The defendant is charged in [Count _______ of] the indictment with possession of [specify controlled substance] with intent to distribute in violation of Section 841(a)(1) of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly possessed any controlled substance; and 

            Second, the defendant possessed it with the intent to distribute it to another person. 

            [The government is not required to prove the amount or quantity of [specify controlled substance].  It need only prove beyond a reasonable doubt that there was a measurable or detectable amount of [specify controlled substance].] 

            It does not matter whether the defendant knew that the substance was [specify controlled substance].  It is sufficient that the defendant knew that it was some kind of a federally controlled substance. 

            To “possess with intent to distribute” means to possess with intent to deliver or transfer possession of [specify controlled substance] to another person, with or without any financial interest in the transaction. 

Comment 

            See Comment to Instruction 12.4 (Controlled Substance—Distribution or Manufacture), if death or serious bodily injury occurred. 

            Use the bracketed paragraph only when quantity is not at issue. 

            The defendant does not need to know what the controlled substance is so long as the defendant knows that he or she has possession of such a substance.  United States v. Jewell, 532 F.2d 697, 698 (9th Cir. 1976) (en banc).  See also United States v. Soto-Zuniga, 837 F.3d 992, 1004-05 (9th Cir. 2016) (knowledge of type and quantity of drugs not element of offense). 

            After Apprendi v. New Jersey, 530 U.S. 466 (2000), the Ninth Circuit has held that where the amount of drugs “increases the prescribed statutory maximum penalty to which a criminal defendant is exposed,” the amount of drugs must be decided by a jury beyond a reasonable doubt.  See United States v. Garcia-Guizar, 234 F.3d 483, 488 (9th Cir. 2000).  However, the government need not prove that the defendant knew the type or quantity of controlled substance he possessed to obtain either a conviction under § 841(a) or a particular sentence under § 841(b).  It is sufficient that the jury finds beyond a reasonable doubt that the defendant actually possessed a certain type and quantity of drugs.  United States v. Jefferson, 791 F.3d 1013, 1015 (9th Cir. 2015) (holding in context of parallel statute, 21 U.S.C. § 960, that government is not required to prove defendant’s knowledge of type or quantity of drugs either for conviction or for heightened statutory penalties to apply).  As a result, if applicable, the court should obtain a jury determination of the amount of drugs involved.  See also United States v. Booker, 543 U.S. 220 (2005); United States v. Ameline,409 F.3d 1073 (9th Cir. 2005) (en banc).  When it is necessary to determine an amount of controlled substance, use this instruction with Instruction 12.2 (Determining Amount of Controlled Substance), together with a verdict form similar to the example provided in the Comment to Instruction 12.5.  But see United States v. Hunt, 656 F.3d 906 (9th Cir. 2011) (discussing effect on sentencing of knowledge of type of drug in attempted possession with intent to distribute case). 

            The defendant may be entitled to a jury instruction on a lesser included offense of simple possession, 21 U.S.C. § 844(a).  See Instruction 6.15.  See also United States v. Hernandez, 476 F.3d 791, 798-800 (9th Cir. 2007). 

            Possession of a controlled substance with intent to distribute requires the jury to find that the defendant (1) knowingly possessed drugs and (2) possessed them with the intent to deliver them to another person.  See, for example, United States v. Orduno-Aguilera, 183 F.3d 1138, 1140 (9th Cir. 1999); United States v. Seley, 957 F.2d 717, 721 (9th Cir. 1992).  See also United States v. Magallon-Jimenez, 219 F.3d 1109, 1112 (9th Cir. 2000). 

            Regarding cases involving a “controlled substance analogue” as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 576 U.S. 186 (2015), that, to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or “that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.”  Id. at 194-95.  With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’”United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)). 

Revised September 2024

            If you find the defendant guilty of the charge in [Count _______ of] the indictment, you are then to determine whether the government proved beyond a reasonable doubt that the amount of [specify controlled substance] that defendant intended to distribute equaled or exceeded [certain weights] [insert specific threshold weight].  Your determination of weight must not include the weight of any packaging material. Your decision as to weight must be unanimous. 

            The government does not have to prove that the defendant knew the quantity of [specify controlled substance]. 

Comment 

            When a drug conspiracy is charged, the jury may infer the agreed upon drug amount based on the conduct of the conspirators but may not speculate as to the amount.  See United States v. Narvarrette-Aguilar, 813 F.3d 785, 794 (9th Cir. 2015) (“Express agreement is not required; rather, agreement may be inferred from conduct.”). 

            While quantity and drug type are not elements of controlled substance offenses, a jury must determine those facts before a sentencing enhancement based upon drug type or quantity can be applied.  The Ninth Circuit has held, however, that the government need not prove that a defendant knew either the controlled substance type or quantity for the enhancement to apply.  United States v. Collazo, 984 F.3d 1308, 1329 (9th Cir. 2021) (en banc).  If the charged controlled substances are not in evidence, the court should only allow the jury to use comparison drugs that are from the defendant’s activity or a conspiracy in which the defendant was involved.  United States v. Lemus, 847 F.3d 1016, 1022-23 (9th Cir. 2016) (stating that purity of controlled substances not connected to defendant could not be used to estimate purity of defendant’s drugs). 

            When it is necessary to determine the amount of a controlled substance, use this instruction with Instruction 12.1 (Controlled Substance–Possession with Intent to Distribute).  The court may also consider submitting a special verdict form to the jury.  For an example of such a form, see the Comment to Instruction 12.5 (Controlled Substance—Conspiracy to Distribute or Manufacture).  

