UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

UNITED STATES OF AMERICA )

)
v. ) Criminal No: H-92-152
)
JOHN J. JOHNSON, ) (filed 3/10/94)
)
Defendant. )
)
)

COURT'S INSTRUCTIONS TO THE JURY

AT THE CONCLUSION OF TRIAL

Members of the Jury:

In any jury trial there are, in effect, two judges. I am one of the judges; the other is the

jury. It is my duty to preside over the trial and to decide what evidence is proper for your

consideration. It is also my duty at the end of the trial to explain to you the rules of law that you

must follow and apply in arriving at your verdict.

First, I will give you some general instructions which apply in every case, for example,

instructions about burden of proof and how to judge the believability of witnesses. Then I will

give you some specific rules of law about this particular case, and finally I will explain to you

the procedures you should follow in your deliberations.

 DUTY TO FOLLOW INSTRUCTIONS

You, as jurors, are the judges of the facts. But in determining what actually happened --

that is, in reaching your decision as to the facts -- it is your sworn duty to follow all of the rules

of law as I explain them to you.

You have no right to disregard or give special attention to any one instruction, or to

question the wisdom or correctness of any rule I may state to you. You must not substitute or

follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply

the law as I explain it to you, regardless of the consequences.

It is also your duty to base your verdict solely upon the evidence, without prejudice or

sympathy. That was the promise you made and the oath you took before being accepted by the

parties as jurors, and they have the right to expect nothing less.

PRESUMPTION OF INNOCENCE, BURDEN OF PROOF, REASONABLE DOUBT

The indictment or formal charge against a defendant is not evidence of guilt. Indeed, the

defendant is presumed by the law to be innocent. The law does not require a defendant to prove

his innocence or produce any evidence at all, and no inference whatsoever may be drawn from

the election of a defendant not to testify. The government has the burden of proving the

defendant guilty beyond a reasonable doubt, and if it fails to do so, you must acquit the

defendant.

While the government's burden of proof is a strict or heavy burden, it is not necessary

that the defendant's guilt be proved beyond all possible doubt. It is only required that the

government's proof exclude any "reasonable doubt" concerning the defendant's guilt.

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 A "reasonable doubt" is a doubt based upon reason and common sense after careful and

impartial consideration of all the evidence in the case. Proof beyond a reasonable doubt,

therefore, is proof of such a convincing character that you would be willing to rely and act upon

it without hesitation in the most important of your own affairs. If you are convinced that the

accused has been proved guilty beyond reasonable doubt, say so. If you are not convinced, say

so.

EVIDENCE -- EXCLUDING ARGUMENT OF COUNSEL AND COMMENT OF

COURT

As I told you earlier, it is your duty to determine the facts. In doing so you must consider

only the evidence presented during the trial, including the sworn testimony of the witnesses and

the exhibits. Remember that any statements, objections or arguments made by the lawyers are

not evidence. The function of the lawyers is to point out those things that are most significant or

most helpful to their side of the case, and in so doing to call your attention to certain facts or

inferences that might otherwise escape your notice. In the final analysis, however, it is your own

recollection and interpretation of the evidence that controls in the case. What the lawyers say is

not binding upon you.

Also, do not assume from anything I may have done or said during the trial that I have

any opinion concerning any of the issues in this case. Except for the instructions to you on the

law, you should disregard anything I may have said during the trial in arriving at your own

findings as to the facts.

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 EVIDENCE -- INFERENCES -- DIRECT AND CIRCUMSTANTIAL

While you should consider only the evidence, you are permitted to draw such reasonable

inferences from the testimony and exhibits as you feel are justified in the light of common

experience. In other words, you may make deductions and reach conclusions which reason and

common sense lead you to draw from the facts which have been established by the evidence.

Do not be concerned about whether evidence is "direct evidence" or "circumstantial

evidence". You should consider and weigh all of the evidence that was presented to you.

CHARTS AND SUMMARY EXHIBITS

Certain charts and summaries have been admitted into evidence in order to summarize

facts shown by documents and records which themselves are too voluminous to be conveniently

examined in court. You should consider the evidence presented concerning the preparation and

accuracy of those charts and summaries, and give each of them such weight as you believe it

deserves. If your recollection of the evidence differs from the exhibit, rely on your own

recollection.

