9.25 CONTROLLED SUBSTANCE—

EMPLOYMENT OF MINOR TO

VIOLATE DRUG LAWS

(21 U.S.C. §§ 841(a)(1) and 861(a)(1))

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. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly [[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 Sections 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, 135 S. Ct. 2298 (2015), that, in order 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 2305.

Approved 9/2015