Revised June 2022

           The defendant is charged in [Count _______ of] the indictment with attempted possession of [specify controlled substance] with intent to distribute in violation of Sections 841(a)(1) and 846 of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant intended to possess any controlled substance with the intent to distribute it to another person; and 

            Second, the defendant did something that was a substantial step toward committing the crime.  

           A “substantial step” is conduct that strongly corroborates a defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward committing the crime.

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  

            To “possess with the intent to distribute” means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction. 

Comment 

            See Comment to Instructions 12.1 (Controlled Substance–Possession with Intent to Distribute) and 12.2 (Determining Amount of Controlled Substance).  See United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006) (citing United States v. Davis, 960 F.2d 820, 826-27 (9th Cir. 1992)); United States v. Esquivel-Ortega, 484 F.3d 1221, 1228 (9th Cir. 2007) (citing to United States v. Estrada-Macias, 218 F.3d 1064, 1066 (9th Cir. 2000) (jury instruction requiring government to prove that defendants knowingly associated themselves with crime and were not mere spectators)). 

            The Ninth Circuit has stated, in a case in which the defendant pleaded guilty to attempted possession of a controlled substance with the intent to distribute, in violation of § 841(a), and the government sought a sentence under the heightened penalty provisions of § 841(b) based on type and quantity, that the government was required to prove the defendant’s intent to possess a particular controlled substance.  United States v. Hunt, 656 F.3d 906, 912-13 (9th Cir. 2011).  By contrast, in a case in which the defendant pleaded guilty to actual importation of a controlled substance in violation of § 960(a) (an analogous statute), the Ninth Circuit held that “the government need not prove that the defendant knew the precise type or quantity of the drug he imported” for the heightened penalties based on drug type and quantity to apply.  United States v. Jefferson, 791 F.3d 1013, 1014-15, 1019 (9th Cir. 2015); see also United States v. Carranza, 289 F.3d 634, 644 (9th Cir. 2002) (“A defendant charged with importing or possessing a drug is not required to know the type and amount of drug.”).  The Committee believes that there may be tension between Hunt and Jefferson on the issue of a defendant’s knowledge or intent regarding drug type and quantity.  At least one district judge has limited the holding in Hunt to attempt crimes.  See United States v. Rivera, No. 10-cr-3310-BTM, 2014 WL 3896041, at *2 (S.D. Cal., Aug. 7, 2014). 

            Regarding cases involving a “controlled substance analogue” as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 576 U.S. 186 (2015), that, to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or “that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.”  Id. at 194-95. With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’” United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)). 

            “To constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (internal quotations omitted).  

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same). 

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010). 

            “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.”  United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003). 

Revised March 2024

              The defendant is charged in [Count _______ of] the indictment with [distribution] [manufacture] of [specify controlled substance] in violation of Section 841(a)(1) of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant knowingly [[distributed] [manufactured]] [specify controlled substance]; and

            Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance.

            [“Distributing” means delivering or transferring possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.]

            [The government is not required to prove the amount or quantity of [specify controlled substance].  It need only prove beyond a reasonable doubt that there was a measurable or detectable amount of [specify controlled substance].]

[If you find that the defendant is guilty of [[distributing] [manufacturing]] [specify controlled substance], then you must determine whether [name of decedent]’s [[death] [serious bodily injury]] was a result of the use of the [specify controlled substance] [[distributed] [manufactured]] by the defendant. To find that the use of a drug resulted in [[death] [serious bodily injury]], you must unanimously and beyond a reasonable doubt find that “but for” the use of the [specify controlled substance] that the defendant [[distributed] [manufactured]], [name of decedent] would not have died. 

To find a particular controlled substance [[distributed] [manufactured]] by the defendant was a “but for” cause of death, you must find beyond a reasonable doubt that, but for the decedent’s use of the [specify controlled substance], the decedent would not have died. 

The government does not have the burden of establishing that the defendant intended that death result from the use of [specify controlled substance]. Nor does the government have the burden of establishing that the defendant knew, or should have known, that death would result from the use of the [specify controlled substance] that the defendant [[distributed] [manufactured]].

Comment

            See Comment to Instructions 12.1 (Controlled Substance–Possession with Intent to Distribute) and 12.2 (Determining Amount of Controlled Substance).

            A similar instruction was explicitly approved in United States v. Houston, 406 F.3d 1121, 1122 n.2 (9th Cir. 2005) (“In order for the defendant to be found guilty of this charge, the government must prove each of the following elements beyond a reasonable doubt: First, the

defendant knowingly delivered methadone to Trina Bradford. Second, the defendant knew it was methadone or some other prohibited drug.”).

           Although the government must prove that death or serious bodily injury resulted from the use of the controlled substance for this enhancement to apply, the government need not prove that the death was a foreseeable result of the distribution of the controlled substance.  Houston, 406 F.3d at 1125 (“Cause-in-fact is required by the ‘results’ language, but proximate cause, at least insofar as it requires that the death have been foreseeable, is not a required element.”).

            “[W]hen Congress made it a crime to ‘knowingly . . . possess with intent to manufacture, distribute, or dispense, a controlled substance . . . , it meant to punish not only those who know they possess a controlled substance, but also those who don’t know because they don’t want to know.”  United States v. Heredia, 483 F.3d 913, 918 (9th Cir. 2007) (en banc).  See also Instruction 4.9 (Deliberate Ignorance).

