IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

UNITED STATES OF AMERICA, ))

Plaintiff, ))

v. ))

TYRONE DAVIS, ))

Defendant. )))

8:06CR390

FINALJURY INSTRUCTIONS

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 he is innocent. Hence, even though the defendant stands charged, the

trial begins with no evidence against him.

INSTRUCTION NO. 3

CONSTITUTIONAL RIGHT NOT TO TESTIFY

Because a defendant is not required to prove his or her innocence, a defendant’s

decision to exercise his or 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 the attorney 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, Tyrone Davis, Case No. 8:06CR390. The parties to this criminal lawsuit are

the government, represented by Kimberly C. Bunjer, and defendant Tyrone Davis,

represented by Jeffrey L. Thomas. 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 on or about January 2006, through

December 2006, in the District of Nebraska, defendant Tyrone Davis knowingly and

intentionally combined, conspired, confederated, and agreed with other persons to

distribute and possess with the intent to distribute 5 grams or more of cocaine base (i.e.,

“crack cocaine”) in violation of 21 U.S.C. § 841(a)(1) and (b)(1), and 21 U.S.C. § 846.

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.

Count II of the indictment charges that on or about January 10, 2006, in the

District of Nebraska, defendant Tyrone Davis knowingly and intentionally distributed less

than 5

grams of cocaine base (i.e., “crack cocaine”) in violation of 21 U.S.C. § 841(a)(1) and

(b)(1).

Count III of the indictment charges that on or about October 18, 2006, in the

District of Nebraska, defendant Tyrone Davis knowingly and intentionally possessed with

the intent to distribute 5 grams or more of cocaine base (i.e., “crack cocaine”) in

violation of 21

U.S.C. § 841(a)(1) and (b)(1).

Count IV of the indictment, in accordance with 21 U.S.C. § 853, seeks forfeiture

of property defendant Tyrone Davis obtained directly or indirectly as a result of the

violations alleged in Counts I through III of the Indictment, including $2,940.00.

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

has pled not guilty, the law requires you to presume Mr. Davis 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

Defendant Tyrone Davis is charged in Count I of the indictment with conspiracy to

distribute and possess with the intent to distribute 5 grams or more of cocaine base (i.e.,

“crack 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 on or about January 2006 through December 2006, two or more

persons reached an agreement or came to a mutual understanding to

distribute or to possess with intent to distribute cocaine base (i.e., “crack

cocaine”) ;

2. Tyrone Davis 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 Tyrone Davis joined in the agreement or mutual understanding,

he knew the purpose of the agreement or mutual understanding was to

distribute or to possess with intent to distribute cocaine base (i.e., “crack

cocaine”); and

4. The amount of cocaine base (i.e., “crack cocaine”) involved in the

agreement or mutual understanding that the defendant distributed or

possessed with intent to distribute was 5 grams or more of cocaine base

(i.e., “crack cocaine”), as instructed in Instruction No. 17.

The government must convince you beyond a reasonable doubt that defendant

Tyrone Davis 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 Tyrone Davis not guilty of the conspiracy charge, even if you find that he 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

“AGREEMENT” EXPLAINED

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

by evidence beyond a reasonable doubt, must prove that defendant Tyrone Davis

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 Tyrone Davis 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 Tyrone Davis’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 Tyrone Davis.

INSTRUCTION NO. 13

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. 14

COUNT I: CONSPIRACY

CO-CONSPIRATORS’ ACTS AND STATEMENTS

You may consider acts knowingly done and statements knowingly made by

Tyrone Davis’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

Tyrone Davis. This includes acts done or statements made before Tyrone Davis 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. 15

COUNT II: DISTRIBUTION OF A CONTROLLED SUBSTANCE

The crime of distributing cocaine base (i.e. “crack cocaine”), as charged in Count

II of the indictment, has four essential elements, which are:

1. On or about January 10, 2006, the defendant, Tyrone Davis, possessed

cocaine base (i.e., “crack cocaine”);

2. The defendant intentionally transferred cocaine base (i.e., “crack cocaine”)

to another person;

3. At the time of the transfer, the defendant Tyrone Davis knew that the

substance was cocaine base (i.e., “crack cocaine”); and

4. The amount involved in the offense was less than 5 grams of cocaine base

(i.e., “crack cocaine”).

If all of these elements have been proved beyond a reasonable doubt as to

Tyrone Davis, then you must find Tyrone Davis guilty of the crime charged under Count

II; otherwise you must find Tyrone Davis not guilty of this crime under Count II.

INSTRUCTION NO. 16

COUNT III: POSSESSION WITH INTENT TO DISTRIBUTE

The crime of possession of crack cocaine with intent to distribute, as charged in

Count III of the indictment, has four elements, which are:

1. On or about October 18, 2006, the defendant, Tyrone Davis, was in

possession of cocaine base (i.e., “crack cocaine”);

2. The defendant knew that he was in possession of cocaine base (i.e.,

“crack cocaine”);

3. The defendant intended to distribute some or all of the cocaine base (i.e.,

“crack cocaine”) to another person; and

4. The amount involved in the offense was 5 grams or more of cocaine base

(i.e., “crack cocaine”).

If all of these elements have been proved beyond a reasonable doubt as to

Tyrone Davis, then you must find Tyrone Davis guilty of the crime charged under Count

III; otherwise you must find Tyrone Davis not guilty of this crime under Count III.

INSTRUCTION NO. 17

QUANTITY

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

offenses charged in Counts I, II, and III 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 includes

the controlled substances the defendant possessed for personal use, possessed with

intent to distribute, distributed or agreed to distribute. As to the conspiracy charge in

Count I, 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. 18

“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. 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

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. 21

“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. 22

INTRODUCTION

Members of the jury, the instructions I gave you at the beginning of the trial and

during the trial remain in effect. I now give you some additional instructions. You must

continue to follow the instructions I gave you earlier as well as those I give you now. Do

not single out some instructions and ignore others. I urge you to review the instructions

I gave you at the beginning of the trial before you begin to deliberate. You should take

your notebooks to the jury room with you.

