
(1) You have heard the testimony of _______. You have also heard that he was involved in the same crime that the defendant is charged with committing. You should consider _______'s testimony with more caution than the testimony of other witnesses.
(2) Do not convict the defendant based on the unsupported testimony of such a witness, standing alone, unless you believe his testimony beyond a reasonable doubt.
[(3) The fact that has pleaded guilty to a crime is not evidence that the defendant is guilty, and you cannot consider this against the defendant in any way.]
(1) That concludes the part of my instructions explaining the rules for considering some of the testimony and evidence. Now let me finish up by explaining some things about your deliberations in the jury room, and your possible verdicts.
(2) The first thing that you should do in the jury room is choose someone to be your foreperson. This person will help to guide your discussions, and will speak for you here in court.
(3) Once you start deliberating, do not talk to the jury officer, or to me, or to anyone else except each other about the case. If you have any questions or messages, you must write them down on a piece of paper, sign them, and then give them to the jury officer. The officer will give them to me, and I will respond as soon as I can. I may have to talk to the lawyers about what you have asked, so it may take me some time to get back to you. Any questions or messages normally should be sent to me through your foreperson.
(4) One more thing about messages. Do not ever write down or tell anyone, including me, how you stand on your votes. For example, do not write down or tell anyone that you are split 6-6, or 8-4, or whatever your vote happens to be. That should stay secret until you are finished.
(1) Remember that you must make your decision based only on the evidence that you saw and heard here in court.
(2) During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry, or computer, the Internet, any Internet service, or any text or instant messaging service, any Internet chat room, blog, or website such as Facebook, MySpace, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict. In other words, you cannot talk to anyone on the phone, correspond with anyone, or electronically communicate with anyone about this case. You can only discuss the case in the jury room with your fellow jurors during deliberations. I expect you will inform me as soon as you become aware of another juror's violation of these instructions.
(3) You may not use these electronic means to investigate or communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom. Information on the Internet or available through social media might be wrong, incomplete, or inaccurate. You are only permitted to discuss the case with your fellow jurors during deliberations because they have seen and heard the same evidence you have. In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom. Otherwise, your decision may be based on information known only by you and not your fellow jurors or the parties in the case. This would unfairly and adversely impact the judicial process. A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a mistrial could result, which would require the entire trial process to start over.
(1) Your verdict, whether it is guilty or not guilty, must be unanimous.
(2) To find the defendant guilty, every one of you must agree that the government has overcome the presumption of innocence with evidence that proves his guilt beyond a reasonable doubt.
(3) To find him not guilty, every one of you must agree that the government has failed to convince you beyond a reasonable doubt.
(4) Either way, guilty or not guilty, your verdict must be unanimous.
(1) Now that all the evidence is in and the arguments are completed, you are free to talk about the case in the jury room. In fact, it is your duty to talk with each other about the evidence, and to make every reasonable effort you can to reach unanimous agreement. Talk with each other, listen carefully and respectfully to each other's views, and keep an open mind as you listen to what your fellow jurors have to say. Try your best to work out your differences. Do not hesitate to change your mind if you are convinced that other jurors are right and that your original position was wrong.
(2) But do not ever change your mind just because other jurors see things differently, or just to get the case over with. In the end, your vote must be exactly that—your own vote. It is important for you to reach unanimous agreement, but only if you can do so honestly and in good conscience.
(3) No one will be allowed to hear your discussions in the jury room, and no record will be made of what you say. So you should all feel free to speak your minds.
(4) Listen carefully to what the other jurors have to say, and then decide for yourself if the government has proved the defendant guilty beyond a reasonable doubt.
(1) If you decide that the government has proved the defendant guilty, then it will be my job to decide what the appropriate punishment should be.
(2) Deciding what the punishment should be is my job, not yours. It would violate your oaths as jurors to even consider the possible punishment in deciding your verdict.
(3) Your job is to look at the evidence and decide if the government has proved the defendant guilty beyond a reasonable doubt.
(1) I have prepared a verdict form that you should use to record your verdict.