            Regarding cases involving a “controlled substance analogue” as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 576 U.S. 186 (2015), that, to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or “that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.”  Id. at 194-95.  With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’” United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)).

It is also unlawful under 21 U.S.C. § 841(a)(1) to dispense or possess with intent to dispense a controlled substance.  If that crime is charged, the instruction should be modified accordingly. 

In prosecutions involving a physician charged with distributing controlled substances not “as authorized,” if the defendant produces evidence that his or her conduct was “authorized,” the government must prove beyond a reasonable doubt that the defendant knowingly or intentionally acted in an unauthorized manner. Ruan v. United States, 597 U.S. 450, 457 (2022); see also United States v. Pham, 120 F.4th 1368, 1370-71 (9th Cir. 2024) (providing that a defendant’s “admission that he prescribed controlled substances with intent to act outside the usual course of professional practice and without a legitimate medical purpose” was an admission to the “requisite knowledge of the elements that made his prescriptions not authorized”). 

The last four paragraphs of the instruction may be used where the government is seeking a sentencing enhancement “if death or serious bodily injury results from the use of such [controlled] substance[s].” 21 U.S.C. § 841(b)(1)(A)-(D). Several of the penalty sections for a violation of 21 U.S.C. §§ 841(a)(1), 846, 859, 860, and/or 861(a)(1) increase the sentence “if death or serious bodily injury results from the use of such [controlled] substance[s].”  21 U.S.C. § 841(b)(1)(A)-(C). “Because the ‘death results’ enhancement increased the minimum and maximum sentences to which [the defendant] was exposed, it is an element that must be submitted to the jury and found beyond a reasonable doubt.” Burrage v. United States, 571 U.S. 204, 210 (2014). “[A] phrase such as ‘results from’ imposes a requirement of but-for causation.” Id. at 214. In Burrage, the Supreme Court declined to accept or reject a special rule allowing the government to satisfy the causation requirement by showing that use of the controlled substance was an independently sufficient cause of death or bodily injury. Id. at 214-15; See Id. at 218-19 (“We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U. S. C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.”). And although the government must prove that death or serious bodily injury resulted from the use of the controlled substance for this enhancement to apply, the government need not prove that the death was a foreseeable result of the distribution of the controlled substance. Houston, 406 F.3d at 1125 (“Cause-in-fact is required by the ‘results’ language, but proximate cause, at least insofar as it requires that the death have been foreseeable, is not a required element.”). 

See Comment to Instruction 12.21 (Controlled Substance—Statutory Enhancement Based on Prior Serious Drug Felony or Serious Violent Felony). 

Revised March 2025

           The defendant is charged in [Count _____ of] the indictment with conspiracy to [[distribute] [manufacture]] [specify controlled substance] in violation of Section 841(a) and Section 846 of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, beginning on or about [date] and ending on or about [date], there was an agreement between two or more persons to [[distribute] [manufacture]] [specify controlled substance]; and  

            Second, the defendant joined in the agreement knowing of its purpose and intending to help accomplish that purpose. 

            [“To distribute” means to deliver or transfer possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.] 

            A conspiracy is a kind of criminal partnership—an agreement of two or more persons to commit one or more crimes.  The crime of conspiracy is the agreement to do something unlawful; it does not matter whether the crime agreed upon was committed. 

            For a conspiracy to have existed, it is not necessary that the conspirators made a formal agreement or that they agreed on every detail of the conspiracy.  It is not enough, however, that they simply met, discussed matters of common interest, acted in similar ways, or perhaps helped one another.  You must find that there was a plan to commit at least one of the crimes alleged in the indictment as an object or purpose of the conspiracy with all of you agreeing as to the particular crime which the conspirators agreed to commit. 

            One becomes a member of a conspiracy by knowingly participating in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy, even though the person does not have full knowledge of all the details of the conspiracy.  Furthermore, one who knowingly joins an existing conspiracy is as responsible for it as the originators.  On the other hand, one who has no knowledge of a conspiracy, but happens to act in a way which furthers some object or purpose of the conspiracy, does not thereby become a conspirator.  Similarly, a person does not become a conspirator merely by associating with one or more persons who are conspirators, nor merely by knowing that a conspiracy exists. 

Comment 

            This instruction is for use with Instructions 12.1, 12.2, 12.4, 12.8, 12.10, and 12.12. Instruction 4.8 (Knowingly).

            Concerning the elements of the crime, see, e.g., United States v. Jaimez, 45 F.4th 1118, 1123 (9th Cir. 2022); United States v. Collazo, 984 F.3d 1308, 1319 (9th Cir. 2021) (en banc); United States v. Garrison, 888 F.3d 1057, 1064-65 (9th Cir. 2018); United States v. Reed, 575 F.3d 900, 923 (9th Cir. 2009). 

            To prove an agreement to commit a crime, it is not sufficient for the government to prove that the defendant committed the crime in question.  It must prove that the defendant agreed with at least one other person to commit that crime.  United States v. Loveland, 825 F.3d 555, 557 (9th Cir. 2016). 

            See United States v. Shabani,513 U.S. 10, 15-16 (1994), holding that to establish a violation of 21 U.S.C. § 846, the government is not required to prove commission of overt acts in furtherance of the conspiracy.  The Court contrasted § 846, which is silent as to whether there must be an overt act, with the general conspiracy statute, 18 U.S.C. § 371, which contains the explicit requirement that a conspirator “do any act to effect the object of the conspiracy.”  Id. at 14. 