INSTRUCTION NO. 23

AIDING AND ABETTING

A person also may be found guilty of distribution even if he did not personally do

every act constituting the offenses charged if he aided and abetted the commission of

distribution of less than 5 grams of cocaine base (i.e., crack cocaine).

In order to have aided and abetted the commission of a crime, a person must,

before the time the crime was committed:

(1) have known a distribution of cocaine base (i.e., crack cocaine) was being

committed or going to be committed;

(2) have knowingly acted in some way for the purpose of aiding the

commission of the distribution of cocaine base (i.e., crack cocaine); and

(3) have known cocaine base (i.e., crack cocaine) was going to be distributed.

For you to find the defendant guilty of distribution of less than 5 grams of cocaine

base (i.e., crack cocaine) by reason of aiding and abetting, the government must prove

beyond a reasonable doubt that all the essential elements of distribution of cocaine base

(i.e., crack cocaine) were committed by some person or persons and that the defendant

aided and abetted the commission of that crime.

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 become an aider and abettor. A person who has no knowledge

that a crime is being committed or about to be committed, but who happens to act in a

way which advances some offense, does not thereby become an aider and abettor.

INSTRUCTION NO. 24

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.

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.

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 that the defendant is guilty and the other that the defendant is not guilty—the

jury must, of course, adopt the conclusion that the defendant is not guilty.

INSTRUCTION NO. 25

REASONABLE INFERENCES

While you should consider only the evidence in the case, you are permitted to

draw reasonable inferences from the testimony and exhibits that you feel are justified in

the light of common experience. In other words, you may make deductions and reach

conclusions which reason and common sense lead you to draw from the facts which

have been established by the testimony and evidence in the case.

INSTRUCTION NO. 26

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. 27

CREDIBILITY OF COOPERATING WITNESSES

You have heard evidence that Ashley Phillips, Michael McKinney, and Jonathon

Bratton have received a promise from the government that they will not be prosecuted in

Federal Court and have received a promise from the government that their testimony will

not be used against them in a criminal case. Their respective testimonies were received

in evidence and may be considered by you. You may give their testimony such weight

as you think it deserves. Whether or not their testimony may have been influenced by

the government's promise is for you to determine.

A witness’s guilty plea cannot be considered by you as any evidence of this

defendant's guilt. A witness’s guilty plea can be considered by you only for the purpose

of determining how much, if at all, to rely upon the witness's testimony.

INSTRUCTION NO. 28

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. 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 the 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 a verdict 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.

INSTRUCTION NO. 30

CRIMINAL FORFEITURE OF PROPERTY

Members of the jury, you have reached a verdict that the defendant is guilty of

conspiracy to distribute or to possess with intent to distribute cocaine base (i.e., "crack

cocaine"), or possession with intent to distribute cocaine base (i.e., "crack cocaine") as

charged in Counts I, II, or III of the indictment. You now have one more task to perform.

You must decide if certain property, that is $2,940.00 in United States currency, is

subject to forfeiture by Tyrone Davis to the United States. Forfeiture means the

defendant loses any ownership or interest he has, or claims to have, in the property, as

a part of the penalty for engaging in criminal activity.

You need not concern yourself with any other person’s interest in the property. I

will take care of any such claims. Your only concern is with defendant Tyrone Davis’s

interest in the property.

The United States alleges that the property should be forfeited because it was

derived from proceeds of the defendant's drug offenses or was used or intended to be

used by the defendant to facilitate the commission of the drug offenses. Count IV of the

indictment alleges that $2,940.00 in United States currency is related to the crimes

charged in Counts I, II, or III of the indictment.

You must determine what property, if any, is subject to forfeiture. Property is

subject to forfeiture if the United States has proved, by a preponderance of the

evidence, either

1. that the property constituted or was derived from any proceeds the

defendant obtained, directly or indirectly, as a result of the offense of

which he has been found guilty, or

2. the property was used or was intended to be used, in any manner or part,

to commit or to facilitate the commission of an offense of which the

defendant has been found guilty.

Property “derived” from the proceeds of drug violations includes any property

obtained (directly or indirectly) using money or any other source of wealth gained as a

result of having participated in drug violations. Property that “facilitates” the commission

of drug violations includes property which makes the commission of the violations easier

or is used to assist in the commission of the violation.

You may, but are not required to, find that property is subject to forfeiture if the

United States has proved by a preponderance of the evidence that:

a. such property was acquired by the defendant during the period the

defendant was committing the offenses of which he has been found guilty

or within a reasonable time after the commission of those offenses, and

b. there was no likely source for such property other than the offenses for

which the defendant has been found guilty.

To prove something by a preponderance of the evidence is to prove that it is

more likely true than not true. The decision is made by considering all of the evidence

on the subject and deciding which evidence you believe. Each party is entitled to the

benefit of all evidence received, regardless of who offered the evidence. A

preponderance of the evidence is a lesser standard than proof beyond a reasonable

doubt.

Property subject to forfeiture may include currency, whether or not the property

has been seized by the United States.

All of my previous instructions regarding Credibility of Witnesses and Duty to

Deliberate apply with respect to this special verdict.

A Special Verdict Form for Count IV, forfeiture, has been prepared for your use.

With respect to the property, you are asked to determine unanimously whether it is to be

forfeited to the United States.

You may answer by simply putting an “X” or a check mark in the space provided

next to the words “yes” or “no.” The foreperson must then sign and date the special

verdict form.