Free Proposed Jury Instructions - District Court of Arizona - Arizona

PAUL CHARLTON United States Attorney District of Arizona SUE A. KLEIN Assistant U. S. Attorney Arizona Bar No. 11253 Two Renaissance Square 40 North Central Ave., Ste. 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 E-mail: [email protected] JOHN A. WEIL Arizona State Bar No. 005621 Weil & Weil, PLLC 1600 S. Fourth Avenue, Ste. C Yuma, Arizona 85366-1977 Telephone: (928)783-2161 E-mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA UNITED STATES OF AMERICA, ) ) ) ) ) } ) ) ) ) ) ) ) ) )

Plaintiff, v.

CIV-03-2006 PHX SRB REQUESTED INSTRUCTIONS TO THE JURY

192.019 ACRES OF LAND, more or less, in the County of Yuma, State of Arizona;

Defendants.

The parties request that the following instructions be given to the jury in the trial of the above-captioned matter. The parties note that the inclusion of

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Instruction Nos. 34, 35, 36 and 37 are dependent upon the Court's ruling on pending Motions in Limine. Dated this 17th day of July, 2006. PAUL CHARLTON United States Attorney District of Arizona s/Sue A. Klein ________________________ SUE A. KLEIN Assistant U.S. Attorney Attorney for Plaintiff s/Sue A. Klein _______________________ JOHN A. WEIL Attorney for Defendants

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REQUESTED INSTRUCTION NO. 1 Duty of Jury Ladies and gentlemen: You now are the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial I will give you more detailed

instructions. Those instructions will control your deliberations. You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.

Manual of Model Civil Jury Instructions for the Ninth Circuit, § 1.1 (2001 Edition, ) West Publishing Co.) (hereinafter Ninth Circuit §

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REQUESTED INSTRUCTION NO 2 Claims and Defenses To help you follow the evidence, I will give you a brief summary of the positions of the parties: This is an eminent domain case. Plaintiff claims that defendants are entitled to just compensation for the 33.845 acres and 192.019 acres acquired in this case. The Defendants also claim that they should receive just compensation for the 33.845 acres and 192.019 acres acquired in this case. Defendants additionally claim that this determination of just compensation was influenced by the existence of the project for which the property was acquired. Plaintiff denies that the existence of the project influenced the just compensation to be awarded in this case. Plaintiff further claims that the

determination of just compensation cannot be influenced by speculative uses or business losses which are not compensable in eminent domain cases.

Ninth Circuit § 1.2

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REQUESTED INSTRUCTION NO. 3 What is Evidence The evidence you are to consider in deciding what the facts are consist of: (1) the sworn testimony of any witness; (2) the exhibits which are received into evidence; and (3) any facts to which the lawyers stipulate.

Ninth Circuit § 1.3

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REQUESTED INSTRUCTION NO. 4 What is Not Evidence The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case: (1) statements and arguments of the attorneys; (2) questions and objections of the attorneys; (3) testimony that I instruct you to disregard; (4) anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.

Ninth Circuit § 1.4

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REQUESTED INSTRUCTION NO. 5 Evidence for Limited Purposes Some evidence may be admitted for a limited purpose only. When I

instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.

Ninth Circuit § 1.5

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REQUESTED INSTRUCTION NO. 6 Direct and Circumstantial Evidence 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 proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. 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.

Ninth Circuit § 1.6

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REQUESTED INSTRUCTION NO. 7 Ruling on Objections There are rules of evidence which control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received. Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence which I told you to disregard.

Ninth Circuit § 1.7

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REQUESTED INSTRUCTION NO. 8 Credibility of Witnesses 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 opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness' memory; (3) the witness' manner while testifying; (4) the witness' interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness' testimony; (6) the reasonableness of the witness' testimony in light of all the evidence; and (7) 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. Ninth Circuit § 1.8

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REQUESTED INSTRUCTION NO. 9 Conduct of the Jury I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone

approaches you and tries to talk to you about the case please let me know about it immediately; Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it; Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigation about the case on your own; Fourth, if you need to communicate with me simply give a signed note to the clerk to give to me; and Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then. Ninth Circuit § 1.9 GIVEN REFUSED GIVEN AS MODIFIED

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REQUESTED INSTRUCTION NO. 10 No Transcript Available to Jury At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given.