            Regarding cases involving a “controlled substance analogue” as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 576 U.S. 186 (2015), that, to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or “that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.”  Id. at 194-95.  With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’” United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)). 

When the prosecution relies on circumstantial evidence to establish an agreement to distribute drugs, “what we are looking for is evidence of a prolonged and actively pursued course of sales and . . . knowledge of and shared stake in the . . . drug operation.”  United States v. Mendoza, 25 F.4th 730, 736 (9th Cir. 2022).  See generally id. at 735-741 for analysis of evidence that would or would not meet this threshold.  See Comment to Instruction 12.6.

            When it is necessary to determine the amount of a controlled substance, the court might consider submitting the following special verdict form to the jury:  

SUGGESTED VERDICT FORM

            WE, THE JURY, FIND THE DEFENDANT, [name of defendant], AS FOLLOWS:

AS TO COUNT [insert count number] OF THE INDICTMENT:

SPECIAL VERDICTS 

DATE                                                 FOREPERSON

Revised June 2024

        A buyer-seller relationship between a defendant and another person, standing alone, cannot support a conviction for conspiracy.  The fact that a defendant may have bought [specify controlled substance] from another person or sold [specify controlled substance] to another person is not sufficient without more to establish that the defendant was a member of the charged conspiracy.  Instead, a conviction for conspiracy requires proof of an agreement to commit a crime beyond that of the mere sale. 

            In considering whether the evidence supports the existence of a conspiracy or the existence of a buyer-seller relationship, you should consider all the evidence, including the following factors: 

[(1)      whether the sales were made on credit or consignment;]

[(2)      the frequency of the sales;]

[(3)      the quantity of the sales;]

[(4)      the level of trust demonstrated between the buyer and the seller, including the use of codes;]

[(5)      the length of time during which the sales were ongoing;]

[(6)      whether the transactions were standardized;]

[(7)      whether the parties advised each other on the conduct of the other's business;]

[(8)      whether the buyer assisted the seller by looking for other customers;]

[(9)      whether the parties agreed to warn each other of potential threats from competitors or law enforcement;] and

[(10)    whether the buyer was free to shop elsewhere.]

            These are merely a list of relevant factors to aid you in analyzing the evidence; the presence or absence of any single factor is not determinative. 

Comment 

            Use this instruction with Instruction 12.5 (Controlled Substance—Conspiracy to Distribute or Manufacture) if applicable. 

            See United States v. Moe, 781 F.3d 1120, 1128 (9th Cir. 2015) (explaining that no buyer-seller instruction is required when jury instructions as whole accurately inform jury that conspiracy cannot be found based solely on sale of drugs from one party to another.  However, buyer-seller instruction might assist jury in working through fact-intensive determinations and, in certain circumstances, buyer-seller instruction might be required); see also United States v. Mendoza, 25 F.4th 730, 742 (9th Cir. 2022) (declining to address whether sua sponte instruction on “buyer-seller rule” was required).  

            “To show a conspiracy, the government must show not only that [the seller] gave drugs to other people knowing that they would further distribute them, but also that he had an agreement with these individuals to so further distribute the drugs.”  United States v. Lennick, 18 F.3d 814, 819 (9th Cir. 1994).  

            “A relationship of mere seller and buyer, with the seller having no stake in what the buyer does with the goods, shows the absence of a conspiracy, because it is missing the element of an agreement for redistribution.”  United States v. Loveland, 825 F.3d 555, 562 (9th Cir. 2016).  Evidence showing that the seller probably knew the buyer was reselling the drugs based on the quantities and repeated sales between the two is insufficient by itself to establish an agreement for redistribution.  See id. 

When the prosecution relies on circumstantial evidence to establish an agreement to distribute drugs, “what we are looking for is evidence of a prolonged and actively pursued course of sales and . . . knowledge of and shared stake in the . . . drug operation.”  Mendoza, 25 F.4th at 736.  “If we instead see only ‘a casual sale [or purchase] of drugs, of a quantity consistent with personal use on the part of the buyer, with no evidence of any subsequent (or planned) redistribution of purchased drugs,’ the evidence is generally insufficient to support a conspiracy conviction.”  Id.  The “entire course of dealing” should be considered.  Id. at 739.  A relatively small number of communications and drug purchases over a course of dealing between buyer and seller does not support a finding of an agreement.  Id. at 739-740.  A “buyer-seller relationship (as opposed to conspiracy) is particularly likely when . . . the downstream buyer called the upstream seller (rather than vice versa) and when the downstream buyer was ‘free to shop elsewhere.’”  Id. at 739 (quoting Loveland, 825 F.3d at 563)).  A conspiracy was less likely when the buyer “had to pester” the seller for drugs and “threaten[ed] to purchase drugs from someone else” and “haggled over price and quantity.”  Id.

            The list of factors provided in this instruction is neither necessarily required nor meant to be exhaustive.  See Moe, 781 F.3dat 1125-26.  The list of factors presented to the jury should be tailored to fit the facts of the case.  

Revised June 2022

            The defendant is charged in [Count _______ of] the indictment with attempted [distribution] [manufacture] of [specify controlled substance] in violation of Sections 841(a)(1) and 846 of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant intended to [distribute [specify controlled substance] to another person] [manufacture [specify controlled substance]];

            Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance; and

            Third, the defendant did something that was a substantial step toward committing the crime. 

           A “substantial step” is conduct that strongly corroborates a defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward the commission of the crime of [distribution] [manufacture] of [specify controlled substance].

