Opinion
2:20-CR-00039 KJM
09-08-2021
UNITED STATES OF AMERICA, Plaintiff, v. TOMMY WALKER, Defendant.
FINAL JURY INSTRUCTIONS
INSTRUCTION NO. 1
Members of the jury, now that you have heard all the evidence, it is my duty to instruct you on the law that applies to this case. A copy of these instructions will be available in the jury room for you to consult.
It is your duty to weigh and to evaluate all the evidence received in the case and, in that process, to decide the facts. It is also your duty to apply the law as I give it to you to the facts as you find them, whether you agree with the law or not. You must decide the case solely on the evidence and the law. Do not allow personal likes or dislikes, sympathy, prejudice, fear, or public opinion to influence you. You should also not be influenced by any person's race, color, religion, national ancestry, or gender, sexual orientation, profession, occupation, or position in life or in the community. You will recall that you took an oath promising to do so at the beginning of the case.
You must follow all these instructions and not single out some and ignore others; they are all important. Please do not read into these instructions or into anything I may have said or done any suggestion as to what verdict you should return-that is a matter entirely up to you.
INSTRUCTION NO. 2
The Indictment is not evidence. The defendant has pleaded not guilty to the charge. In addition, the defendant does not have to testify or present any evidence. The defendant is presumed to be innocent unless and until the government proves the defendant guilty beyond a reasonable doubt.
INSTRUCTION NO. 3
You are here only to determine whether the defendant is guilty or not guilty of the charge in the indictment. The defendant is not on trial for any conduct or offense not charged in the indictment.
INSTRUCTION NO. 4
Because of the presumption of innocence, a defendant does not have to prove innocence. The burden of proof is always on the government and never shifts to the defendant.
The burden on the government is to prove every element of the charge beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. It is not required that the government prove guilt beyond all possible doubt.
A reasonable doubt is a doubt based upon reason and common sense and is not based purely on speculation. It may arise from a careful and impartial consideration of all the evidence, or from lack of evidence.
If after a careful and impartial consideration of all the evidence, you are not convinced beyond a reasonable doubt that a defendant is guilty, it is your duty to find that defendant not guilty. However, if after a careful and impartial consideration of all the evidence, you are convinced beyond a reasonable doubt that a defendant is guilty, it is your duty to find that defendant guilty.
INSTRUCTION NO. 5
A defendant in a criminal case has a constitutional right not to testify. You may not draw any inference of any kind from the fact that the defendant did not testify.
INSTRUCTION NO. 6
The evidence you are to consider in deciding what the facts are consists of:
(1) the sworn testimony of any witness;
(2) the exhibits received into evidence; and
(3) any facts to which the parties have agreed.
INSTRUCTION NO. 7
In reaching your verdict you may consider only the testimony and exhibits received into evidence. The following things are not evidence and you may not consider them in deciding what the facts are:
1. Questions, statements, objections, and arguments by the lawyers are not evidence. The lawyers are not witnesses. Although you must consider a lawyer's questions to understand the answers of a witness, the lawyer's questions are not evidence. Similarly, what the lawyers have said in their opening statements, closing arguments and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers state them, your memory of them controls.
2. Any testimony that I have excluded, stricken, or instructed you to disregard is not evidence. In addition, some evidence was received only for a limited purpose; when I have instructed you to consider certain evidence in a limited way, you must do so.
3. Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.
INSTRUCTION NO. 8
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from which you could find another fact.
You are to consider both direct and circumstantial evidence. Either can be used to prove any fact. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.
INSTRUCTION NO. 9
In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.
In considering the testimony of any witness, you may take into account:
1. the witness's opportunity and ability to see or hear or know the things testified to;
2. the witness's memory;
3. the witness's manner while testifying;
4. the witness's interest in the outcome of the case, if any;
5. the witness's bias or prejudice, if any;
6. whether other evidence contradicted the witness's testimony;
7. the reasonableness of the witness's testimony in light of all the evidence; and
8. any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily depend on the number of witnesses who testify. What is important is how believable the witnesses were, and how much weight you think their testimony deserves.
INSTRUCTION NO. 10
The parties agreed to certain facts that were stated to you. Those facts are now conclusively established.
INSTRUCTION NO. 11
You have heard testimony that the defendant made certain statements. It is for you to decide (1) whether the defendant made the statements, and (2) if so, how much weight to give each of them. In making those decisions, you should consider all the evidence about the statements, including the circumstances under which the defendant may have made each one.
INSTRUCTION NO. 12
You have heard evidence that the defendant committed other acts not charged here. You may consider this evidence only for its bearing, if any, on the question of the defendant's intent, motive, opportunity, modus operandi, preparation, plan, knowledge, identity, absence of mistake, absence of accident, and for no other purpose.
INSTRUCTION NO. 13
You have heard testimony from persons who, because of education or experience, were permitted to state opinions and the reasons for their opinions.
Such opinion testimony should be judged like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witnesses' education and experience, the reasons given for the opinions, and all the other evidence in the case.
INSTRUCTION NO. 14
You have heard evidence that Daisy Gutierrez, a witness, has been convicted of a crime. You may consider this evidence in deciding whether or not to believe this witness and how much weight to give to the testimony of this witness.