CHARACTER EVIDENCE

Where a defendant has offered evidence of good general reputation for truth and veracity,

or honesty and integrity, or as a law-abiding citizen, you should consider such evidence along

with all the other evidence in the case.

Evidence of a defendant's reputation, inconsistent with those traits of character ordinarily

involved in the commission of the crime charged, may give rise to a reasonable doubt, since you

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may think it improbable that a person of good character in respect to those traits would commit

such a crime.

You will always bear in mind, however, that the law never imposes upon a defendant in a

criminal case the burden or duty of calling any witnesses or producing any evidence.

EXPERT WITNESSES

During the trial you have heard the testimony of witnesses who were described as

experts.

If scientific, technical, or other specialized knowledge might assist the jury in

understanding the evidence or in determining a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may testify and state an opinion concerning

such matters.

Merely because an expert witness has expressed an opinion does not mean, however, that

you must accept this opinion. The same as with any other witness, it is up to you to decide

whether you believe this testimony and choose to rely upon it. Part of that decision will depend

on your judgment about whether the witness's background or training and experience is

sufficient for the witness to give the expert opinion that you heard. You must also decide

whether the witness's opinions were based on sound reasons, judgment, and information.

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 TRANSCRIPTS OF TAPE RECORDED CONVERSATIONS

Government Exhibits 8a and 8b have been identified as typewritten transcripts of the oral

conversations which can be heard on the tape recording received in evidence as Government

Exhibit 7. The transcripts also purport to identify the speakers engaged in such conversations.

I have admitted the transcripts for the limited and secondary purpose of aiding you in

following the content of the conversations as you listen to the tape recordings, and also to aid

you in identifying the speakers.

However, you are specifically instructed that whether the transcripts correctly or

incorrectly reflect the content of the conversations or the identity of the speakers is entirely for

you to determine based upon your own evaluation of the testimony you have heard concerning

the preparation of the transcripts and from your own examination of the transcripts in relation to

your hearing of the tape recordings themselves as the primary evidence of their contents. If you

should determine that the transcripts are in any respect incorrect or unreliable, you should

disregard them to that extent.

CREDIBILITY OF WITNESSES

I remind you that it is your job to decide whether the government has proved the guilt of

the defendant beyond a reasonable doubt. In doing so, you must consider all of the evidence.

This does not mean, however, that you must accept all of the evidence as true or accurate.

You are the sole judges of the credibility or "believability" of each witness and the

weight to be given the witness's testimony. An important part of your job will be making

judgments about the testimony of the witnesses who testified in this case. You should decide

whether you believe what each person had to say, and how important that testimony was. In

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making that decision I suggest that you ask yourself a few questions: Did the person impress

you as honest? Did the witness have any particular reason not to tell the truth? Did the witness

have a personal interest in the outcome of the case? Did the witness have any relationship with

either the government or the defense? Did the witness seem to have a good memory? Did the

witness have the opportunity and ability to understand the questions clearly and answer them

directly? Did the witness's testimony differ from the testimony of other witnesses? These are a

few of the considerations that will help you determine the accuracy of what each witness said.

In making up your mind and reaching a verdict, do not make any decisions simply

because there were more witnesses on one side than on the other. Do not reach a conclusion on a

particular point just because there were more witnesses testifying for one side on that point.

Your job is to think about the testimony of each witness you have heard and decide how much

you believe of what each witness had to say.

IMPEACHMENT BY PRIOR INCONSISTENCIES

The testimony of a witness may be discredited by showing that the witness testified

falsely concerning a material matter, or by evidence that at some other time the witness said or

did something, or failed to say or do something, which is inconsistent with the testimony that the

witness gave at this trial.

Earlier statements of a witness were not admitted into evidence to prove that the

contents of those statements are true. You may consider the earlier statements only to determine

whether you think they are consistent or inconsistent with the trial testimony of the witness and

therefore whether they affect the credibility of that witness.

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 If you believe that a witness has been discredited in this manner, it is your exclusive

right to give the testimony of that witness whatever weight you think it deserves. Inconsistencies

or discrepancies in the testimony of a witness or between the testimony of different witnesses

may or may not cause you to disbelieve or discredit such testimony.

EFFECT OF THE DEFENDANT'S FAILURE TO TESTIFY

Any defendant in a criminal case has an absolute right under the United States

Constitution not to testify.