Ninth Circuit § 1.10

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REQUESTED INSTRUCTION NO. 11 Taking Notes If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note-taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the courtroom. Whether or not you take 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 the notes.

Ninth Circuit § 1.11

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REQUESTED INSTRUCTION NO. 12 Outline of Trial The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement. The landowner will then present evidence, and counsel for the United States may cross-examine. Then the United States may present evidence and counsel for the landowner may cross-examine. After the evidence has been presented, the attorneys will make closing arguments and I will instruct you on the law that applies in this case. After that, you will go to the jury room to deliberate on your verdict.

Ninth Circuit § 1.12

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REQUESTED INSTRUCTION NO. 13 Joint Trial The parties have agreed to a joint trial of two cases: United States v. 33.845 Acres and United States v. 192.019 Acres. The properties were acquired on the same date for the same project and are owned by related entities and individuals. The witnesses for each case are the same and you may consider the evidence in both cases. At the end of the cases, however, you will be asked to render two separate verdicts - one for each case.

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REQUESTED INSTRUCTION NO. 14 Cautionary Instruction ­ First Recess We are about to take our first break during the trial, and I want to remind you of the instruction I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately. Do not read or listen to any news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors. If you need to speak with me about anything, simply give a signed note to the clerk to give to me. I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.

Ninth Circuit § 2.1

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REQUESTED INSTRUCTION NO. 15 Bench Conferences and Recesses From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error. We will, of course, do what we can to keep the number and length of these conferences to a minimum. I may not always grant an attorney's request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.

Ninth Circuit § 2.2

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REQUESTED INSTRUCTION NO. 16 Stipulations of Fact The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.

Ninth Circuit § 2.4

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REQUESTED INSTRUCTION NO. 17 Duties of Jury to Find Facts and Follow Law Members of the jury, now that you have heard all the evidence and the arguments of the attorneys, it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it necessary. It is your duty to find the facts from all the evidence in the case. To these facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case. In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should return ­ that is a matter entirely up to you.

Ninth Circuit § 3.1

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REQUESTED INSTRUCTION NO. 18 Use of Notes Some of you have taken notes during 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 the notes.

Ninth Circuit § 4.2

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REQUESTED INSTRUCTION NO. 19 Nature of Case This action by the United States of America is brought in the exercise of the federal government's power of eminent domain. It is sometimes called a

condemnation proceeding. The United States has the right and power under the Fifth Amendment of the Constitution to acquire private property for public uses. This power is essential to the independence and operation of government. Otherwise, any landowner could delay or even prevent public improvements or could effectively force payment of a price exceeding the fair market value of the property acquired. Exercise of the power of eminent domain is subject always to the requirement of the Fifth Amendment of the United States Constitution that payment of just compensation shall be made for all interests in property taken by the government. The Fifth Amendment provides that "private property [shall not] be taken for public use, without just compensation." The landowner is entitled to receive just compensation for the property acquired which is measured by the fair market value of the property on the date of taking. Federal Jury Practice and Instructions: Civil, §§ 154.01, 154.10, 154.30 (2001, 5th Edition, West Group) (hereinafter Jury Practice § ).

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REQUESTED INSTRUCTION NO. 20 Estate or Interest Used ­ Date of Valuation The estate acquired by the United States in this case is a fee interest or the total property rights, in 33.845 acres and the 192.019 acres for the expansion of the Yuma Marine Corps Air Station. The United States filed its Declaration of Taking, Complaint in Condemnation and Notice of Condemnation on October 16, 2003. You are called upon to find from the evidence before you, the just compensation for the property acquired as of October 16, 2003.

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REQUESTED INSTRUCTION NO. 21 What is Evidence The evidence from which you are to decide the facts are consists of: (1) the sworn testimony of any witness; (2) the exhibits which have been received into evidence; and (3) any facts to which the lawyers have agreed or stipulated.