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.

            [“To distribute” means to deliver or transfer possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.]

Comment

            See Comment to Instructions 12.1 (Controlled Substance–Possession with Intent to Distribute), 12.2 (Determining Amount of Controlled Substance), and 12.4 (Controlled Substance–Distribution or Manufacture).

            Regarding cases involving a “controlled substance analogue” as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 576 U.S. 186 (2015), that, to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or “that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.”  Id. at 194-95.  With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’” United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)).

           “To constitute a substantial step, a defendant’s ‘actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances’.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)).

             The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).

            “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.”  United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).

Revised March 2024

            The defendant is charged in [Count _______ of] the indictment with distribution of [specify controlled substance] to a person under the age of 21 years in violation of Section 841(a)(1) and 859 of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant knowingly distributed [specify controlled substance] to [name of underage person];

            Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance;

            Third, the defendant was at least eighteen years of age; and

            Fourth, [name of underage person] was under twenty-one years of age.

            “Distribution” means delivery or transfer of possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.

Comment

            See Comment to Instruction 12.1 (Controlled Substance—Possession with Intent to Distribute).  See also Instruction 12.2 (Determining Amount of Controlled Substance).

            Knowledge by the defendant that the person to whom the controlled substance is distributed is under twenty-one years of age is not an essential element.  United States v. Valencia-Roldan, 893 F.2d 1080, 1083 (9th Cir. 1990).

            The government is required to establish beyond a reasonable doubt that the defendant: (1) “knowingly and intentionally” (2) distributed (3) a controlled substance (4) while the defendant was over the age of 18 and (5) the victim was under the age of twenty-one.  United States v. Durham, 464 F.3d 976, 980-81 (9th Cir. 2006).

            Regarding cases involving a “controlled substance analogue” as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 576 U.S. 186 (2015), that, to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or “that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.”  Id. at 194-95.  With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’” United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)). 

Revised March 2024

             The defendant is charged in [Count _______ of] the indictment with attempted distribution of [specify controlled substance] to a person under the age of twenty-one years in violation of Sections 841(a)(1), 846, and 859 of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant intended to distribute [specify controlled substance] to [name of underage person];

            Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance;

            Third, the defendant was at least eighteen years of age;

            Fourth, [name of underage person] was under the age of twenty-one years; and

            Fifth, the defendant did something that was a substantial step toward committing the crime.

            A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward the commission of the crime of distribution of [specify controlled substance] to a person under the age of twenty-one years.

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. 

            “Distribution” means delivery or transfer of possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.

Comment

            See Comment to Instructions 12.1 (Controlled Substance–Possession with Intent to Distribute), 12.2 (Determining Amount of Controlled Substance), and 12.8 (Controlled Substance–Distribution to Person Under 21 Years).

            Regarding cases involving a “controlled substance analogue” as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 576 U.S. 186 (2015), that, to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or “that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.”  Id. at 194-95.  With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’” United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)).

            “To constitute a substantial step, a defendant’s ‘actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances’.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)). 

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).

            “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.”  United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).

Revised March 2024 

            The defendant is charged in [Count _______ of] the indictment with distribution of [specify controlled substance] in, on or within 1,000 feet of the [schoolyard] [campus] of a [school] [college] [university] in violation of Sections 841(a)(1) and 860 of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant knowingly distributed [specify controlled substance] to another person;

            Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance; and

            Third, the distribution took place in, on or within 1,000 feet of the [schoolyard] [campus] of [name of school].

            “Distribution” means delivery or transfer of possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.

Comment

            See Comment to Instructions 12.1 (Controlled Substance—Possession with Intent to Distribute) and 12.2 (Determining Amount of Controlled Substance).

            The defendant’s specific knowledge of the proximity of a school is not an element of the offense.  United States v. Pitts,908 F.2d 458, 461 (9th Cir. 1990).  Distance is measured by a straight line.  United States v. Watson, 887 F.2d 980, 981 (9th Cir. 1989).

            Section 860 applies not only to schools, but also to playgrounds and public housing facilities.  In addition, it applies to youth centers, public swimming pools and video arcades; as to these locations, the distribution must have occurred within a 100-foot radius (as opposed to a 1,000-foot radius).  The instruction should be revised as necessary to match the facts of the case.

            Regarding cases involving a “controlled substance analogue” as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 576 U.S. 186 (2015), that, to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or “that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.”  Id. at 194-95.  With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’” United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)).

Revised March 2024

            The defendant is charged in [Count _______ of] the indictment with attempted distribution of [specify controlled substance] within 1,000 feet of the [schoolyard] [campus] of a [school] [college] [university] in violation of Sections 841(a)(1), 846 and 860 of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant intended to distribute [specify controlled substance] to another person in, on, or within 1,000 feet of the [schoolyard] [campus] of [name of school];

            Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance; and

            Third, the defendant did something that was a substantial step toward committing the crime. 

            A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward the commission of the crime of distribution of [specify controlled substance] in or near a school.

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. 

            “Distribution” means delivery or transfer of possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.

Comment

            See Comment to Instructions 12.1 (Controlled Substance—Possession with Intent to Distribute), 12.2 (Determining Amount of Controlled Substance), and 12.10 (Controlled Substance–Distribution in or Near a School).

            Regarding cases involving a “controlled substance analogue” as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 576 U.S. 186 (2015), that, to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or “that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.”  Id. at 194-95.  With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’” United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)).

