Opinion
21 Cr. 499 (PAE)
10-21-2022
UNITED STATES OF AMERICA v. DAVON MIAL, Defendant
JURY CHARGE
Contents
I. General Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Introductory Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
B. Role of the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. Role of the Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D. Role of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
E. Sympathy or Bias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
F. All Persons Equal Before the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
G. Presumption of Innocence; Burden of Proof; Reasonable Doubt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
H. What Is and Is Not Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
I. Direct and Circumstantial Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
J. Witness Credibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
K. Bias/Interest of Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
L. Preparation of Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
M. Law Enforcement Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
N. Undercover Operations and Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
O. Expert Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
P. Stipulations of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Q. Stipulations of Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
R. Audio and Video Recordings; Transcripts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
S. Use of Charts and Tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
T. Electronic Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
U. Use of Evidence Obtained Pursuant to Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
V. Particular Investigative Techniques Not Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
W. Uncalled Witnesses-Equally Available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
X. Persons Not on Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Y. Defendant's Right Not to Testify . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
II. Substantive Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. The Indictment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. Narcotics Conspiracy (Count One) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1. First Element: Existence of the Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
a. Objects of the Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
b. Time and Scope of the Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
c. Meaning of “Distribute” and “Possess with Intent to Distribute” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2. Second Element: Membership in the Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
a. “Unlawfully,” “Intentionally” and “Knowingly” Defined . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
b. Drug Quantity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3. Additional Instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
a. Liability for Acts and Statements of Co-Conspirator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
b. Substantive Offenses and Their Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
C. Distribution or Possession with the Intent to Distribute Controlled Substances (Counts Two through Six) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1. First Element: Distribution or Possession with Intent to Distribute a Controlled Substance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2. Second Element: Intentionally and Knowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3. Third Element: Controlled Substance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
4. Additional Instruction: Drug Quantity and Purity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
D. Motive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
E. Variance in Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
F. Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
III. Deliberations of the Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
A. Right to See Exhibits and Hear Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
B. Communication with the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
C. Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
D. Duty to Deliberate; Unanimous Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
E. Verdict Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
F. Duties of Foreperson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
G. Return of Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
IV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
I. General Instructions
A. Introductory Remarks
Members of the jury, you have now heard all of the evidence in the case as well as the final arguments of the parties. You have paid careful attention to the evidence, and I am confident that you will act together with fairness and impartiality to reach a just verdict in the case.
Now it is time for me to instruct you as to the law that governs the case. There are three parts to these instructions. First, I'm going to give you some general instructions about your role, and about how you are to decide the facts of the case. These instructions really would apply to just about any trial. Second, I'll give you some specific instructions about the legal rules applicable to this particular case. Third, I'll give you some final instructions about procedure.
Listening to these instructions may not be easy. It is important however that you listen carefully and concentrate. I ask you for patient cooperation and attention. You'll notice that I'm reading these instructions from a prepared text. As I said earlier, it would be livelier, no doubt, if I just improvised. But it's important that I not do that. The law is made up of words, and those words are very carefully chosen. So, when I tell you the law, it's critical that I use exactly the right words.
Again, you'll have copies of what I'm reading in the jury room to consult, so don't worry if you miss a word or two. But for now, listen carefully and try to concentrate on what I'm saying.
B. Role of the Court
I have instructed you during the trial as to various matters, and you should of course continue to follow those instructions. My duty at this point is to instruct you as to the law. It is your duty to accept these instructions of law and to apply them to the facts as you determine them. With respect to legal matters, you must take the law as I give it to you. If any attorney has stated a legal principle different from any that I state to you in my instructions, it is my instructions that you must follow. You must not substitute your own notions or opinions of what the law is or ought to be.
C. Role of the Jury
As members of the jury, you are the sole and exclusive judges of the facts. You pass upon the evidence. You determine the credibility of the witnesses. You resolve such conflicts as there may be in the testimony. You draw whatever reasonable inferences you decide to draw from the facts as you have determined them, and you determine the weight of the evidence.
Do not conclude from any of my questions or any of my rulings on objections or anything else I have done during this trial that I have any view as to the credibility of the witnesses or how you should decide the case.
It is your sworn duty, and you have taken the oath as jurors, to determine the facts. Any opinion I might have regarding the facts is of absolutely no consequence.
D. Role of Counsel
It is the duty of the attorneys to object when the other side offers testimony or other evidence that the attorney believes is not properly admissible. It is my job to rule on those objections. Therefore, why an objection was made or why I ruled on it the way I did is not your business. You should draw no inference from the fact that an attorney objects to any evidence. Nor should you draw any inference from the fact that I might have sustained or overruled an objection.
The personalities and the conduct of counsel in the courtroom are not in any way at issue. If you formed reactions of any kind to any of the lawyers in the case, favorable or unfavorable, whether you approved or disapproved of their behavior as advocates, those reactions should not enter into your deliberations.
From time to time, the lawyers and I had conferences out of your hearing. These conferences involved procedural and other matters, and none of the events relating to these conferences should enter into your deliberations at all.
E. Sympathy or Bias
Under your oath as jurors, you are not to be swayed by sympathy or prejudice. All of us, no matter how hard we try, tend to look at others and weigh what they have to say through the lens of our own experience and background. We each have a tendency to stereotype others and make assumptions about them. Often, we see life and evaluate evidence through a clouded filter that tends to favor those like ourselves. You must do the best you can to put aside such stereotypes, for all litigants and witnesses are entitled to a level playing field in which we do the best we can to put aside our stereotypes and prejudices. You are to be guided solely by the evidence in this case, and the crucial, bottom-line question that you must ask yourselves as you sift through the evidence is: has the Government proven the guilt of the defendant beyond a reasonable doubt?
It is for you alone to decide whether the Government has proven that the defendant is guilty of the crimes charged. You must decide solely on the basis of the evidence presented, subject to the law as I explain it to you. It must be clear to you that once you let fear or prejudice, or bias or sympathy, interfere with your thinking, there is a risk that you will not arrive at a true and just verdict.
If you have a reasonable doubt as to the defendant's guilt, you should not hesitate for any reason to find a verdict of acquittal for the defendant. But on the other hand, if you should find that the Government has met its burden of proving the defendant's guilt beyond a reasonable doubt, you should not hesitate, because of sympathy or any other reason, to render a verdict of guilty.
The question of possible punishment of the defendant is of no concern to the jury and should not enter into or influence your deliberations. The duty of imposing sentence rests exclusively upon the Court. Your function is to weigh the evidence in the case and to determine whether or not the defendant is guilty beyond a reasonable doubt, solely upon the basis of such evidence. Under your oath as jurors, you cannot allow a consideration of the punishment which may be imposed upon the defendant, if he is convicted, to influence your verdict, in any way, or, in any sense, enter into your deliberations.
Similarly, it would be improper for you to allow any feelings you might have about the nature of the crimes charged to interfere with your decision-making process. Your verdict must be based exclusively upon the evidence or the lack of evidence in the case.