Ninth Circuit § 3.2

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REQUESTED INSTRUCTION NO. 22 What is Not Evidence In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you: (1) Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they 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 form the way the lawyers have stated them, your memory of them controls. (2) Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objections or by the court's ruling on it. (3) Testimony that has been excluded or stricken or that you have been instructed to disregard is not evidence and must not be considered. [In addition, some testimony and exhibits have been received only for a limited purpose; where I have given a limiting instruction, you must follow it.] (4) 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. Ninth Circuit § 3.3 GIVEN REFUSED GIVEN AS MODIFIED

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REQUESTED INSTRUCTION NO. 23 Direct and Circumstantial Evidence Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. 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.

Ninth Circuit § 3.5

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REQUESTED INSTRUCTION NO. 24 Charts and Summaries in Evidence Certain charts and summaries have been received into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.

Ninth Circuit § 3.10

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REQUESTED INSTRUCTION NO. 25 Charts and Summaries Not Received in Evidence Certain charts and summaries that have not been received in evidence have been shown to you in order to help explain the contents of books, records, documents or other evidence in the case. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence.

Ninth Circuit § 3.9

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REQUESTED INSTRUCTION NO. 26 Burden of Proof ­ Preponderance of the Evidence In a condemnation case, the burden is on defendant-landowner to establish by a preponderance of the evidence the fair market value of defendant-landowner's estate or interest in the property on the date of taking by the United States government. To "establish by a preponderance of the evidence" means to prove that something is more probably true than not. You should base your decision on all the evidence, regardless of who presented it.

United States v. 174.12 Acres of Land, 671 F.2d 313, 314 (9th Cir. 1982).

Ninth Circuit §5.1

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REQUESTED INSTRUCTION NO. 27 Credibility of Witnesses

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 opportunity and ability of the witness to see or hear or know the things testified to; (2) the witness' memory; (3) the witness' manner while testifying; (4) the witness' interest in the outcome of the case and any bias or prejudice; (5) whether other evidence contradicted the witness' testimony; (6) the reasonableness of the witness' testimony in light of all the evidence; and (7) 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.

Ninth Circuit § 3.6

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REQUESTED INSTRUCTION NO. 28 Opinion Evidence, Expert Witnesses You have heard testimony from persons who, because of education or experience, are permitted to state opinions and the reasons for their opinions. Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness' education and experience, the reasons given for the opinion, and all the other evidence in the case.

Ninth Circuit § 3.7

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REQUESTED INSTRUCTION NO. 29 Fair Market Value ­ How Determined "Fair market value" means the price in cash, or its equivalent, that the property would have brought at the time of taking, considering its highest and most profitable use, if then offered for sale in the open market with a reasonable time allowed to find a purchaser. In other words, "fair market value" means the amount a willing buyer would have paid a willing seller in an arms-length transaction with both parties being fully informed concerning all of the advantages and disadvantages of the property, and with neither acting under any compulsion to buy or sell. In arriving at your determination of fair market value, you should take into account all factors which could fairly be suggested by the seller to increase the price paid, and all counter-arguments which the buyer could fairly make to reduce the price. Your determination is to be made in the light of the opinions of the various witnesses and all facts affecting value, as shown by the evidence in this case. Federal Jury Practice and Instructions: Civil, § 154.31 (5th ed.).

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REQUESTED INSTRUCTION NO. 30