            “To constitute a substantial step, a defendant’s ‘actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances’.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)). 

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).

            “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.”  United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).

Revised March 2024

            The defendant is charged in [Count _______ of] the indictment with [hiring] [using] [employing] [persuading] [inducing] [enticing] [coercing] a minor to [specify drug law violation] in violation of Sections 841(a)(1) and 861(a)(1) of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant knowingly [[hired] [used] [persuaded] [coerced] [induced] [enticed] [employed]] [name of minor] to [specify drug law violation and controlled substance];

            Second, the defendant was at least eighteen years of age; and

            Third, [name of minor] was under the age of eighteen years.

            The government is not required to prove that the defendant knew the age of [name of minor].

Comment

            The defendant’s knowledge of the age of the minor is not an essential element of the offense.  United States v. Valencia–Roldan, 893 F.2d 1080, 1083 (9th Cir. 1990).  This statute creates a separate offense and is not a mere sentence enhancement.  Id.

            This instruction may be modified for use in cases arising under §§ 861(a)(2) and (3).

            Regarding cases involving a “controlled substance analogue” as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 576 U.S. 186 (2015), that, to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or “that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.”  Id. at 194-95.  With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’” United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)).

Revised March 2024 

            The defendant is charged in [Count _______ of] the indictment with attempted employment of a minor to [specify drug law violation] in violation of Sections 841(a)(1), 846 and 861(a)(1) of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant intended to [[hire] [use] [persuade] [coerce] [induce] [entice] [employ]] [name of minor] to [specify drug law violation and controlled substance];

            Second, the defendant was at least eighteen years of age;

            Third, [name of minor] was under the age of eighteen years; and

            Fourth, the defendant did something that was a substantial step toward committing the crime. 

            A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime.  To constitute a substantial step, a defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward the commission of the crime of [hiring] [using] a minor to violate the drug laws.

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. 

Comment

            See Comment to Instruction 12.12 (Controlled Substance—Employment of Minor to Violate Drug Law).

            Regarding cases involving a “controlled substance analogue” as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 576 U.S. 186 (2015), that, to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or “that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue.”  Id. at 194-95. With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’” United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)).

           “To constitute a substantial step, a defendant’s ‘actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances’.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)).

             The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980) (per curiam) (“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”) and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same).

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).

            “[A] person may be convicted of an attempt to commit a crime even though that person may have actually completed the crime.”  United States v. Rivera-Relle, 333 F.3d 914, 921 (9th Cir. 2003).

Revised March 2024 

              The defendant is charged in [Count _______ of] the indictment with possession of a listed chemical with intent to manufacture [specify controlled substance] in violation of Section 841(c)(1) of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant knowingly possessed [specify listed chemical]; and

            Second, the defendant possessed it with the intent to manufacture [specify controlled substance].

            It does not matter whether the defendant knew that [specify listed chemical] was a listed chemical.  It is sufficient that the defendant knew that it was to be used to manufacture [specify controlled substance] or some other prohibited drug.

Comment

            The term “knowingly” in the first element refers only to “possessed” and not to “listed chemical.”  United States v. Estrada,453 F.3d 1208, 1212 (9th Cir. 2006); see also United States v. Ching Tang Lo, 447 F.3d 1212, 1231 (9th Cir. 2006) (same). 

             The defendant is charged in [Count _______ of] the indictment with [possession] [distribution] of a listed chemical, knowing or having reasonable cause to believe it would be used to manufacture [specify controlled substance] in violation of Section 841(c)(2) of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant knowingly [[possessed] [distributed]] [specify listed chemical]; and

            Second, the defendant [possessed] [distributed] it knowing, or having reasonable cause to believe, that it would be used to manufacture [specify controlled substance].

            It does not matter whether defendant knew that [specify listed chemical] was a listed chemical.  It is sufficient that the defendant knew or had reasonable cause to believe that it would be used to manufacture [specify controlled substance] or some other prohibited drug.

            “Reasonable cause to believe” means knowledge of facts that, although not amounting to direct knowledge, would cause a reasonable person in the defendant’s position knowing the same facts, to reasonably conclude that the [specify listed chemical] would be used to manufacture a controlled substance.  You must consider the knowledge and sophistication of the defendant when determining whether the defendant had reasonable cause to believe that the [specify listed chemical] would be used to manufacture [specify controlled substance] or some other prohibited drug.

Comment

            In United States v. Kaur,382 F.3d 1155, 1156-57 (9th Cir. 2004),the court recognized that 21 U.S.C. § 841(c)(2) “clearly presents knowledge and reasonable cause to believe as two distinct alternatives” and held that the trial court fairly and accurately defined “reasonable cause to believe” as follows:  “‘Reasonable cause to believe’ means to have knowledge of facts which, although not amounting to direct knowledge, would cause a reasonable person knowing the same facts, to reasonably conclude that the pseudoephedrine would be used to manufacture a controlled substance.”  See also United States v. Johal, 428 F.3d 823, 825-28 (9th Cir. 2005).  The “reasonable cause to believe” standard incorporates both objective and subjective elements.  Kaur, 382 F.3d at 1157.  The standard “requires a jury to evaluate scienter through the lens of the particular defendant on trial” considering “the knowledge and sophistication of the particular defendant on trial, not that of a hypothetical person before the court.”  United States v. Munguia, 704 F.3d 596, 603 (9th Cir. 2012).

