Opinion
07-CR-110-S.
September 12, 2007
ORDER
Attached for the parties' consideration are draft voir dire questions, jury instructions and a verdict form.
STATEMENT OF THE CASE AND VOIR DIRE
Statement of the case: This is a criminal case, in which the defendant, Codey Hoppe, is charged with unlawfully possessing a firearm with an obliterated serial number. The defendant has entered a plea of not guilty to this charge.1. Scheduling: this case will begin today and conclude today. Are any of you actually unable to sit as jurors because of this schedule?
2. Is there anything about the nature of the charge in this case that might affect your ability to be impartial in this case?
3. The court reads Pattern Jury Instructions of the Seventh Circuit:
Presumption of Innocence. The defendant is presumed to be innocent of the charge. This presumption remains with the defendant throughout every stage of the trial and during your deliberations on the verdict, and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
Burden of Proof. The government has the burden of proving the guilt of the defendant beyond a reasonable doubt, and this burden remains on the government throughout the case. The defendant is not required to prove his innocence or to produce any evidence.
The defendant has an absolute right not to testify. The fact that the defendant does not testify cannot be considered by you in any way in arriving at your verdict.
Would any of you be unable or unwilling to follow these instructions?
4. Ask counsel to introduce themselves, the defendants and the case agent. Ask whether jurors know them.
5. Invite each juror, in turn, to rise, and provide the following information:
Name, age, and city or town of residence.
Marital status and number of children, if any.
Current occupation (former if retired).
Current (or former) occupation of your spouse and any adult children.
Any military service, including branch, rank and approximate date of discharge.
Level of education, and major areas of study, if any.
Memberships in any groups or organizations.
Hobbies and leisure-time activities.
Favorite types of reading material.
Favorite types of television shows.
Whether you regularly listen to talk radio, and if so, to which programs.
6. Do any of you in the jury box know each other from before today?
7. Have any of you, your relatives, or close friends ever been accused of, or convicted of any criminal offense, or any offense involving cocaine or marijuana? [Sidebar if necessary]. Would this affect your ability to be impartial in this case?
8. How many of you own firearms or live with someone who possesses firearms? Would this affect your ability to be impartial in this case?
9. Other than what you have already told us, do any of you belong to any groups or organizations that concern themselves with firearms or the possession of firearms? Would this affect your ability to be impartial in this case?
10. Do any of you have any strong opinions or feelings about firearms or the possession of firearms? Would this affect your ability to be impartial in this case?
11. Have any of you, your family or close friends ever been injured by a firearm? Would this affect your ability to be impartial in this case?
12. Have any of you, your relatives, or close friends ever been the victim of any crime? Would this affect your ability to be impartial in this case?
13. Have any of you, your relatives, or close friends ever been a witness in a trial? Is there anything about this experience that might affect your ability to be impartial in this case?
14. Have any of you, your relatives, or close friends ever had any negative experience with any lawyer, any court, or any legal proceeding that would affect your ability to be impartial in this case?
15. Do any of you, by virtue of past dealings with the United States government, or for any reason, have any bias for or against the government in a criminal case?
16. Have any of you, your relatives, or close friends ever worked for the local, county, state, or federal government? Would this affect your ability to be impartial in this case?
17. Have any of you, your relatives, or close friends ever worked for, or had other professional contact with any law enforcement, investigative or security company or agency, or any prison? Would this affect your ability to be impartial in this case?
18. Would any of you judge the credibility of a witness who was a law enforcement officer or government employee differently from other witnesses solely because of his or her official position?
19. If the defendant were to choose to testify, would any of you judge his credibility differently from other witnesses solely because it was the defendant who was testifying?
20. How many of you have served previously as a juror in another case? Please tell us in which court you served, approximately when, the type of cases you heard, whether you were foreperson, and the verdicts.
21. If at the conclusion of the trial you were not to be convinced of the defendant's guilt beyond a reasonable doubt, is there any one of you who would not, or could not, return a verdict of not guilty?
22. If at the conclusion of the trial you were to be convinced of the defendant's guilt beyond a reasonable doubt, is there any one of you who would not, or could not, return a verdict of guilty?
23. The court will instruct you on the law to be applied in this case. You are required to accept and follow the court's instructions in that regard, even though you may disagree with the law. Is there any one of you who cannot accept this requirement?
24. Do you know of any reason whatever, either suggested by these questions or otherwise, why you could not sit as a trial juror with absolute impartiality to all the parties in this case?