F. All Persons Equal Before the Law
In reaching your verdict, you must remember that all parties stand equal before a jury in the courts of the United States. The fact that the Government is a party, and the prosecution is brought in the name of the United States, does not entitle the Government or its witnesses to any greater consideration than that accorded to any other party. By the same token, you must give it no less deference. The Government and the defendant stand on equal footing before you.
It would be improper for you to consider, in reaching your decision as to whether the Government sustained its burden of proof, any personal feelings you may have about the defendant's race, religion, national origin, sex, or age. All persons are entitled to the same presumption of innocence, and the Government has the same burden of proof with respect to all persons. Your verdict must be based solely on the evidence or the lack of evidence.
G. Presumption of Innocence; Burden of Proof; Reasonable Doubt
Now I will instruct you on the presumption of innocence-the Government's burden of proof in this case. The defendant has pleaded not guilty. By doing so, he denies the charges in the Indictment. Thus, the Government has the burden of proving the charges against the defendant beyond a reasonable doubt. The defendant does not have to prove his innocence. On the contrary, he is presumed to be innocent of the charge contained in the Indictment. This presumption of innocence was in the defendant's favor at the start of the trial, continued in his favor throughout the entire trial, is in his favor even as I instruct you now, and continues in his favor during the course of your deliberations in the jury room.
It is removed if and only if you, as members of the jury, are satisfied that the Government has sustained its burden of proving the guilt of the defendant beyond a reasonable doubt.
The question that naturally comes up is-what is a reasonable doubt? The words almost define themselves. It is a doubt founded in reason and arising out of the evidence in the case, or the lack of evidence. It is doubt that a reasonable person has after carefully weighing all the evidence. Reasonable doubt is a doubt that appeals to your reason, your judgment, your experience, and your common sense. Reasonable doubt does not mean beyond all possible doubt. It is practically impossible for a person to be absolutely and completely convinced of any disputed fact that by its nature is not susceptible of mathematical certainty. In consequence, the law in a criminal case is that it is sufficient if the guilt of the defendant is established beyond a reasonable doubt, not beyond all possible doubt.
If, after a fair and impartial consideration of all the evidence, you are not satisfied of the defendant's guilt, if you do not have an abiding conviction of the defendant's guilt-in sum, if you have such a doubt as would cause you, as prudent persons, to hesitate before acting in matters of importance to yourselves-then you have a reasonable doubt, and in that circumstance it is your duty to acquit the defendant.
On the other hand, if after a fair and impartial consideration of all the evidence you do have an abiding belief of the defendant's guilt, such a belief as you would be willing to act upon without hesitation in important matters in the personal affairs of your own life, then you have no reasonable doubt, and under such circumstances it is your duty to convict the defendant.
The Government is not required to prove the essential elements of an offense by any particular number of witnesses. The testimony of a single witness may be sufficient to convince you beyond a reasonable doubt of the existence of the essential elements of the offense you are considering if you believe that the witness has truthfully and accurately related what he or she has told you.
H. What Is and Is Not Evidence
In determining the facts, you must rely upon your own recollection of the evidence. The evidence in this case is the sworn testimony of the witnesses, the exhibits received in evidence, and the stipulations of the parties.
However, testimony that I have stricken or excluded is not evidence and may not be considered by you in rendering your verdict. Also, if certain testimony was received for a limited purpose, you must follow the limiting instructions I have given, and use the evidence only for the purpose I indicated.
The only exhibits that are evidence in this case are those that were received in evidence. Exhibits marked for identification but not admitted are not evidence, nor are materials that were used only to refresh a witness's recollection.
As I told you at the start of this case, statements and arguments by lawyers are not evidence, because the lawyers are not witnesses. What they have said to you in their opening statements and in their summations is intended to help you understand the evidence to reach your verdict. However, if your recollection of the facts differs from the lawyers' statements, it is your recollection that controls.
For the same reasons, you are not to consider a lawyer's questions as evidence. It is the witnesses' answers that are evidence, not the lawyers' questions.
Finally, any statements that I may have made do not constitute evidence. It is for you alone to decide the weight, if any, to be given to the testimony you have heard and the exhibits you have seen.
I. Direct and Circumstantial Evidence
Generally, as I mentioned at the start of the case, there are two types of evidence that you may consider in reaching your verdict. One type of evidence is direct evidence. Direct evidence is testimony by a witness about something he knows by virtue of his own senses-something he has seen, felt, touched, or heard. For example, if a witness testified that when he left his house this morning, it was raining, that would be direct evidence about the weather.
Circumstantial evidence is evidence from which you may infer the existence of certain facts. To use the same example I gave you at the start of trial: Assume that when you came into the Courthouse this morning, the sun was shining and it was a nice day outdoors. Also assume that the courtroom blinds were drawn, and you could not look outside. Assume further that, as you were sitting here, someone walked in with an umbrella that was dripping wet, and then, a few moments later, somebody else walked in with a raincoat that was also dripping wet. Now, because you could not look outside the courtroom, and you could not see whether it was raining, you would have no direct evidence of the fact that it was raining. But, on the combination of facts that I have asked you to assume, it would be reasonable and logical for you to conclude that it was raining.
That is all there is to circumstantial evidence. You infer on the basis of reason and experience and common sense from one established fact the existence or non-existence of some other fact.
As you can see, the matter of drawing inferences from facts in evidence is not a matter of guesswork or speculation. An inference is a logical, factual conclusion which you might reasonably draw from other facts that have been proven. Many material facts-such as what a person was thinking or intending-can rarely be proved by direct evidence.
Circumstantial evidence is as valuable as direct evidence. The law makes no distinction between direct and circumstantial evidence, but simply requires that before convicting the defendant, the jury must be satisfied of the defendant's guilt beyond a reasonable doubt, based on all the evidence in the case, circumstantial and direct.
There are times when different inferences may be drawn from the evidence. The Government asks you to draw one set of inferences. The defendant may ask you to draw another. It is for you, and for you alone, to decide what inferences you will draw.
J. Witness Credibility
You have had the opportunity to observe the witnesses. It is now your job to decide how believable each witness was in his or her testimony. You are the sole judges of the credibility of each witness and of the importance of his or her testimony.
You should carefully scrutinize all of the testimony of each witness, the circumstances under which each witness testified, the impression the witness made when testifying, the relationship of the witness to the controversy and the parties, the witness's bias or impartiality, the reasonableness of the witness's statement, the strength or weakness of the witness's recollection when viewed in the light of all other testimony, and any other matter in evidence that may help you decide the truth and the importance of each witness's testimony.
In other words, what you must try to do in deciding credibility is to size a witness up in light of his or her demeanor, the explanations given, and all of the other evidence in the case. You should use your common sense, your good judgment, and your everyday experiences in life to make your credibility determinations.
In passing upon the credibility of a witness, you may also take into account any inconsistencies or contradictions as to material matters in his or her testimony.
If you find that any witness has willfully testified falsely as to any material fact, you have the right to reject the testimony of that witness in its entirety. On the other hand, even if you find that a witness has testified falsely about one matter, you may reject as false that portion of his or her testimony and accept as true any other portion of the testimony which commends itself to your belief or which you may find corroborated by other evidence in this case. A witness may be inaccurate, contradictory, or even untruthful in some aspects, and yet be truthful and entirely credible in other aspects of his or her testimony.