The fact that Mr. John J. Johnson did not testify must not be discussed or considered by

the jury in any way when deliberating and in arriving at your verdict. No inference of any kind

may be drawn from the fact that a defendant decided to exercise his privilege under the

Constitution and did not testify.

As stated before, the law never imposes upon a defendant in a criminal case the burden

or duty of calling any witnesses or of producing any evidence.

CO-CONSPIRATOR -- PLEA AGREEMENT

You have heard evidence that Joseph M. Mobley and James Maurice Johnson have

entered into plea agreements with the government. Their testimony was received in evidence

and may be considered by you. You may give their testimony such weight as you think it

deserves. Whether or not their testimony may have been influenced by their plea agreements is

for you to determine.

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 Their guilty pleas cannot, however, be considered by you as evidence of this

defendant's guilt. The guilty pleas can be considered by you only for the purpose of determining

how much, if at all, to rely upon the testimony of these witnesses.

UNINDICTED CO-CONSPIRATORS

The indictment refers to alleged co-conspirators and corporate co-conspirators who

were not included in the indictment. You should not be concerned with or speculate about why

alleged co-conspirators have not been included.

CAUTION -- PUNISHMENT

If the defendant is found guilty, it will be my duty to decide what the punishment will

be. You should not be concerned with punishment in any way. It should not enter your

consideration or discussions.

SINGLE DEFENDANT - MULTIPLE COUNTS

A separate crime is charged in each count of the indictment. Each count and the

evidence pertaining to it should be considered separately. The fact that you may find the

defendant guilty or not guilty as to one of the crimes charged should not control your verdict as

to any other.

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 CONSPIRACY

The existence of a conspiracy is an essential element of the offenses charged in Counts I

and III of the indictment and must be proved by the government beyond a reasonable doubt. A

"conspiracy" is an agreement between two or more persons to join

together to accomplish some unlawful purpose. It is a kind of "partnership in crime" in which

each member becomes the agent of every other member.

One may become a member of a conspiracy without full knowledge of all of the details

of the unlawful scheme or the names and identities of all of the other alleged conspirators. If a

defendant understands the unlawful nature of a plan or scheme and knowingly and intentionally

joins in that plan or scheme on one occasion, that is sufficient to convict him for conspiracy even

though the defendant had not participated before and even though the defendant played only a

minor part.

The government need not prove that conspirators entered into any formal agreement;

nor that they directly stated between themselves all of the details of a scheme. Similarly, the

government need not prove that all the details of a scheme were actually agreed upon or carried

out. Nor must it prove that all of the persons alleged to have been members of a conspiracy were

such, or that alleged conspirators actually succeeded in accomplishing their unlawful objectives.

Mere presence at the scene of an event, or mere similarity of conduct among various

persons and the fact that they may have associated with each other, and may have assembled

together and discussed common aims and interests, does not necessarily establish proof of the

existence of a conspiracy. Also, a person who has no knowledge of a conspiracy, but who

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happens to act in a way which advances some object or purpose of a conspiracy, does not

thereby become a conspirator.

COUNT I CONSPIRACY TO RESTRAIN TRADE

OFFENSE CHARGED -- STATUTE DEFINING OFFENSE

Count I charges that beginning at least as early as 1985 and continuing until at least

May 1990, the defendant entered into and engaged in a combination and conspiracy to suppress

and eliminate competition by rigging bids for the award and performance of contracts to supply

wholesale grocery products to certain school districts and other public entities in southeastern

Texas, in unreasonable restraint of interstate trade and commerce in violation of Section I of the

Sherman Antitrust Act.

Section 1 of the Sherman Antitrust Act, provides in part that:

Every contract, combination . . . or conspiracy, in

restraint of trade . . . among the several States . . . is declared
to be illegal. . . . Every person who shall make any contract or
engage in any . . . conspiracy declared by sections 1-7 of this
title to be illegal shall be . . . guilty of an offense against the
laws of the United States.

PURPOSE OF SHERMAN ANTITRUST ACT

The purpose of the Sherman Antitrust Act is to preserve or advance our system of free,

competitive enterprise, and to encourage to the fullest extent practicable, free and open

competition in the market place; all to the end that the consuming public may receive better

goods and services at the lowest obtainable cost.