JURY INSTRUCTIONS
Members of the jury, you have seen and heard all the evidence and the arguments of the attorneys. Now I will instruct you on the law.You have two duties as a jury. Your first duty is to decide the facts from the evidence in the case. This is your job, and yours alone.
Your second duty is to apply the law that I give you to the facts. You must follow my instructions on the law, even if you disagree with them. Each of the instructions is important. You must follow all of them.
Perform these duties fairly and impartially. Do not allow sympathy, prejudice, fear or public opinion to influence you. Do not allow any person's race, color, religion, national ancestry or sex to influence you.
Nothing I say now and nothing I said or did during the trial is meant to indicate any opinion on my part about what the facts are or about what your verdict should be.
The evidence consists of the testimony of the witnesses, the exhibits admitted in evidence and stipulations.
A stipulation is an agreement between both sides that certain facts are true.
I have taken judicial notice of certain facts that may be regarded as matters of common knowledge. You may accept those facts as proved, but you are not required to do so.
You are to decide whether the testimony of each of the witnesses is truthful and accurate, in part, in whole, or not at all, as well as what weight, if any, you give to the testimony of each witness. In evaluating the testimony of any witness, you may consider among other things: the witness's age; the witness's intelligence; the ability and opportunity the witness had to see, hear, or know the things the witness testified about; the witness's memory; any interest, bias, or prejudice the witness may have; the manner of the witness while testifying; and the reasonableness of the witness's testimony in light of all the evidence in the case.
You should judge the defendant's testimony in the same way as you judge the testimony of any other witness.
You should use common sense in weighing the evidence. Consider the evidence in light of your own observations in life. You are allowed to draw reasonable inferences from facts. In other words, you may look at one fact and conclude from it that another fact exists. Any inferences you make must be reasonable and must be based on the evidence in the case.
Some of you have heard the phrases "circumstantial evidence" and "direct evidence." Direct evidence is the testimony of someone who claims to have personal knowledge of the commission of the crime which has been charged, such as an eyewitness. Circumstantial evidence is the proof of a series of facts that tend to show whether the defendant is guilty or not guilty. The law makes no distinction between the weight to be given either direct or circumstantial evidence. You should decide how much weight to give to any evidence. You should consider all the evidence in the case, including the circumstantial evidence, in reaching your verdict.
Certain things are not evidence. I will list them for you:
First, testimony and exhibits that I struck from the record or that I told you to disregard are not evidence and must not be considered.
Second, anything that you may have seen or heard outside the courtroom is not evidence and must be entirely disregarded. This includes any press, radio, or television reports you may have seen or heard. Such reports are not evidence and must not influence your verdict.
Third, questions and objections by the lawyers are not evidence. Lawyers have a duty to object when they believe a question is improper. You should not be influenced by any objection or by my ruling on it.
Fourth, the lawyers' statements to you are not evidence. The purpose of these statements is to discuss the issues and the evidence. If the evidence as you remember it differs from what the lawyers said, your collective memory is what counts.
It is proper for a lawyer to interview any witness in preparation for trial.
You have received evidence of a statement said to be made by the defendant to ____________________________________. You must decide whether the defendant did make the statement. If you find that the defendant did make the statement, then you must decide what weight, if any, you believe the statement deserves. In making this decision, you should consider all matters in evidence having to do with the statement, including those concerning the defendant himself, and the circumstances under which the statement was made.
The defendant has an absolute right not to testify. In arriving at your verdict, you must not consider the fact that the defendant did not testify.
A statement made by the defendant before trial that is inconsistent with the defendant's testimony here in court may be used by you as evidence of the truth of the matters contained in it, and also in deciding the truthfulness and accuracy of the defendant's testimony in this trial.
You have heard evidence that the defendant has been convicted of a crime. You may use the fact of the defendant's conviction in deciding whether the defendant's testimony is truthful as a whole, in part, or not at all. You may not consider it for any other purpose.
You have heard evidence of acts of the defendant other than those charged in the indictment. Specifically, ______________________________. You may consider this evidence only on the questions of _____________________________. You should consider this evidence only for this limited purpose.
You have heard evidence that ______________________ have been convicted of crimes. You may consider this evidence only in deciding whether the testimony of any of these witnesses is truthful in whole, in part, or not at all. You may not consider this evidence for any other purpose.
You have heard [reputation/opinion] evidence about the character trait of ___________________________ for truthfulness [or untruthfulness]. You should consider this evidence in deciding the weight that you will give to ________________________'s testimony.
You have heard [reputation and/or opinion] evidence about the defendant's character trait for [truthfulness, peacefulness, etc]. You should consider character evidence together with all the other evidence in the case and in the same way.