The ultimate question for you to decide in passing upon credibility is: did the witness tell the truth before you? It is for you to say whether his or her testimony at this trial was truthful in whole or in part.
K. Bias/Interest of Witnesses
In deciding whether to believe a witness, you should specifically note any evidence of hostility or affection that the witnesses may have towards one of the parties. Likewise, you should consider evidence of any other interest or motive that the witness may have in cooperating with a particular party. You should also take into account any evidence of any benefit that a witness may receive from the outcome of the case.
It is your duty to consider whether the witness has permitted any such bias or interest to color his or her testimony. In short, if you find that a witness is biased, you should view his or her testimony with caution, weigh it with care, and subject it to close and searching scrutiny. Of course, the mere fact that a witness is interested in the outcome of the case does not mean he or she has not told the truth. It is for you to decide from your observations and applying your common sense and experience and all the other considerations mentioned whether the possible interest of any witness has intentionally or otherwise colored or distorted his or her testimony. You are not required to disbelieve an interested witness; you may accept as much of his or her testimony as you deem reliable and reject as much as you deem unworthy of acceptance.
L. Preparation of Witnesses
You have heard evidence during the trial that witnesses had discussed the facts of the case and their testimony with the lawyers before the witnesses appeared in court. Although you may consider that fact when you are evaluating a witness's credibility, I should tell you that there is nothing either unusual or improper about a witness meeting with lawyers before testifying, so that the witness can be made aware of the subjects that he or she will be questioned about, focus on those subjects, and have the opportunity to review relevant exhibits before being questioned about them. In fact, it would be unusual for a lawyer to call a witness without such consultation. Again, the weight you give to the fact or the nature of the witness's preparation for his or her testimony and what inferences you draw from such preparation are matters completely within your discretion.
M. Law Enforcement Witnesses
You have heard the testimony of several employees of law enforcement agencies. The fact that a witness may be employed by a law enforcement agency does not mean that his or her testimony is necessarily deserving of more or less consideration or greater or lesser weight than that of an ordinary witness.
It is your decision, after reviewing all the evidence, whether to accept the testimony of these witnesses and to give to that testimony whatever weight, if any, you find it deserves.
N. Undercover Operations and Witness
You have heard evidence during the course of this trial that law enforcement officers utilized operations by an undercover officer. In other words, an undercover officer pretended to be a user of narcotics and sought to buy quantities of those narcotics from others. You have heard testimony from an undercover officer.
I am instructing you that there is nothing improper about such undercover operations. Sometimes the Government uses undercover agents who may conceal their true identities in order to investigate suspected violations of the law. There's nothing improper or illegal with the Government using these techniques. Indeed, certain types of evidence would be extremely difficult to detect without the use of undercover agents. The Government is permitted to rely on such techniques. You should consider the testimony of an undercover officer as you would that of any other witness.
O. Expert Witnesses
In this case, I have permitted numerous expert witnesses, all qualified as experts in the field of controlled substance analysis, to express their opinions about matters that are in issue. A witness may be permitted to testify to an opinion on those matters about which he or she has special knowledge, skill, experience and training. Such testimony is presented to you on the theory that someone who is experienced and knowledgeable in the field can assist you in understanding the evidence or in reaching an independent decision on the facts.
In weighing this opinion testimony, you may consider the witness's qualifications, his or her opinions, the reasons for testifying, as well as all of the other considerations that ordinarily apply when you are deciding whether or not to believe a witness's testimony. You may give the opinion testimony whatever weight, if any, you find it deserves in light of all the evidence in this case. You should not, however, accept opinion testimony merely because I allowed the witness to testify concerning his or her opinion. Nor should you substitute it for your own reason, judgment, and common sense. The determination of the facts in this case rests solely with you.
P. Stipulations of Fact
In this case you have heard evidence in the form of stipulations of fact. A stipulation of fact is an agreement between the parties that a certain fact is true. You must regard such agreed-upon facts as true. However, it is for you to determine the effect to be given to those facts.
Q. Stipulations of Testimony
In this case you have also heard evidence in the form of a stipulation of testimony. A stipulation of testimony is an agreement between the parties that, if called as a witness, the person would give certain testimony. You must accept as true the fact that the witness would have given that testimony. However, it is for you to determine the effect to be given that testimony.
R. Audio and Video Recordings; Transcripts
Audio and video recordings of certain conversations and events have been admitted into evidence. I instruct you that the audio and video recordings entered into evidence during this trial were made in a lawful manner, that no one's rights were violated, and that the Government's use of this evidence is entirely lawful. Whether you approve or disapprove of the recording or interception of these events may not enter your deliberations. Therefore, you must give this evidence your full consideration, along with all the other evidence in the case, as you determine whether the Government has proven the defendant's guilt beyond a reasonable doubt.
You were also provided with transcripts of various recordings, which were given to you as an aid or guide to assist you in listening to the recordings, and which the parties have agreed accurately reflect the words spoken. However, the recordings themselves are the best evidence of what was said, and you are free to reach your own conclusion as to what was said on the recordings based on what you heard. If you think you heard something differently than appeared on the transcript, then what you heard is controlling. Remember that the jury is the ultimate fact finder and, as with all of the evidence, you may give the transcripts such weight, if any, as you believe they deserve.
If you wish to hear or see any of the audio or video tapes again, or see any of the transcripts of those recordings, they will be available to you during your deliberations.
S. Use of Charts and Tables
Now, some of the exhibits were charts and tables, for example, of certain communications and transactions. These charts were introduced basically as summaries. For the charts and tables that were admitted into evidence, you should consider them as you would any other evidence. However, I instruct you that these charts and tables are not direct evidence. They are summaries of the evidence. They are a visual representation of information or data as set forth in exhibits or in stipulations or in the testimony of witnesses. They are admitted as aids to you. They are intended to be of assistance to you in your deliberations.
Indeed, in presenting the evidence, which you have heard, it is often easier and more convenient to utilize summary charts than to place all of the relevant documents in front of you. It is up to you to decide whether those charts fairly and correctly present the information in the testimony and the documents. The charts are not to be considered by you as direct proof of anything. They are merely graphic demonstrations of what the underlying testimony and documents are.
To the extent that the charts conform with what you determine the underlying evidence to be, you may accept them. But one way or the other, realize that the charts are not in and of themselves direct evidence. They are merely visual aids. They are nothing more.
T. Electronic Communications
Various electronic communications, such as text messages, have been admitted into evidence. I instruct you that this evidence was obtained in a lawful manner and that no one's rights were violated, and a party's use of this evidence is entirely lawful.
Therefore, regardless of any personal opinions you may have regarding the obtaining of such evidence, you must give this evidence full consideration along with all the other evidence in this case in determining whether the Government has proved the defendant's guilt beyond a reasonable doubt. What significance you attach to this evidence is entirely your decision.