Factors Jury may Consider in Determining Fair Market Value In determining the fair market value of property, you may consider not only the opinions of the various witnesses who testified as to the market value, but also all other evidence in the case that may aid in determining market value. Such evidence includes the location of the property, the surroundings and general environment, any peculiar suitability of the property for particular uses, and the reasonable probabilities as to future potential uses, if any, for which the property was suitable or physically adaptable, all as shown by the evidence in the case to have existed at the time of the taking. Determination of the fair market value of an estate or interest in land, at a given date, is necessarily based upon assumption rather than fact. In order to establish proof of market value, it is not necessary to point out any particular person who was ready, willing and able, at the time of the taking, to purchase the property at any particular price. However, you should not consider, as a factor affecting market value, anything which depends on events or combinations of occurrences which, while within the realm of possibility are not shown to be reasonably probable. Such matters should be excluded form your consideration, otherwise mere speculation and conjecture would become a guide for the ascertainment of value. Federal Jury Practice and Instructions: Civil, § 154.51, 154.52 (2001 5th edition, 2001) United States v. 174.12 Acres of Land, 671 F.2d 313, 315 (9th Cir. 1982) Olson v. United States, 292 U.S. 246, 257 (1934) United States v. 62.50 Acres of Land, 953 F.2d 886, 890 (5th Cir. 1992)

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REQUESTED INSTRUCTION NO. 31

Owner's Opinion as to Fair Market Value The law permits an owner of property taken in a condemnation proceeding to testify as to the fair market value, not the personal value of the property taken, of the owner's estate or interest in the property at the time of taking. The

testimony of the defendant-owner as to value is to be weighed and considered by you the same as that of any other witness expressing an opinion as to fair market value at the time of the taking. If you should decide that the reasons given in support of the defendant-owner's opinion as to fair market value are not sound, you may reject that opinion or you may give it any weight you may think it deserves.
Federal Jury Practice and Instructions: Civil, § 154.58 (2001 5th Edition) United States v. Sowards, 370 F.2d 87, 92 (10th Cir. 1966) United States v. 3,698.63 Acres of Land, 416 F.2d 65, 67 (8th Cir. 1969) United States v. 341.45 Acres of Land, 633 F.2d 108, 110 (8th Cir. 1980)

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REQUESTED INSTRUCTION NO. 32

Need for Property not Considered in Determining Fair Market Value In determining the fair market value of the property taken, you may not consider the government's need for the property, or whether or not the defendantowner wanted to sell it. Your task is to find what was the fair market value of the tracts involved in this trial, as of the time of the taking, uninfluenced in any way by either the necessities of the government, or the wishes or wants or desires of the defendant-owner.

Federal Jury Practice and Instructions: Civil, § 154.54 (5th ed.)

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REQUESTED INSTRUCTION NO. 33

Evidence as to Sales of Comparable Properties Evidence has been received as to sales of allegedly comparable properties in the vicinity, and in other areas. Bona fide sales of comparable properties, at or near the date of taking, involved may be the best obtainable evidence of market value at the time of taking. Such evidence should be considered to the extent that you find it of assistance in arriving at your own finding as to market value.

Federal Jury Practice and Instructions; Civil, § 154.61 (2001 5th Edition, West Group)

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REQUESTED INSTRUCTION NO. 34 Project Influence Evidence has been presented indicating that the existence of the project for which this property was acquired may have influenced the fair market value of the property. You are instructed that the United States cannot be charged in federal land acquisitions for values it created in constructing the project, nor can a landowner be penalized for any diminution in value attributable to the project. Accordingly, any increase or decrease in the market value of the property, prior to the date of value, caused by the project must be disregarded.

United States v. Miller, 317 U.S. 369, 376-379 (1943) United States v. Reynolds, 397 U.S. 14, 16-18 (1970)

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REQUESTED INSTRUCTION NO. 35 Pre-Condemnation and Consequential Losses You are instructed that no consideration shall be given to, nor allowance of compensation made for either (1) any unwillingness of the landowner to part with his land, or (2) any frustration of the personal plans of the landowners, or (3) any opportunities the landowner may have lost by reason of the taking of the property. The United States must pay only for what it takes, not for opportunities which the owner may lose.

United States v. Petty Motor Co., 327 U.S. 372, 377-378 (1946) United States v. General Motor Corp., 323 U.S. 373, 379-380 (1945) United States v. 50 Acres of Land, 469 U.S. 24, 33 (1984) United States ex rel. TVA v. Powelson, 319 U.S. 266, 281-282 (1943)

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REQUESTED INSTRUCTION NO. 36 Offers to Purchase Evidence has also been received as to offers to purchase the subject properties. Such offers should not be considered in establishing the value of the subject property. At most, offers to purchase are indirect evidence of the opinion of the person making the offer as to the value of the land. The person offering the price may have so slight a knowledge on the subject that his opinion has no value, or the person offering the price may have wanted the land for some particular purpose disconnected to its value. Pure speculation may have induced the offer, or a willingness to take chances. Oral and not binding offers are so easily made and refused in a mere passing conversation, and under circumstances involving no responsibility on either side.