So, any unreasonable interference, by contract or combination or conspiracy, with the

ordinary, usual and freely-competitive pricing or distribution system of the open market in

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interstate trade and commerce, constitutes an unreasonable restraint of interstate trade, and is in

itself unlawful; and, if knowingly done, is a federal offense under the Sherman Antitrust Act.

ELEMENTS OF SHERMAN ACT OFFENSES

For you to find the defendant guilty of the crime charged in Count I of the indictment,

you must be convinced that the government has proved each of the following beyond a

reasonable doubt:

First: That the conspiracy described was knowingly formed, and was existing at or

about the time alleged;

Second: That the defendant knowingly became a member of the conspiracy; and

Third: That the conspiracy either affected interstate commerce or occurred within the

flow of interstate commerce.

SPECIFIC INTENT NEED NOT BE PROVED

To establish the required intent for Count I of the Indictment the government must

prove beyond a reasonable doubt that the defendant knowingly did something which the law

forbids. In this case, that means that the government must prove beyond a reasonable doubt that

the defendant knowingly formed, joined or participated in a combination or conspiracy to rig

bids. Since a combination or conspiracy to rig bids is unreasonable and illegal as a matter of

law, the government does not have to prove that the defendants specifically intended to

unreasonably restrain trade or that such conduct is an unreasonable restraint of trade. If you find

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beyond a reasonable doubt that the defendant agreed to rig any of the bids alleged with one or

more co-conspirators, then you must find the defendant guilty on Count I.

INTERSTATE COMMERCE

An essential element of the offense charged in Count I and prohibited by the Sherman

Act is that the unreasonable restraint must involve interstate commerce. The term "interstate

commerce" includes the movement of products or services across state lines, or in the flow of

interstate commerce, as well as entirely intrastate transactions that substantially affect interstate

commerce.

To establish this element, it is sufficient for the government to demonstrate a substantial

effect on interstate commerce generated by the conspirators' general business activities. The

government need not show that the conspiracy itself actually had an effect on interstate

commerce, although such proof would also be sufficient to establish this element.

The amount, quantity, or value of interstate commerce involved or affected is

unimportant, so long as you find that the restraint charged in the indictment or the general

business activities of the defendant related to the conspiracy had some effect upon interstate

commerce.

BID-RIGGING PER SE UNREASONABLE

Bid rigging is an agreement between two or more persons to eliminate, reduce, or

interfere with competition for a job or contract that is to be awarded on the basis of bids. Bid

rigging may be an agreement among competitors about the prices to be bid, who should be the

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successful bidder, who should bid high, who should bid low, or who should refrain from bidding;

or any other agreement with respect to bidding that affects, limits, or avoids competition among

them.

Every conspiracy to rig bids is unlawful, regardless of the motives of the parties or any

economic justification. This is because the aim and result of every bid-rigging agreement, if

successful, is the elimination of one form of competition.

If there was a conspiracy as charged in Count I, it does not matter whether the prices

paid to the defendants and co-conspirators were reasonable or unreasonable; high or low; fair or

unfair. In this case, if you find beyond a reasonable doubt that the defendant was a member of a

conspiracy to rig bids as alleged in Count I of the indictment, then you need not decide whether

such conspiracy was reasonable or unreasonable.

I further charge you that to constitute illegal bid rigging under the Sherman Act, it is not

required that the conspirators agreed on the exact prices they will submit.

Mere similarity of prices charged does not, without more, establish the existence of a

conspiracy. In addition, a mere exchange of pricing information is not, without more, illegal.

However, those facts and circumstances, if shown by the evidence in this case, may be

considered by the jury in determining whether the similarity of pricing resulted from

independent acts of business concerns freely competing in the open market or whether it resulted

from a mutual agreement, or arrangement, or understanding between two or more of them.

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 COUNT II
FALSE STATEMENT
OFFENSE CHARGED -- STATUTE DEFINING OFFENSE

Count II of the indictment charges that on or about August 15, 1989, in the Southern

District of Texas, the defendant knowingly and willfully made and caused to be made certain

false writings and documents, knowing the same to contain false, fictitious and fraudulent

statements and entries as to material facts, in matters within the jurisdiction of the Veterans

Administration, an agency of the United States of America.

Title 18 United States Code Section 1001 provides in part, that:

Whoever, in any matter within the jurisdiction of any

department or agency of the United States . . . makes
any false, fictitious or fraudulent statements or
representations . . . .

shall be guilty of an offense against the United States.