U. Use of Evidence Obtained Pursuant to Searches
You have heard testimony about evidence seized during searches. I instruct you that these seizures were lawful. Evidence obtained in connection with these seizures was properly admitted in this case, and it may be properly considered by you. Whether you approve or disapprove of how it was obtained should not enter into your deliberations, because the Government's use of this evidence is entirely lawful.
You must therefore give this evidence full consideration along with all the other evidence in this case in determining whether the Government has proved the defendant guilty beyond a reasonable doubt. What significance you attach to this evidence is entirely your decision.
V. Particular Investigative Techniques Not Required
During the trial you have heard testimony of witnesses and argument by counsel with respect to investigative techniques that the Government did and did not use. You may consider these facts in deciding whether the Government has met its burden of proof, because as I told you, you should look to all of the evidence or lack of evidence in deciding whether the defendant is guilty. However, you also are instructed that there is no legal requirement that the Government use any specific investigative technique to prove its case.
Whether you approve or disapprove of various law enforcement techniques, or whether you might have chosen to use or not use any particular technique, is not the question. Your concern, as I have said, is to determine whether or not, on the evidence or lack of evidence, the defendant's guilt has been proved beyond a reasonable doubt.
W. Uncalled Witnesses-Equally Available
There are people whose names you heard during the course of the trial but did not appear to testify. I instruct you that each party had an equal opportunity or lack of opportunity to call any of these witnesses. Therefore, you should not draw any inferences or reach any conclusions as to what they would have testified to had they been called. Their absence should not affect your judgment in any way.
You should remember that there is no duty on either side to call a witness whose testimony would be merely cumulative of testimony already in evidence, or who would merely provide additional testimony to facts already in evidence. Please also remember my instruction that the law does not impose on the defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
X. Persons Not on Trial
Some of the people who may have been involved in the events leading to this trial are not on trial. This does not matter. You may not draw any inference, favorable or unfavorable, towards the Government or the defendant from the fact that certain persons other than the defendant were not named as defendants in the Indictment. Nor may you speculate as to the reasons why other persons are not on trial. Those matters are wholly outside your concern and have no bearing on your function as jurors.
Whether a person should be named as a co-conspirator or indicted as a defendant in this case or another separate case is a matter within the sole discretion of the United States Attorney and the grand jury. Therefore, you may not consider it in any way in reaching your verdict as to the defendant.
Y. Defendant's Right Not to Testify
The defendant, Davon Mial, did not testify in this case. Under our Constitution, a defendant has no obligation to testify or to present any evidence, because it is the Government's burden to prove a defendant guilty beyond a reasonable doubt. That burden remains with the Government throughout the entire trial and never shifts to a defendant. A defendant is never required to prove that he is innocent.
You may not attach any significance to the fact that the defendant did not testify. No adverse inference against him may be drawn by you because he did not take the witness stand. You may not consider this against the defendant in any way in your deliberations.
II. Substantive Instructions
I will turn now to my instructions to you relating to the charges brought against the defendant in this case.
A. The Indictment
The defendant, Davon Mial, is formally charged in an Indictment. As I instructed you at the outset of this case, the Indictment is merely a charge or accusation. It is not evidence, and it does not prove or even indicate guilt. As a result, you are to give it no weight in deciding the defendant's guilt or lack of guilt. What matters is the evidence you heard at this trial. Indeed, as I have previously noted, the defendant is presumed innocent, and he has entered a plea of not guilty. It is the prosecution's burden to prove the defendant's guilt beyond a reasonable doubt.
The Indictment contains six counts.
Count One charges the defendant with participating in a conspiracy to distribute or possess with intent to distribute controlled substances-here, mixtures and substances containing a detectable amount of cocaine base, in the form commonly known as “crack cocaine.” For the balance of these instructions, I will use the term “crack cocaine” interchangeably with the term “cocaine base.” The charged conspiracy is alleged to have existed from at least in or about December 2019, up to and including at least in or about August 2021.
Counts Two, Three, Four, Five, and Six charge the defendant with distributing or possessing with intent to distribute a controlled substance-here, mixtures and substances containing a detectable amount of “crack cocaine”-on or about specific dates: on or about July 14, 2020, for Count Two; on or about September 4, 2020, for Count Three; on or about October 6, 2020, for Count Four; on or about December 30, 2020, for Count Five; and on or about June 2, 2021, for Count Six.
Although there are facts in common to the different counts, each count is a separate offense or crime. Each count must therefore be considered separately by you, and you must return a separate verdict on each count. Whether you find the defendant guilty or not guilty as to one offense should not affect your verdict as to any other offense charged.
I will now instruct you on the applicable law for each of the six counts. I remind you that you must consider each count separately and return a separate verdict on each count.
B. Narcotics Conspiracy (Count One)
Count One charges the defendant with participating in a conspiracy to violate the federal narcotics laws by distributing or possessing with intent to distribute narcotics. Count One charges a violation of the federal narcotics conspiracy statute, Title 21, United States Code, Section 846. Specifically, Count One alleges that:
From at least in or about December 2019 through at least in or about August 2021, in the Southern District of New York and elsewhere, DAVON MIAL, a/k/a “Smooth,” the defendant, and others known and unknown, intentionally and knowingly did combine, conspire, confederate, and agree together and with each other to violate the narcotics laws of the United States.
It was a part and an object of the conspiracy that DAVON MIAL, a/k/a “Smooth,” the defendant, and others known and unknown, would and did distribute and possess with intent to distribute a controlled substance, in violation of Title 21, United States Code, Section 841(a)(1).
The controlled substance that DAVON MIAL, a/k/a “Smooth,” the defendant, conspired to distribute and possess with intent to distribute was 280 grams and more of mixtures and substances containing a detectable amount of cocaine base in the form commonly known as “crack cocaine,” in violation of Title 21, United States Code, Section 841(b)(1)(A).
In order to sustain its burden of proof against the defendant with respect to the charge of participation in a narcotics conspiracy, the Government must prove beyond a reasonable doubt the following two elements:
First, the existence of the conspiracy charged in the Indictment; in other words, that there was, in fact, an agreement or understanding to violate those provisions of the law that make it illegal to distribute or to possess with the intent to distribute narcotics. Therefore, the first question for you is: Did the alleged conspiracy exist?
Second, the Government must prove beyond a reasonable doubt that the defendant unlawfully, intentionally, and knowingly became a member of the conspiracy; that is, that he knowingly joined in the conspiracy, and intentionally participated in the conspiracy to distribute or possess with the intent to distribute controlled substances in the United States.
Now let me elaborate on each of the two basic elements: first, the existence of the conspiracy; and second, whether the defendant intentionally joined in and participated in the conspiracy.
1. First Element: Existence of the Agreement
Starting with the first element, what is a conspiracy? A conspiracy is an agreement or an understanding, between two or more persons, to accomplish by joint action a criminal or unlawful purpose or “object.”
A conspiracy to commit a crime is an entirely separate and different offense from the crime that is the objective of the conspiracy, or an attempt to commit that crime. The essence of the crime of conspiracy is an agreement or understanding to violate other laws. Thus, if a conspiracy exists, even if it should fail in its purpose, it is still punishable as a crime.