You have heard evidence that before the trial, witnesses made statements that may be inconsistent with their testimony here in court. If you find that it is inconsistent, you may consider the earlier statement only in deciding the truthfulness and accuracy of that witness's testimony in this trial. You may not use it as evidence of the truth of the matters contained in that prior statement. If that statement was made under oath, you may also consider it as evidence of the truth of the matters contained in that prior statement.
A statement made by the defendant before trial that is inconsistent with the defendant's testimony here in court may be used by you as evidence of the truth of the matters contained in it, and also in deciding the truthfulness and accuracy of that defendant's testimony in this trial.
______________________________________ has admitted lying under oath. You may give his testimony such weight as you believe it deserves, keeping in mind that it must be considered with caution and great care.
You have heard testimony that _____________________ has received benefits from the government in connection with this case. Specifically, ___________________________ You may give the testimony of this witness such weight as you believe it deserves, keeping in mind that it must be considered with caution and great care.
You have heard testimony from _____________________________ who each stated that he or she was involved in the commission of the alleged crime charged against the defendant. You may give the testimony of these witnesses such weight as you believe it deserves, keeping in mind that it must be considered with caution and great care.
The witnesses ____________________________ have pleaded guilty to a crime arising out of the same allegations for which the defendant is now on trial. You may give the testimony of these witnesses such weight as you believe it deserves, keeping in mind that it must be considered with caution and great care. Moreover, the guilty pleas of these defendants cannot to be considered as evidence against the defendant on trial now.
The witnesses ______________________________ have received immunity; that is, a promise from the government that any testimony or other information he or she provided would not be used against him in a criminal case. You may give the testimony of these witnesses such weight as you believe it deserves, keeping in mind that it must be considered with caution and great care.
You must consider with caution and great care the testimony of any witness who is currently addicted to drugs. It is up to you to determine whether the testimony of a drug addict has been affect by drug use or the need for drugs.
The witnesses ______________________________________ gave opinions about matters requiring special knowledge or skill. You should judge this testimony in the same way that you judge the testimony of any other witness. The fact that such a person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness' qualifications and all of the other evidence in the case.
Certain summaries are in evidence. They truly and accurately summarize the contents of voluminous books, records or documents, and should be considered together with and in the same way as all other evidence in the case.
Certain summaries are in evidence. Their accuracy has been challenged by the defendant. Thus, the original materials upon which the exhibits are based have also been admitted into evidence so that you may determine whether the summaries are accurate.
You have heard recorded conversations. These recorded conversations are proper evidence and you may consider them, just as any other evidence.
When the recordings were played during the trial, you were furnished with transcripts of the recorded conversations prepared by government agents.
The recordings are the evidence, and the transcripts were provided to you only as a guide to help you follow as you listened to the recordings. The transcripts are not evidence of what was actually said or who said it. It is up to you to decide whether the transcripts correctly reflect what was said and who said it. If you noticed any difference between what you heard on the recordings and what you read in the transcripts, then you must rely on what you heard, not on what you read. And if after careful listening, you could not hear or understand certain parts of the recordings, then you must ignore the transcripts as far as those parts are concerned.
I am providing you with a disc containing the recordings and a CD player. You are not required to play the CD, in part or in whole. You may rely, instead, on your recollections of these recordings as you heard them at trial. If you do decide to listen to a recording and you wish to have the transcript corresponding to that recording, as the bailiff in writing and then the transcript will be given to you. You may choose to listen to the recording without the transcript.
THE INDICTMENT
The defendant is charged in the indictment as follows:
COUNT 1
On or about December 19, 2005, in the Western District of Wisconsin, the defendant, Codey Hoppe, knowingly and unlawfully possessed in or affecting commerce, a Ruger, Super Redhawk, .44 magnum revolver, which had the importer's or manufacturer's serial number obliterated, this firearm having previously traveled in and affected interstate commerce.
The indictment in this case is the formal method of accusing the defendant of a crime and placing the defendant on trial. It is not evidence against the defendant and does not create any implication of guilt.
The defendant is not on trial for any act or any conduct not charged in the indictment.
The defendant is presumed to be innocent of the charge. This presumption continues during every stage of the trial and your deliberations on the verdict. It is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty as charged.
The government has the burden of proving the defendant's guilt beyond a reasonable doubt. This burden of proof stays with the government throughout the case. The defendant is never required to prove his innocence or to produce any evidence at all.
The indictment charges that the offense was committed "on or about" a certain date. The government must prove that the offense happened reasonably close to that date but it is not required to prove that the alleged offense happened on that exact date.