(2) If you decide that the government has proved a charge against the defendant beyond a reasonable doubt, say so by having your foreperson mark the appropriate places on the form. If you decide that the government has not proved a particular charge against the defendant beyond a reasonable doubt, say so by having your foreperson mark the appropriate place on the form. Your foreperson should then sign the form, put the date on it, and return it to me.
Remember that the defendant is only on trial for the particular crime charged in the indictment. Your job is limited to deciding whether the government has proved the crime charged.
Let me finish up by repeating something that I said to you earlier. Nothing that I have said or done during this trial was meant to influence your decision in any way. You decide for yourselves if the government has proved the defendant guilty beyond a reasonable doubt.
(1) Remember that if you elected to take notes during the trial, your notes should be used only as memory aids. You should not give your notes greater weight than your independent recollection of the evidence. You should rely upon your own independent recollection of the evidence or lack of evidence and you should not be unduly influenced by the notes of other jurors. Notes are not entitled to any more weight than the memory or impression of each juror.
(2) Whether you took notes or not, each of you must form and express your own opinion as to the facts of the case.
We, the Jury, unanimously find the following:
1. With respect to the charge in Count One of the Indictment of conspiring to distribute and possess with intent to distribute a quantity of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance, beginning not later than on or about December 12, 2013, through on or about March 18, 2014, in violation of Title 21, United States Code, Section 846, we find the Defendant,
Proceed to question No. 2.
2. With respect to the charge in Count Two of the Indictment of knowingly and intentionally distributing and possessing with intent to distribute a quantity of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, on or about December 12, 2013, in violation of Title 21, United States Code, Section 841(a)(1), we find the Defendant,
INSTRUCTION: If you answered "Not Guilty" in response to question No. 2, proceed to question No. 2(b) and consider whether the defendant is guilty of the lesser-included charge. If you answered "Guilty" in response to question No. 2, proceed to question No. 2(a).
2(a). With respect to Count Two of the Indictment, do you find that the defendant,
Move on to question No. 3.
2(b). If you unanimously find defendant not guilty of the above charge or are unable to reach a unanimous decision on the above charge, with respect to Count Two of the Indictment, do you find that the defendant,
Move on to question No. 3.
3. With respect to the charge in Count Three of the Indictment of knowingly and intentionally distributing and possessing with intent to distribute a quantity of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, on or about January 10, 2014, in violation of Title 21, United States Code, Section 841(a)(1), we find the Defendant,
INSTRUCTION: If you answered "Not Guilty" in response to question No. 3, proceed to question 3(b) and consider whether the defendant is guilty of the lesser-included charge. If you answered "Guilty" in response to question No. 3, proceed to question No. 3(a). 3(a). With respect to Count Three of the Indictment, do you find that the defendant,
Move on to question No. 4. 3(b). If you unanimously find defendant not guilty of the above charge, with respect to Count Three of the Indictment, do you find that the defendant,
Move on to question No. 4.
4. With respect to the charge in Count Four of the Indictment of knowingly and intentionally distributing and possessing with intent to distribute a quantity of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, on or about February 7, 2014, in violation of Title 21, United States Code, Section 841(a)(1), we find the Defendant,
INSTRUCTION: If you answered "Not Guilty" in response to question No. 4, proceed to question No. 4(a) and consider whether the defendant is guilty of the lesser-included charge. If you answered "Guilty", procced to question No. 5.
4(a). If you unanimously find defendant not guilty of the above charge or are unable to reach a unanimous decision on the above charge, with respect to Count Four of the Indictment, do you find that the defendant,
Move on to question No. 5.
5. With respect to the charge in Count Five of the Indictment of knowingly and intentionally possessing with intent to distribute a quantity of a mixture and substance containing a detectable amount of cocaine or cocaine base, Schedule II controlled substances, on or about March 18, 2014, in violation of Title 21, United States Code, Section 841(a)(1), we find the Defendant,
INSTRUCTION: If you answered "Not Guilty" in response to question No. 5, proceed to question No. 5(a) and consider whether the defendant is guilty of the lesser-included charge. If you answered "Guilty", sign the bottom of this form and stop. 5(a). If you unanimously find defendant not guilty of the above charge or are unable to reach a unanimous decision on the above charge, with respect to Count Four of the Indictment, do you find that the defendant,