INSTRUCTION NO. 15
You heard a recording that was received in evidence. Each of you was given a transcript of the recording as a guide to help you listen to the recording. However, bear in mind that the recording is the evidence, not the transcript. If you heard something different from what appeared in the transcript, what you heard is controlling.
INSTRUCTION NO. 16
An act is done knowingly if the person is aware of the act and does not act through ignorance, mistake, or accident. You may consider evidence of the defendant's words, acts, or omissions, along with all the other evidence, in deciding whether the defendant acted knowingly.
INSTRUCTION NO. 17
A person has possession of something if the person knows of its presence and has physical control of it, or knows of its presence and has the power and intention to control it.
More than one person can be in possession of something if each knows of its presence and has the power and intention to control it.
INSTRUCTION NO. 18
The defendant is charged in Count one of the Indictment with possessing a firearm in violation of Section 922(g)(1) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant knowingly possessed a Jimenez Arms, .380 semiautomatic handgun, with serial number 019771;
Second, the Jimenez Arms, .380 semiautomatic handgun, with serial number 019771 had been shipped or transported from one state to another or between a foreign nation and the United States;
Third, at the time the defendant possessed the Jimenez Arms, .380 semiautomatic handgun, with serial number 019771, the defendant had been convicted of a crime punishable by imprisonment for a term exceeding one year; and
Fourth, at the time the defendant possessed the Jimenez Arms, .380 semiautomatic handgun, with serial number 019771, the defendant knew that he had been convicted of a crime punishable by imprisonment for a term exceeding one year.
INSTRUCTION NO. 19
The parties have stipulated that the defendant was convicted of a crime punishable by imprisonment for a term exceeding one year (commonly referred to as a felony) and that he knew that he had previously been convicted of a felony offense. This evidence was admitted only for the limited purpose of satisfying the third and fourth elements of 18 U.S.C. 922(g)(1), the crime charged in the indictment, and, therefore, you must consider it only for that limited purpose and not for any other purpose.
INSTRUCTION NO. 20
The indictment charge that the offense alleged was committed “on or about” a certain date.
Although it is necessary for the government to prove beyond a reasonable doubt that the offense was committed on a date reasonably near the dates alleged in the indictment, it is not necessary for the government to prove that the offense was committed precisely on the date or dates charged.
INSTRUCTION NO. 21
When you begin your deliberations, elect one member of the jury as your foreperson who will preside over the deliberations and speak for you here in court.
You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict, whether guilty or not guilty, must be unanimous.
Each of you must decide the case for yourself, but you should do so only after you have considered all the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinion if the discussion persuades you that you should. But do not come to a decision simply because other jurors think it is right.
It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.
Perform these duties fairly and impartially. Do not allow personal likes or dislikes, sympathy, prejudice, fear, or public opinion to influence you. You should also not be influenced by any person's race, color, religion, national ancestry, gender, sexual orientation, profession, occupation, economic circumstances, or position in life or in the community. It is your duty as jurors to consult with one another and to deliberate with one another with a view towards reaching an agreement if you can do so. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong.
INSTRUCTION NO. 22
Because you must base your verdict only on the evidence received in the case and on these instructions, I remind you that you must not be exposed to any other information about the case or to the issues it involves. Except for discussing the case with your fellow jurors during your deliberations:
Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via email, text messaging, or any Internet chat room, blog, website or other feature. This applies to communicating with your family members, your employer, the media or press, and the people involved in the trial. If you are asked or approached in any way about your jury service or anything about this case, you must respond that you have been ordered not to discuss the matter and to report the contact to the court.
Do not read, watch, or listen to any news or media accounts or commentary about the case or anything to do with it; do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials; and do not make any investigation or in any other way try to learn about the case on your own.
The law requires these restrictions to ensure the parties have a fair trial based on the same evidence that each party has had an opportunity to address. A juror who violates these restrictions jeopardizes the fairness of these proceedings, and a mistrial could result that would require the entire trial process to start over. If any juror is exposed to any outside information, please notify the court immediately. Your verdict must be based solely on the evidence and on the law as I have given it to you in these instructions. However, nothing that I have said or done is intended to suggest what your verdict should be - that is entirely for you to decide.
INSTRUCTION NO. 23
Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by your notes or those of your fellow jurors.
INSTRUCTION NO. 24
The punishment provided by law for this crime is for the court to decide. You may not consider punishment in deciding whether the government has proved its case against the defendant beyond a reasonable doubt.
INSTRUCTION NO. 25
A verdict form has been prepared for you. After you have reached unanimous agreement on a verdict, your foreperson should complete the verdict form according to your deliberations, sign and date it, and advise the clerk that you are ready to return to the courtroom.
INSTRUCTION NO. 26
If it becomes necessary during your deliberations to communicate with me, you may send a note through the security officer, signed by any one or more of you. No. member of the jury should ever attempt to communicate with me except by a signed writing, and I will respond to the jury concerning the case only in writing or here in open court. If you send out a question, I will consult with the lawyers before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone-including me-how the jury stands, numerically or otherwise, on any question submitted to you, including the question of the guilt of the defendant, until after you have reached a unanimous verdict or have been discharged.