The objects of the conspiracy charged in the Indictment are the possession with intent to distribute, and the distribution, of 280 grams and more of mixtures and of substances containing a detectable amount of cocaine base in the form commonly known as “crack cocaine.”
To establish the existence of a conspiracy, the Government is not required to show that two or more people sat around a table and entered into a solemn pact, orally or in writing, stating that they had formed a conspiracy to violate the law and spelling out all the details. Common sense tells you that when people agree to enter into a criminal conspiracy, much is left to unexpressed understanding. It is rare that a conspiracy can be proven by direct evidence of an explicit agreement.
In order to show that a conspiracy existed, the evidence must show that two or more persons, in some way or manner, either explicitly or implicitly, came to an understanding to violate the law and to accomplish an unlawful plan. Now, when I speak of two or more persons, I do not include as potential co-conspirators any persons then acting as confidential informants or undercover law-enforcement officers. Their acts are not the acts of co-conspirators-since they were operating under the direction of the Government, their purpose was not to commit crimes. But if you find beyond a reasonable doubt that two or more persons, not acting in an informant or undercover capacity, came to an understanding, express or implied, to violate the law and to accomplish an unlawful plan, then the Government will have sustained its burden of proof as to this element.
In determining whether there has been an unlawful agreement as alleged in the Indictment, you may consider the actions of all the alleged co-conspirators that were taken to carry out the apparent criminal purpose. The old saying, “actions speak louder than words,” applies here. Often, the only evidence that is available with respect to the existence of a conspiracy is that of disconnected acts on the part of the alleged individual co-conspirators. When taken all together and considered as a whole, however, that conduct may warrant the inference that a conspiracy existed just as conclusively as more direct proof, such as evidence of an express agreement.
a. Objects of the Conspiracy
The objects of a conspiracy are the illegal goals the co-conspirators agree or hope to achieve. The Indictment charges the objectives of the conspiracy were the distribution of and the possession with intent to distribute a controlled substance-crack cocaine. I instruct you that crack cocaine is a controlled substance.
I instruct you that the Government need not prove that the conspiracy was to both distribute and possess with the intent to distribute. But if you find that only one has been proven, you must be unanimous as to which one you find to have been proven. That is, to find the defendant guilty of the crime of conspiracy, you need to find that the defendant agreed with at least one other person to distribute a controlled substance, or to possess with the intent to distribute a controlled substance, or to do both of these things. In this regard, it is not necessary that the defendant specifically agreed to distribute crack cocaine to be guilty; rather, the defendant is guilty so long as he agreed to distribute any controlled substance, or to possess with the intent to distribute any controlled substance, or both of those things.
If the Government fails to prove beyond a reasonable doubt that at least one of the objects charged in the Indictment was in fact an object of the conspiracy, then you must find the defendant not guilty of this charge. If, on the other hand, you find that the Government has proved beyond a reasonable doubt that there was a conspiracy with one or more of the objects charged, then the illegal object element is satisfied.
You need not be concerned with the purity or the exact quantity of the narcotics involved as long as you find that the co-conspirators agreed to distribute or possess with the intent to distribute the controlled substance crack cocaine, charged in the Indictment.
b. Time and Scope of the Conspiracy
The Indictment charges the defendant with participating in a specific agreement with specific objects. He may not be found guilty unless the Government proves beyond a reasonable doubt that the conspiracy charged in the Indictment, that is, a narcotics-distribution conspiracy, existed.
If you find that the conspiracy charged did not exist, then you must return a not guilty verdict, even if you find that some other conspiracy existed.
A single conspiracy can exist even though its members change over time. Accordingly, you may find that there was a single conspiracy even if there were changes in personnel, addition or subtraction of members, or evolution in the activities undertaken by the conspirators, so long as you find that some core members of the conspiracy continued to act to accomplish one or more of the purposes charged in the Indictment throughout its existence. The fact that the members of a conspiracy are not always identical does not necessarily imply that separate conspiracies exist.
Whether the conspiracy charged in the Indictment existed, or whether there were several different criminal conspiracies or no conspiratorial agreement at all is a question of fact for you, the jury, to determine.
c. Meaning of “Distribute” and “Possess with Intent to Distribute”
Now, what do these terms “distribute” and “possess with intent to distribute” mean?
The word “distribution” means the actual, constructive or attempted transfer of a controlled substance. To “distribute” means to deliver, pass or hand over something to another person, or cause something to be delivered, passed on, or handed over to another person. Distribution does not require a sale.
Turning to the definition of “possession with intent to distribute,” I begin with the concept of “possession.” Possession is pretty much what it sounds like; that is, having physical custody or control of an object, as I possess this pen. It is not necessary that a person have a controlled substance on his or her person in order to have legal possession of it. If a person has the ability to exercise substantial control over an object, even if he or she does not have the object in his physical custody, and that person has the intent to exercise such control, then the person is in possession of that object. This is called “constructive possession.”
More than one person can have control over the same narcotics. In addition, possession and ownership are not the same. A person can possess an object and not be the owner of the object.
To “possess with intent to distribute” simply means to possess a controlled substance with the intention or purpose to “distribute” it to another person or persons. As I explained, to “distribute” means simply to transfer to another.
How can you tell whether a person intended to distribute drugs? Since you cannot read a person's mind, you must make an inference from his behavior. However, you cannot find someone guilty unless these inferences convince you beyond a reasonable doubt that the person had the intention to distribute the controlled substance. If someone conspired to obtain drugs for his personal use, rather than for the purpose of distribution, or delivery, to another, that person would not be guilty of this offense.
It may be possible to infer an intention to distribute from the quantity of drugs that you find were involved, although the possession of a large quantity of narcotics does not necessarily mean that the possessor intended to distribute them. On the other hand, a person may have intended to distribute a controlled substance even if he did not possess a large amount of it. You should make your decision whether the Government has proved beyond a reasonable doubt that the defendant conspired to distribute controlled substances from all of the evidence presented in this case.
Again, the Government need prove only that the objective of the conspiracy was to distribute the controlled substance or to possess the controlled substance with the intent to distribute it. The Government need not prove both. You must be unanimous, however, as to which act was proven beyond a reasonable doubt to have been the objective of the conspiracy.
Before I go further, let me note something regarding the quantity and purity of drugs involved. I instruct you that the actual quantity and purity of the crack cocaine involved in the charged conspiracy is not an element of this crime, so you need not be concerned with quantity or purity in determining whether the defendant is guilty or not guilty of Count One. In order to determine whether the defendant is guilty of Count One, you need only find beyond a reasonable doubt that a conspiracy existed to distribute, or possess with the intent to distribute, some amount of crack cocaine.
As I will explain later, however, if you do find that the Government has proved the elements of Count One of the Indictment beyond a reasonable doubt, you will then be asked to make a finding about the quantity of narcotics.