            See United States v. Ching Tang Lo,447 F.3d 1212, 1231-33 (9th Cir. 2006) (discussing mens rea standard for conspiring to aid and abet manufacture of controlled substances).

Revised Apr. 2013

            The defendant is charged in [Count _____ of] the indictment with illegal use of a communication facility in violation of Section 843(b) of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant knowingly or intentionally used [a telephone] [the mail] [a radio] [a wire] to help bring about [specify illegal act or acts] as charged in [Count _____ of] the indictment].

Comment

            For a definition of “knowingly,” see Instruction 4.8 (Knowingly).

Revised Mar. 2018

             The defendant is charged in [Count _______ of] the indictment with engaging in a continuing criminal enterprise in violation of Section 848 of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant committed the violation[s] of [specify drug law violation] [as charged in [Count[s] _______ of] the indictment];

            Second, the violation[s] [was] [were] part of a series of three or more violations committed by the defendant over a definite period of time, with the jury unanimously finding that the defendant committed each of at least three such violations;

            Third, the defendant committed the violations together with five or more other persons.  The government does not have to prove that all five or more of the other persons operated together at the same time, or that the defendant knew all of them;

            Fourth, the defendant acted as an organizer, supervisor, or manager of the five or more other persons; and

            Fifth, the defendant obtained substantial income or resources from the violations.

            “Income or resources” means receipts of money or property.

Comment

            “[A] jury in a federal criminal case brought under § 848 must unanimously agree not only that the defendant committed some ‘continuing series of violations’ but also that the defendant committed each of the individual ‘violations’ necessary to make up that ‘continuing series.’”  Richardson v. United States, 526 U.S. 813, 815 (1999); see also United States v. Garcia, 988 F.2d 965, 969 (9th Cir. 1993) (concluding that general unanimity instruction is sufficient unless “genuine possibility” of juror confusion exists)(citing United States v. Gilley, 836 F.2d 1206, 1211-12 (9th Cir. 1988)); United States v. Hernandez-Escarsega, 886 F.2d 1560, 1570-73 (9th Cir. 1989).

            The Supreme Court has held that a § 846 drug conspiracy is a lesser included offense of a continuing criminal enterprise.  Rutledge v. United States, 517 U.S. 292, 306-07 (1996).

            To be held liable for occupying a “position of organizer” and a “supervisory position” within a continuing criminal enterprise, the defendant must be in a position of management.  United States v. Barona, 56 F.3d 1087, 1097 (9th Cir. 1995); but see United States v. Jerome, 942 F.2d 1328, 1331 (9th Cir. 1991) (reversing conviction when jury was not properly instructed as to which of several persons could be included in “five or more” category).

             The defendant is charged in [Count ______ of] the indictment with knowingly and intentionally [opening] [leasing] [renting] [using] [maintaining] any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using a controlled substance in violation of Section 856(a)(1) of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove beyond a reasonable doubt that the defendant knowingly [opened] [maintained] a place for the purpose of [manufacturing] [distributing] [using] a controlled substance.

            [“For the purpose of manufacturing, distributing or using a controlled substance” means that manufacturing, distributing, or using a controlled substance is one of the primary or principal uses to which the residence is put.]

            “Maintaining” a place includes facts showing that over a period of time, the defendant directed the activities of and the people in the place.

Comment

            In United States v. Shetler, 665 F.3d 1150, 1162 (9th Cir. 2011), the Ninth Circuit held that “in the residential context, the manufacture (or distribution or use) of drugs must at least be one of the primary or principal uses to which the house is put” (quoting United States v. Verners, 53 F.3d 291, 296 (10th Cir. 1995)).  See also United States v. Mancuso, 718 F.3d 780, 794-96 (9th Cir. 2013) (following Shetler and holding that “primary or principal use” instruction should have been used for count alleging unlawful use of dental office, as well as use of house).

            See United States v. Basinger, 60 F.3d 1400, 1405-06 (9th Cir. 1995) (analyzing dominion and control shed).

Revised July 2013

            The defendant is charged in [Count _______ ] of the indictment with unlawful importation of a controlled substance in violation of Sections 952 and 960 of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant knowingly brought [specify controlled substance] into the United States from a place outside the United States; and

            Second, the defendant knew the substance he was bringing into the United States was [specify controlled substance] or some other prohibited drug.

            [The government is not required to prove the amount or quantity of [specify controlled substance].  It need only prove beyond a reasonable doubt that there was a measurable or detectable amount of [specify controlled substance].]

            It does not matter whether the defendant knew that the substance was [specify controlled substance].  It is sufficient that the defendant knew that it was some kind of a prohibited drug.

Comment

            See Comment to Instructions 12.1 (Controlled Substance—Possession with Intent to Distribute) and 12.2 (Determining Amount of Controlled Substance).

            Separate counts for different controlled substances is not multiplicitous.  See United States v. Vargas-Castillo, 329 F.3d 715, 720-22 (9th Cir. 2003).

            “By their very nature, ‘importation’ offenses and ‘distribution’ offenses require entirely different factual bases to justify a conviction.”  United States v. Transfiguracion, 442 F.3d 1222, 1235-36 (9th Cir. 2006).

            See also United States v. Vallejo,237 F.3d 1008, 1025 n.8 (9th Cir. 2001) (noting that “the Ninth Circuit model instructions correctly state the law under 21 U.S.C. § 952 and 960”). 