COUNT II
ELEMENTS OF THE OFFENSE

For you to find the defendant guilty of the crime charged in Count II of the

indictment, you must be convinced that the government has proved each of the

following beyond a reasonable doubt:

First: That the defendant made a false statement to the Veterans

Administration;

Second: That the defendant made the statement intentionally, knowing that it

was false; and

Third: That the defendant made the false statement for the purpose of

misleading the Veterans Administration.

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 It is not necessary to show that the Veterans Administration was in fact

misled.

If you find that the government has proved these things, you do not need to

consider whether the false statement was material, even though the language is used in

the indictment. This is not a question for the jury to decide.

ON OR ABOUT

You will note that Count II of the indictment charges that the offense was

committed on or about August 15, 1989. The government does not have to prove that

the crime was committed on that exact date, so long as the government proves beyond

a reasonable doubt that the defendant committed the crime on a date reasonably near

August 15, 1989, the date stated in the indictment.

COUNT III
CONSPIRACY TO COMMIT MAIL FRAUD
NATURE OF OFFENSE - STATUTE DEFINING OFFENSE

Count III of the indictment charges that beginning at least as early as 1985

and continuing until at least as late as May 1990, in the Southern District of Texas, the

defendant and co-conspirators did knowingly and willfully conspire, combine and

agree with each other to commit offenses against the United States, that is, to use and

cause to be used the United States mails in furtherance and execution of a scheme and

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artifice to defraud public school districts in southeastern Texas of money and property

by means of false and fraudulent representations, in violation of 18 U.S.C. § 1341.

Title 18 United States Code Section 371 provides in part, that:

If two or more persons conspire . . . to commit any

offense against the United States, . . . and one or more
of such persons do any act to affect the object of the
conspiracy . . . .

an offense against the United States has been committed.

COUNT III ELEMENTS OF THE OFFENSE

The conspiracy charged in Count III of this indictment is a separate and

different offense from the conspiracy charged in Count I. Furthermore, the elements

of a conspiracy to commit mail fraud are different from those of a conspiracy to

violate the Sherman Act.

For you to find the defendant guilty of this crime, you must be convinced that

the government has proved each of the following beyond a reasonable doubt:

First: That two or more persons made an agreement to commit the crime of

mail fraud as charged in Count III of the indictment;

Second: That the defendant knew the unlawful purpose of the agreement and

joined in it willfully, that is, with the intent to further the unlawful purpose; and

Third: That one of the conspirators during the existence of the conspiracy

knowingly committed at least one of the overt acts described in the indictment, in

order to accomplish some object or purpose of the conspiracy.

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 This last element is not an element of the conspiracy charged in Count I. In

other words, the government must show an overt act in furtherance of the conspiracy

only to prove the conspiracy to commit mail fraud, not to prove the Sherman Act

conspiracy.

The term "overt act" means some type of outward, objective action

performed by one of the parties to or one of the members of the agreement or

conspiracy which evidences that agreement.

Although you must unanimously agree that the same overt act was

committed, the government is not required to prove more than one of the overt acts

charged.

The overt acts may, but for the alleged illegal agreement, appear totally

innocent and legal.

COUNT III
CONSPIRACY: SUBSTANTIVE OFFENSE: ELEMENTS

To assist you in determining whether there was an agreement or

understanding to commit mail fraud you are advised that the elements of mail fraud

are:

First: That the defendant knowingly participated with his co-conspirators in

creating a scheme to defraud public school districts in Southeastern Texas of money

and property by means of false and fraudulent representations, as charged in Count III

of the indictment;

Second: That the defendant acted with a specific intent to commit fraud; and

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 Third: That the defendant mailed something or caused another person to mail

something for the purpose of carrying out the scheme.

A "scheme to defraud" includes any scheme to deprive another of money or

property by means of false or fraudulent pretenses, representations, or promises.

A representation may be "false" when it constitutes a half truth, or effectively

conceals a material fact, provided it is made with intent to defraud.

It is not necessary that the government prove all of the details alleged in the

indictment concerning the precise nature and purpose of the scheme, or that the

material mailed was false or fraudulent, or that the alleged scheme actually succeeded

in defrauding anyone, or that the use of the mails was intended as the specific or

exclusive means of accomplishing the alleged fraud.

To "cause" the mails to be used is to do an act with knowledge that the use of

the mails will follow in the ordinary course of business or where such use can

reasonably be foreseen.