2. Second Element: Membership in the Conspiracy
If you conclude that the Government has proven beyond a reasonable doubt that the narcotics conspiracy charged in Count One existed, and that the conspiracy had as its object one of the illegal purposes charged in the Indictment, then you must next determine the second question: Whether the defendant intentionally participated in that conspiracy with knowledge of its unlawful purposes, and in furtherance of its unlawful objectives.
The Government must prove beyond a reasonable doubt that he knowingly and intentionally entered into the conspiracy with a criminal intent-that is, with a purpose to violate the law-and that he agreed to take part in the conspiracy to promote and cooperate in its unlawful objectives.
In this regard, remember that the crime with which the defendant is charged is conspiracy to distribute and possess with intent to distribute a controlled substance, in this case crack cocaine. You are therefore instructed that he may only be convicted if you find beyond a reasonable doubt that he knowingly and willfully joined with co-conspirators, in the conspiracy charged in the Indictment, to distribute or possess with intent to distribute these narcotics. It is not sufficient to convict the defendant if you find that he did not believe that the conspiracy involved as a goal distributing or possessing with intent to distribute at least one of these narcotics.
a. “Unlawfully,” “Intentionally” and “Knowingly” Defined
Let me define some of the terms I used a moment ago. “Unlawfully” simply means contrary to law. The defendant need not have known that he was breaking any particular law or rule, but he must have been aware of the generally unlawful nature of his acts.
The terms “knowingly” and “intentionally” mean that in order to find that the defendant joined the conspiracy, you must conclude beyond a reasonable doubt, that, in doing so, he knew what he was doing; in other words, that the defendant took the actions in question deliberately and voluntarily. An act is done “knowingly” and “intentionally” if it is done deliberately and purposely; that is, the defendant's acts must have been the product of the defendant's conscious objective, rather than the product of a mistake or accident, or mere negligence, or some other innocent reason.
Science has not yet devised a manner of looking into a person's mind and knowing what that person is thinking. However, you do have before you the evidence of certain acts and conversations alleged to have taken place with the defendant or in his presence. The Government contends that these acts and conversations show, beyond a reasonable doubt, the defendant's knowledge of the unlawful purposes of the conspiracy.
It is not necessary for the Government to show that the defendant was fully informed as to all the details of the conspiracy in order for you to infer knowledge on his part. To have guilty knowledge, the defendant need not know the full extent of the conspiracy, or all of the activities of all of its participants. It is not necessary for the defendant to know every other member of the conspiracy. In fact, the defendant may know only one other member of the conspiracy and still be a co-conspirator. Nor is it necessary for the defendant to receive any monetary benefit from his participation in the conspiracy, or have a financial stake in the outcome. It is enough if he participated in the conspiracy unlawfully, intentionally and knowingly, as I have defined those terms.
The duration and extent of the defendant's participation has no bearing on the issue of the defendant's guilt. He need not have joined the conspiracy at the outset. The defendant may have joined it at any time in its progress, and will still be held responsible for all that was done before he joined and all that was done during the conspiracy's existence while he was a member. Each member of a conspiracy may perform separate and distinct acts. Some conspirators play major roles, while others play minor roles in the scheme. An equal role is not what the law requires. In fact, even a single act may be sufficient to draw the defendant within the scope of the conspiracy.
However, I want to caution you that a person's mere association with a member of a conspiracy does not make that person a member of the conspiracy, even when that association is coupled with knowledge that a conspiracy is taking place. Mere presence at the scene of a crime, even coupled with knowledge that a crime is taking place, is not sufficient to support a conviction. In other words, knowledge without agreement and participation is not sufficient. What is necessary is that the defendant have participated in the conspiracy with knowledge of its unlawful purposes, and with an intent to aid in the accomplishment of its unlawful objectives.
I wish to emphasize that, to be guilty of this count, the defendant must have been a member of the particular narcotics conspiracy alleged in the Indictment. If you were to find, instead, that the defendant was a member of a different narcotics conspiracy, but did not find beyond a reasonable doubt that that defendant participated in the narcotics conspiracy charged in the Indictment, the element of membership would not be satisfied as to that defendant.
In sum, to convict the defendant of Count One, you must find beyond a reasonable doubt that he, with an understanding of the unlawful nature of the conspiracy, intentionally engaged, advised or assisted in the conspiracy for the purpose of furthering an illegal undertaking-in this case, specifically, the distribution of illegal drugs. That defendant thereby becomes a knowing and willing participant in the unlawful agreement-that is to say, a conspirator.
b. Drug Quantity
If, and only if, you conclude that the Government has met its burden of establishing the defendant's guilt beyond a reasonable doubt with respect to the narcotics conspiracy charged in Count One, you will then be required to determine whether the conspiracy foreseeably involved certain amounts of crack cocaine. You will be provided with a verdict form that presents the questions you must answer as to these quantities. It will include spaces for you to indicate your determinations with respect to drug quantity.
You do not need to determine the precise quantity of crack cocaine involved in the conspiracy. Rather, you need only decide whether the conspiracy involved more than certain specified amounts of that particular drug, as reflected on the verdict form.
The specified amounts of crack cocaine are 280 grams or more, or 28 grams or more but less than 280 grams, or less than 28 grams.
You will be given a verdict form on which to record the jury's answer to these questions.
Your finding on quantity must be unanimous in the sense that all of you must agree that the conspiracy involved at least the quantity indicated. Thus, for example, if all of you agree that the conspiracy involved 280 grams or more of crack cocaine, you should indicate 280 grams or more of crack cocaine. If, however, some jurors concluded that the conspiracy involved 280 grams of crack cocaine and the rest of the jurors concluded that it involved between 28 grams or more of crack cocaine and 280 grams, you may not indicate that the conspiracy involved 280 grams or more of crack cocaine. Under those circumstances, however, you may indicate between 28 grams or more of crack cocaine and 280 grams. And if you conclude that the Government has not proved that the conspiracy involved at least 28 grams of crack cocaine, then you may indicate that on the verdict form.
In making your determination about the quantity of crack cocaine involved in the conspiracy, the defendant is responsible for all quantities of crack cocaine that he personally distributed or possessed with intent to distribute. In addition, the defendant is also responsible for any quantity of crack cocaine distributed by co-conspirators, as long as the quantities were known to the defendant-even if they preceded his joining the conspiracy-or were reasonably foreseeable to him, and were within the scope of the criminal activity that the defendant jointly undertook. The purity of the narcotics does not matter. Any mixture or substance containing a detectable amount of crack cocaine may be considered by you as you determine the quantity of crack cocaine involved in the offense.
The drug quantity attributable to a person who has been found beyond a reasonable doubt to be a participant in a conspiracy includes (1) transactions in which he participated directly, (2) transactions in which he did not personally participate, but where he knew of the transactions or they were reasonably foreseeable to him, and (3) quantities he agreed to distribute with intent to distribute regardless of whether he ultimately committed the substantive act.
To prove the quantity by one of these means, you must find specific evidence of drug quantities, or evidence from which quantity can, through inference, be logically approximated or extrapolated. In other words, while the quantity of crack cocaine may be determined through extrapolation, approximation, or deduction, there must be evidence of known quantities, which are sufficiently representative of the unknown quantities and from which an approximation of the unknown quantities can logically be derived.