            The defendant is charged in [Count _______ of] the indictment with the manufacture of [specify controlled substance] for purposes of unlawful importation in violation of Sections 959 and 960(a)(3) of Title 21 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

            First, the defendant manufactured [specify controlled substance] outside of the United States; and

            Second, the defendant either intended that the [specify controlled substance] be unlawfully brought into the United States [or into waters within a distance of 12 miles off the coast of the United States] or knew that the [specify controlled substance] would be unlawfully brought into the United States.

12.21 Controlled Substance—Statutory Enhancement Based on Prior Serious Drug Felony or Serious Violent Felony

Comment

          The First Step Act of 2018 (“FSA”) changed the law on sentencing enhancements for drug crimes pursuant to 21 U.S.C.§ 851. Prior to the FSA, 21 U.S.C. § 841(b) provided for enhanced mandatory minimums (or increased maximums) for those defendants who had a prior conviction for a “felony drug offense.” For the statutory enhancement to apply under this prior scheme, the government had to simply prove the fact of the prior conviction. 21 U.S.C. § 802(44). 

          In Apprendi v. United States, 530 U.S. 466, 490 (2000), the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”  The Court explained that recidivism, or “the fact of a prior conviction,” is “an exceptional departure from” and a "narrow exception to the general rule” that requires the jury to find such facts. Id. at 487, 490. Almendarez-Torres v. United States, 523 U.S. 224 (1998), which created this narrow exception, has been questioned by the Supreme Court but not overturned. When the FSA was enacted, it replaced “felony drug offense” with “serious drug felony,” as one type of requisite prior conviction for the enhancement to apply. See 21 U.S.C.§ 841(b)(1)(A). A “serious drug felony” is a “serious drug offense” as defined in 18 U.S.C. § 924(e)(2) and one for which (1) “the offender served a term of imprisonment of more than 12 months,” and (2) “the offender’s release from any term of imprisonment was within 15 years of the commencement of the instant offense.”  21 U.S.C. § 802(57). In addition, the FSA added that a “serious violent felony” would qualify for the enhancement; the prior offense must be a “serious violent felony” as defined in 18 U.S.C. § 3559(c)(2) and one in which “the offender served a term of imprisonment of more than 12 months.”  21 U.S.C. § 802(58). But the FSA did not change 21 U.S.C. § 851, which provides that the facts related to a prior conviction shall be determined by the court without a jury. Pursuant to Almendarez-Torres, a judge, and not a jury, could make the determination whether there was a qualifying prior felony conviction. However, the FSA altered the type of proof required to trigger enhanced mandatory sentences under § 841(b)(1)(A) and (B) for serious drug felonies and added the serious violent felony provision. Note, however, that § 841(b)(1)(C) and (D) were not altered by the FSA and those provisions continue to require a prior conviction for a “felony drug offense” for the sentencing enhancement to apply, such that Almendarez-Torres would continue to apply.

          Neither the Supreme Court nor the Ninth Circuit has addressed whether the Almendarez-Torres exception applies in a post-FSA world, when a defendant contests, factually and legally, whether a prior conviction qualifies as a “serious drug felony” or a “serious violent felony.” Other courts are currently divided on whether the additional facts regarding the prior conviction must be submitted to a jury or if they can be determined by the court at sentencing. See United States v. Fields, 435 F. Supp. 3d 761 (E.D. Ky. 2020), vacated and remanded, 44 F.4th 490 (6th Cir. 2022), and aff’d in part, vacated in part on other grounds, and remanded, 53 F.4th 1027 (6th Cir. 2022) (holding that the jury, and not the judge, is required to make findings about the length of a defendant’s prior imprisonment and the 15-year release window for a prior drug offense); United States v. Fields, 53 F.4th 1027, 1036-38 (6th Cir. 2022) (stating in dicta that lower court’s finding that jury must decide the two factual predicates for a serious drug offense as “intuitive” and “persuasive,” but ultimately not deciding the issue because the two factual predicates “were actually submitted to the jury,” so defendant “suffered no personal constitutional violation”); United States v. Ruiz, Case No. 1:21-CR-426-MLB, 2023 WL 3562970, at *5 (N.D. Ga. May 19, 2023) (indicating that “a jury will likely have to decide whether [the defendant] served a term of imprisonment of more than 12 months,” the factual predicate for a “serious violent felony”); United States v. Delpriore, Case No. 3:18-cr-00136-SLG, 2023 WL 4735031, at *5 (D. Alaska Mar. 20, 2023) (granting defendant’s motion to strike the enhanced statutory penalty because the government failed to submit  the issue to a jury and prove beyond a reasonable doubt the two factual predicates of a “serious drug felony”); but see United States v. Lee, Case No. 7:18-CR-153-FL-1, 2021 WL 640028, at *5-7 (E.D.N.C. Feb. 18, 2021) (holding that the two factual predicates are “encompasse[d]” within “the fact ‘of a prior conviction’” so as to fall within the Apprendi exception); United States v. Fitch, Case No. 1:19-CR-30-HAB, 2022 WL 1165000, at *2 (N.D. Ind. Apr. 19, 2022) (holding that the two factual predicates for a “serious drug felony” “fall under the umbrella of ‘fact[s] of a prior conviction’” and did not need to be submitted to a jury (alteration in the original)).

           A trial judge may consider whether to ask the jury to decide whether the prior conviction meets the current statutory criteria, after a finding of guilty on the new drug charge and before the defendant files a response to the government’s information identifying a prior conviction.  See 21 U.S.C. § 851(a)(1), (c)(1).

Revised June 2024