Sharp v. United States, 191 U.S. 341, 348-349 (1903)

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REQUESTED INSTRUCTION NO. 37 Price Paid for Similar Property The price paid by the United States for similar property in settlement of condemnation proceedings or in anticipation of such proceedings is not to be considered in establishing the value of comparable land, as such payments are in the nature of compromise to avoid the expense and uncertainty of litigation and are not fair indications of market value. United States v. 10.48 Acres of Land, 621 F.2d 338, 339 (9th Cir. 1980) Slattery Company v. United States, 231 F.2d 37, 41 (5th Cir. 1956)

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REQUESTED INSTRUCTION NO. 38 Compensation Fixed Must be Just The compensation to be paid by the United States government for an estate or interest in property must be just. In order to be just, the amount of the compensation must be fair, not only to the property owner whose property is taken, but also to the public who must pay for it. If the amount of your verdict is less than the amount you believe to be defendant landowner's loss, based upon the fair market value of the property taken at the time of the taking, then the compensation is not just to the defendantlandowner. If it is more than that amount, then the compensation is not just to the United States.

Federal Jury Practice and Instructions: Civil, § 154.66 (2001 5th Edition, West Group)

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REQUESTED JURY INSTRUCTION NO. 39 Multiple Defendants You may notice that multiple defendants are listed in both cases to include individuals, trusts, lending institutions, taxing authorities and various

governmental districts, and there are multiple owners having an interest in each of the properties. Corporations, limited liability companies, trusts and other legal entitles are entitled to the same fair and impartial consideration given to individuals and to justice reached by the same legal standards. The owners have agreed to a division of any just compensation you award in this case, and that Glen G. Curtis should represent all of their interests in this case. It is your duty to render a verdict for the entire fee interest in the property without regard to how the just compensation is to be divided among the multiple owners. I will resolve any issue that may arise regarding the division of the just compensation.

GIVEN ____________ REFUSED _________ GIVEN AS MODIFIED _________

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REQUESTED INSTRUCTION NO. 40 Interest Not to be Included in Jury's Award The law requires, and the judgment to be entered by the court upon your verdict will provide, payment of interest by the government to compensate the defendant landowners for any delay in payment caused by the government after the date of taking. You are not to consider any delay in payment in arriving at your verdict. Your are not to include in your verdict any interest or other compensation for the delay.

Federal Jury Practice and Instructions: Civil, § 154.67 (2001 5th Edition, West Group)

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REQUESTED INSTRUCTION NO. 41 Communication with Court If it becomes necessary during your deliberations to communicate with me, you may send a note through the clerk, signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to

communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case only in writing, or here in open court. If you send out a question, I will consult with the parties 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, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.

Ninth Circuit § 4.3

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REQUESTED INSTRUCTION NO. 42 Duty to Deliberate When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person 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 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 and 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. 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.

Ninth Circuit § 4.1

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REQUESTED INSTRUCTION NO. 43 Return of Verdict Verdict forms have been prepared for you. After you have reached a unanimous agreement on a verdict in each case, your presiding juror will fill in the forms that have been given to you, sign and date them, and advise the court that you are ready to return to the courtroom.

Ninth Circuit § 4.4

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Pursuant to Paragraph II(C)(3), District of Arizona ECF Administrative Policies and Procedures Manual (April 3, 2006), both parties certify that the Requested Instructions to the Jury are acceptable to all registered signatories required to sign it. DATED this 17th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/Sue A. Klein ______________________________ SUE A. KLEIN Assistant U. S. Attorney Attorney for Plaintiff s/Sue A. Klein ______________________________ JOHN A. WEIL Attorney for Defendants

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