ELEMENTS OF THE CHARGE
To sustain the charge against the defendant in Count 1, the government must prove these elements:1) On or about December 19, 2005, the defendant knowingly possessed the firearm charged in Count 1;
2) The serial number on this firearm had been obliterated;
3) The defendant knew the serial number had been obliterated; and
4) This firearm had traveled in interstate commerce.
If you find from your consideration of all the evidence that each of these elements has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any one of these elements has not been proved beyond a reasonable doubt, then you must find the defendant not guilty.
Possession of an object is the ability to control it. Possession may exist even when a person is not in physical contact with the object, but knowingly has the power and intention to exercise direction and control over it, either directly or through others.
"Obliterated' means wiped out, rubbed off or erased. [ www.thefreedictionary.com/obliterate]
A firearm has traveled in interstate commerce if it has traveled between one state and any other state or country, or across a state or national boundary line. The government does not need to prove how the firearm traveled in interstate commerce, or that the firearm's travel was related to the defendant's possession of it, or that the defendant knew that the firearm traveled in interstate commerce.
The term "knowingly" means that the defendant realized what he was doing and was aware of the nature of his or her conduct and did not act through ignorance, mistake or accident. Knowledge may be proved by the defendant's conduct and by all the facts and circumstances surrounding the case.
For the purpose of proving the third element of Count 1, the government must prove that defendant knew the serial number on the specified firearm was obliterated but it does not need to prove that the defendant knew that it was unlawful to possess a weapon with an obliterated serial number, and the government does not need to prove that the defendant performed the obliteration or knew who did.
By themselves, the defendant's presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish the defendant's guilt.
If the defendant performed acts that advanced a criminal activity but had no knowledge that a crime was being committed or was about to be committed, those acts alone are not sufficient to establish the defendant's guilt.
An offense may be committed by more than one person. The defendant's guilt may be established without proof that the defendant personally performed every act constituting the crime charged.
If the defendant knowingly caused the acts of another, the defendant is responsible for those acts as though he personally committed them.
The defendant need not personally perform every act constituting the crime charged. Every person who willfully participates in the commission of a crime may be found guilty.
Whatever a person is legally capable of doing he can do through another person by causing that person to perform the act. If the defendant willfully ordered, directed or authorized the acts of another, he is responsible for such acts as though he personally committed them.
Any person who knowingly aids, abets, counsels, commands, induces or procures the commission of a crime is guilty of that crime. However, that person must knowingly associate himself or herself with the criminal venture, participate in it and try to make it succeed.
Upon retiring to the jury room, select one of your number as your presiding juror. This person will preside over your deliberations and will be your representative here in court.
A verdict form has been prepared for you. [ Court reads the verdict form.]
Take this form to the jury room, and when you have reached unanimous agreement on the verdict, your foreperson will fill in, date and sign the form.
The verdict must represent the considered judgment of each juror. Whether your verdict is guilty or not guilty, it must be unanimous. You should make every reasonable effort to reach a verdict. In doing so, you should consult with one another, express your own views and listen to the opinions of your fellow jurors. Discuss your differences with an open mind. Do not hesitate to re-examine your own views and change your opinion if you come to believe it is wrong. But do not surrender your honest beliefs about the weight or effect of evidence solely because of the opinions of your fellow jurors or for the purpose of returning a unanimous verdict.
The twelve of you should give fair and equal consideration to all the evidence and deliberate with the goal of reaching an agreement consistent with the individual judgment of each juror. You are impartial judges of the facts. Your only interest is to determine whether the government has proved its case beyond a reasonable doubt.
If it becomes necessary during your deliberations to communicate with the court, you may send a note by a bailiff, signed by your foreperson or by one or more members of the jury. No member of the jury should ever attempt to communicate with the court by any means other than a signed writing, and the court will never communicate with any member of the jury on any subject touching the merits of the case otherwise than in writing, or orally here in open court. You will note from the oath about to be taken by the bailiffs that they too, as well as all other persons, are forbidden to communicate in any way or manner with any member of the jury on any subject touching the merits of the case. You must not reveal to any person, including the court, your numerical split on any verdict question until you have reached a unanimous verdict on every defendant and every count.
VERDICT COUNT 1
We, the Jury in the above-entitled cause, find the defendant, Codey Hoppe,
_________________________________ ("Guilty" or "Not Guilty") of the offense charged in Count 1 of the indictment.
__________________________________ Presiding Juror Madison, WisconsinDate: ____________________