You may not speculate that the defendant engaged in drug transactions for which the Government has not provided evidence beyond a reasonable doubt.
3. Additional Instructions
That concludes my instruction on the two elements of conspiracy. I will add two notes to inform your deliberations on Count One.
a. Liability for Acts and Statements of Co-Conspirator
First, you heard evidence concerning the acts and statements of people other than the defendant because these acts and statements were committed or made by a person who, the Government alleges, was a confederate or co-conspirator of the defendant.
The reason for allowing this evidence to be received against the defendant has to do in part with the nature of the crime of conspiracy. A conspiracy is often referred to as a partnership in crime, and as in other types of partnerships, when people enter into a conspiracy to accomplish an unlawful end, each and every member becomes an agent for the other conspirators in carrying out the conspiracy.
Therefore, the reasonably foreseeable acts or statements of any member of the conspiracy, committed in furtherance of the common purpose of the conspiracy, are deemed, under the law, to be the acts or statements of all of the members, and all of the members are responsible for such acts or statements.
If you find, beyond a reasonable doubt, that the defendant was a member of the conspiracy charged in the Indictment, then any acts done or statements made in furtherance of the conspiracy by a person also found by you to have been a member of the same conspiracy may be considered against the defendant. This is so even if such acts were committed or such statements were made in the defendant's absence, and without his knowledge.
However, before you may consider the acts or statements of a co-conspirator in deciding the guilt of the defendant, you must first determine that the acts were committed or statements were made during the existence, and in furtherance, of the unlawful scheme. If the acts were done or the statements were made by someone whom you do not find to have been a member of the conspiracy, or if they were not in furtherance of the conspiracy, they may not be considered by you in deciding whether the defendant is guilty or not guilty.
b. Substantive Offenses and Their Elements
Third, as a final reminder, you need not find that the defendant actually committed the substantive crimes of possessing or distributing narcotics on a particular occasion that are the objects of the conspiracy, but only that he agreed with others to commit such offenses. It is not necessary for the Government to establish that the defendant himself physically possessed narcotics, or even that it was agreed that he would possess them. It is sufficient to establish this element of the crime if the Government proves beyond a reasonable doubt that there existed an agreement that the defendant, or any other member of the conspiracy, would possess narcotics with the purpose of distributing them.
That concludes my instruction on Count One.
C. Distribution or Possession with the Intent to Distribute Controlled Substances (Counts Two through Six)
Counts Two, Three, Four, Five, and Six charge the defendant with intentionally and knowingly distributing or possessing with intent to distribute a controlled substance on a particular date.
Specifically:
• Count Two charges the defendant with distributing or possessing with the intent to distribute cocaine base in the form commonly known as “crack cocaine” on or about July 14, 2020.
• Count Three charges the defendant with distributing or possessing with the intent to distribute cocaine base in the form commonly known as “crack cocaine” on or about September 4, 2020.
• Count Four charges the defendant with distributing or possessing with the intent to distribute cocaine base in the form commonly known as “crack cocaine” on or about October 6, 2020.
• Count Five charges the defendant with distributing or possessing with the intent to distribute cocaine base in the form commonly known as “crack cocaine” on or about December 30, 2020.
• Count Six charges the defendant with distributing or possessing with the intent to distribute cocaine base in the form commonly known as “crack cocaine” on or about June 2, 2021.
In order to find the defendant guilty of possession of a controlled substance with the intent to distribute it, you must find that the Government has proven beyond a reasonable doubt each of the following three elements:
First: That on or about the date charged in the Indictment, the defendant distributed, or possessed with the intent to distribute, a controlled substance.
Second: That the defendant did so intentionally and knowingly.
Third: That the substance was in fact a controlled substance; and that the controlled substance was crack cocaine.
I will now explain those three elements in turn.
1. First Element: Distribution or Possession with Intent to Distribute a
Controlled Substance
The first element that the Government must prove beyond a reasonable doubt is “distribution” of, or “possession with intent to distribute,” a controlled substance.
I have already discussed the concepts of “distribution,” “possession,” and “possession with intent to distribute” in connection with the conspiracy charge on Count One. Those instructions apply equally here.
To establish this element, the Government need not prove both that the defendant distributed crack cocaine and that he possessed crack cocaine with intent to distribute it. To find this element, however, you must unanimously find as to one of these two things-distribution or possession with intent to distribute.
2. Second Element: Intentionally and Knowing
The second element that the Government must prove beyond a reasonable doubt is that the defendant acted “intentionally and knowingly.” I have already explained to you what these terms mean in the context of the conspiracy charge contained in Count One.
With respect to Counts Two through Six in particular, the Government must prove beyond a reasonable doubt that the defendant knew that he distributed a controlled substance, or possessed a controlled substance with the intent to distribute it, and that these acts were not due to carelessness, negligence, or mistake.
Although the Government must prove that the defendant knew that he possessed a controlled substance, the Government does not have to prove that the defendant knew the exact nature of the drugs in his possession. It is enough that the defendant knew that he possessed some kind of controlled substance.
As you can see, this element concerns a person's state of mind. As I mentioned earlier, direct proof of state of mind is not always available. Circumstantial evidence, if believed, is of no less value than direct evidence. In either case, the essential elements of the crime charged must be established beyond a reasonable doubt.
3. Third Element: Controlled Substance
The third element that the Government must prove beyond a reasonable doubt is that the substance involved was, in fact, a controlled substance, and that the controlled substance was crack cocaine.
As I mentioned earlier, if you find that the substance involved was crack cocaine, the quantity or purity of the substance is immaterial as to guilt on Counts Two through Six. Again, there will be a line on the verdict form to guide you in recording that determination.
4. Additional Instruction: Drug Quantity and Purity
As with Count One, the actual quantity and purity of the crack cocaine involved in these charged offenses is not an element of this crime. You will not be asked to make any findings about that in connection with Counts Two through Six. In order to determine whether the defendant is guilty of each count, you need only find beyond a reasonable doubt that he possessed with the intent to distribute some amount of crack cocaine.
That concludes my instruction on Counts Two through Six.
D. Motive
Proof of motive is not a necessary element of the crimes with which the defendant is charged. Proof of motive does not establish guilt, nor does the lack of proof of motive establish that the defendant is not guilty. If the guilt of the defendant is shown beyond a reasonable doubt, it is immaterial what the defendant's motive for the crime may be, or whether his or her motive was shown at all. The presence or absence of motive is, however, a circumstance that you may consider as bearing on the defendant's intent.
E. Variance in Dates
The Indictment charges that the conspiracy and substantive crimes happened on or about a date or in or about a particular period of time. It is not essential that the Government prove that the conspiracy or substantive crimes started and ended on any specific dates. It does not matter if a specific event is alleged to have occurred on or about a certain date, but the evidence at trial indicates that in fact it was a different date. The law requires only a substantial similarity between the dates alleged in the Indictment and the dates established by the testimony and other evidence.