Keep in mind that Count III of the indictment charges a conspiracy to commit

mail fraud and not that mail fraud was committed. In a conspiracy to commit mail

fraud the government does not need to prove an actual mailing, or that the defendant

was actually involved in the mailings directly. Rather, the government must prove

that the scheme to defraud reasonably contemplated the use of the mail or that the use

of the mail was reasonably foreseeable or that the conspirators intended that the mails

be used in furtherance of the scheme.

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 INTENT TO DEFRAUD

Count III requires the government to prove beyond a reasonable doubt that

the defendant acted with a specific intent to commit fraud. To act with an "intent to

defraud" means to act knowingly and with the intention or the purpose to deceive or to

cheat.

An intent to defraud is accompanied, ordinarily, by a desire or a purpose to

bring about some gain or benefit to oneself or some other person or by a desire or a

purpose to cause some loss to some person.

PROOF OF INTENT

Intent ordinarily may not be proved directly, because there is no way of

fathoming or scrutinizing the operations of the human mind. But you may infer the

defendant's intent from the surrounding circumstances. You may consider any

statement made and done or omitted by the defendant, and all other facts and

circumstances in evidence which indicate his state of mind.

You may consider it reasonable to draw the inference and find that a person

intends the natural and probable consequences of acts knowingly and willfully done.

As I have said, it is entirely up to you to decide what facts to find from the evidence.

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 PERIOD OF THE CONSPIRACY

The evidence in the case need not establish the exact time during which the

alleged conspiracies existed. It is sufficient if the evidence in the case shows beyond a

reasonable doubt that the offenses charged in Counts I and III existed on dates, or

during times, reasonably near the dates, or times, alleged in the indictment.

JURISDICTION AND VENUE

Before you can find the defendant guilty of committing the crimes charged in

either Count I or Count III of the Indictment, you must find beyond reasonable doubt

that within the five-year period immediately preceding July 7, 1992, some means,

methods or practices were employed by or under the authority of the members of each

of the alleged conspiracies within the Southern District of Texas.

This district includes Austin, Brazos, Colorado, Fayette, Fort Bend, Grimes,

Harris, Madison, Montgomery, San Jacinto, Walker, Waller, and Wharton Counties.

KNOWINGLY AND WILLFULLY

The word "knowingly," as that term has been used from time to time in these

instructions, means that the act was done voluntarily and intentionally and not because

of mistake or accident.

The word "willfully" as that term has been used from time to time in these

instructions, means that the act was committed voluntarily and purposely, with the

specific intent to do something the law forbids.

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 DUTY TO DELIBERATE - VERDICT FORM

To reach a verdict, all of you must agree. Your verdict must be unanimous

on each count of the indictment. Your deliberations will be secret. You will never

have to explain your verdict to anyone.

It is your duty as jurors, to consult with one another, and to deliberate in an

effort to reach agreement if you can do so. Each of you must decide the case for

yourself, but only after an impartial consideration of the evidence in the case with

your fellow jurors. During your deliberations, do not hesitate to re-examine your own

views and change your opinion if convinced that you were wrong. But do not give up

your honest beliefs as to the weight or effect of the evidence solely because of the

opinion of your fellow jurors, or for the mere purpose of returning a verdict.

Remember at all times, you are judges -- judges of the facts. Your sole

interest is to seek the truth from the evidence in the case, to decide whether the

government has proved the defendant guilty beyond a reasonable doubt.

When you go to the jury room, the first thing that you should do is select one

of your number as your foreperson, who will help to guide your deliberations and will

speak for you here in the courtroom.

A form of verdict has been prepared for your convenience.

[Explain Verdict Form]

The foreperson will write the unanimous answer of the jury in the space

provided for in each count of the indictment, either guilty or not guilty. At the

conclusion of your deliberations, the foreperson should date and sign the verdict.

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 If you need to communicate with me during your deliberations, the

foreperson should write the message and give it to the marshal. I will either reply in

writing or bring you back into the courtroom to answer your message.

Bear in mind that you are never to reveal to any person, not even to the court,

how the jury stands, numerically or otherwise, on any count of the indictment, until

after you have reached a unanimous verdict.

The foregoing jury instructions were given to the jury on

this day of , 1994.

HON. DAVID HITTNER

United States District Judge

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