F. Venue
Next, with respect to each of the counts charged in the Indictment, you must decide whether any act in furtherance of the crime occurred within the Southern District of New York. This requirement is known as “venue.” I instruct you that the Southern District of New York includes Manhattan and the Bronx, as well as Westchester, Putnam, Rockland, Orange, Dutchess, and Sullivan counties. Anything that occurs in any of those places occurs within the Southern District of New York.
The venue requirement is satisfied if any act in furtherance of the crime occurred in this District. To prove venue for the crime of conspiracy in particular, it is sufficient if any conspirator committed an overt act in furtherance of the conspiracy in this District. Thus, any action in the Southern District of New York, or any communication into or out of the Southern District of New York, can establish venue so long as the action furthers the crimes charged. The defendant need not have ever been physically present in this District for a charge against him to be brought here.
Moreover, if you find that the crime charged is committed in more than one district, venue is proper in any district in which the crime was begun, continued, or completed. Therefore, venue will lie in this district, the Southern District of New York, if you find that any part of the crime took place here, whether or not the defendant himself was even in this district.
I should note that on this issue-and this issue alone-the Government need not offer proof beyond a reasonable doubt. Venue need be proven only by a preponderance of the evidence. The Government has satisfied its venue obligations, therefore, if you conclude that it is more likely than not that any act in furtherance of the crime occurred in this District.
However, if you find that the Government has failed to prove that an act in furtherance of the crime charged in a particular count occurred in this District, then you must acquit the defendant on that count. As I have said, on every other issue the Government's burden of proof is beyond a reasonable doubt.
III. Deliberations of the Jury
A. Right to See Exhibits and Hear Testimony
Ladies and gentlemen of the jury, that concludes the substantive portion of my instructions to you. You are about to go into the jury room and begin your deliberations. If during deliberations you want to see a hard copy of any of the exhibits, you may request that they be brought into the jury room. If you want any of the testimony read, you may also request that. Please remember that it is not always easy to locate what you might want, so be as specific as you possibly can in requesting exhibits or portions of the testimony. And please be patient-with respect to requests for testimony, it can sometimes take counsel and the Court some time to identify the portions that are responsive to your request. If you want any further explanation of the law as I have explained it to you, you may also request that.
To assist you in your deliberations, I am providing you with a list of witnesses, in the order in which they testified; a list of exhibits; a verdict form, which I will discuss in a moment; and a copy of these instructions. There is one of each of these for each juror. I am also providing you with a copy of the Indictment. I remind you that the Indictment is not evidence.
B. Communication with the Court
Your requests for exhibits or testimony-in fact any communications with the Court- should be made to me in writing, signed by your foreperson, and given to one of the marshals. In any event, do not tell me or anyone else how the jury stands on any issue until after a unanimous verdict is reached.
C.
Some of you have taken notes periodically throughout this trial. I want to emphasize to you, as you are about to begin your deliberations, that notes are simply an aid to memory. Notes that any of you may have made may not be given any greater weight or influence than the recollections or impressions of other jurors, whether from notes or memory, with respect to the evidence presented or what conclusions, if any, should be drawn from such evidence. All jurors' recollections are equal. If you can't agree on what you remember the testimony was, you can ask to have the transcript read back.
D. Duty to Deliberate; Unanimous Verdict
You will shortly retire to decide the case. Your function is to weigh the evidence in this case and to determine the guilt or lack of guilt of the defendant with respect to the count charged in the Indictment. You must base your verdict solely on the evidence and these instructions as to the law, and you are obliged on your oath as jurors to follow the law as I instruct you, whether you agree or disagree with the particular law in question.
It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement. Each of you must decide the case for himself or herself, but you should do so only after a consideration of the case with your fellow jurors, and you should not hesitate to change an opinion when convinced that it is erroneous. Discuss and weigh your respective opinions dispassionately, without regard to sympathy, without regard to prejudice or favor for either party, and adopt that conclusion which in your good conscience appears to be in accordance with the truth.
When you are deliberating, all 12 jurors must be present in the jury room. If a juror is absent, you must stop deliberations.
Again, your verdict must be unanimous, but you are not bound to surrender your honest convictions concerning the effect or weight of the evidence for the mere purpose of returning a verdict or solely because of the opinion of other jurors. Each of you must make your own decision about the proper outcome of this case based on your consideration of the evidence and your discussions with your fellow jurors. No juror should surrender his or her conscientious beliefs solely for the purpose of returning a unanimous verdict.
Remember at all times, you are not partisans. You are judges-judges of the facts. Your sole interest is to seek the truth from the evidence in the case.
If you are divided, do not report how the vote stands. If you reach a verdict, do not report what it is until you are asked in open court.
E. Verdict Form
I have prepared a verdict form for you to use in recording your decision. Please use that form to report your verdict.
F. Duties of Foreperson
Finally, I referred a moment ago to a foreperson. The first thing you should do when you retire to deliberate is take a vote to select one of you to sit as your foreperson, and then send out a note indicating whom you have chosen.
The foreperson doesn't have any more power or authority than any other juror, and his or her vote or opinion doesn't count for any more than any other juror's vote or opinion. The foreperson is merely your spokesperson to the court. He or she will send out any notes, and when the jury has reached a verdict, he or she will notify the marshal that the jury has reached a verdict, and you will come into open court and give the verdict.
G. Return of Verdict
After you have reached a verdict, your foreperson will fill in and date the form that has been given to you. All jurors must sign the form reflecting each juror's agreement with the verdict. The foreperson should then advise the marshal outside your door that you are ready to return to the courtroom.
I will stress that each of you must be in agreement with the verdict which is announced in court. Once your verdict is announced by your foreperson in open court and officially recorded, it cannot ordinarily be revoked.
In conclusion, ladies and gentlemen, I am sure that if you listen to the views of your fellow jurors and if you apply your own common sense, you will reach a fair verdict here.
IV. Conclusion
Members of the jury, that concludes my instructions to you. I will ask you to remain seated while I confer with the attorneys to see if there are any additional instructions that they would like me to give to you or anything I may not have covered in my previous statement.
* * *
Before you retire into the jury room, I must excuse our two alternates with the thanks of the court. You have been very attentive and very patient. I'm sorry that you will miss the experience of deliberating with the jury, but the law provides for a jury of 12 persons in this case. So before the rest of the jury retires into the jury room, if you have any clothing or objects there you are asked to pick them up and to withdraw before any deliberations start.
Please do not discuss the case with anyone, or research the case, over the next few days. It is possible, and I have had this occur in a trial, that unexpected developments such as a juror's serious illness, may require the substitution of a deliberating juror by an alternate. And so it's vital that you not speak to anyone about the case or research the case until you have been notified that the jury's deliberations are over and the jury has been excused. And if you would like to be advised of the outcome of the trial, please make sure that Mr. Smallman has a phone number and an email address at which you can be reached.
(Alternates excused)
Members of the jury, you may now retire. The marshal will be sworn before we retire.
(Marshal sworn)