7^th CIRCUIT FEDERAL INSTRUCTIONS 1999
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        01    Distribution Of A Controlled Substance--Elements (21 USC 841(a)(1))
        02    Definition Of Distribution (21 USC 841(a)(1))
        03    Knowledge Of Identity Of Substance (21 USC 841(a)(1))
        04    Possession With Intent To Distribute--Elements (21 USC 841(a)(1))
        05    Definition Of Possession (21 USC 841(a)(1))
        06    Definition Of Controlled Substance (21 USC 841(a)(1))
        07    Use Of Communication Facility In Aid Of Narcotics Offense – Elements (21 USC 843(b))
        08    Use Of Communication Facility In Aid Of Narcotics Offense --Definitions (21 USC 843(b))
        09    Conspiracy--Elements (21 USC 846)
        10    Continuing Criminal Enterprise--Elements (21 USC 848)
        11    Continuing Criminal Enterprise--Continuing Series Of Offenses (21 USC 848)
        12    Continuing Criminal Enterprise--Five Or More Persons (21 USC 848)
        13    Continuing Criminal Enterprise--Organizing, Managing, Supervising (21 USC 848)
        14    Continuing Criminal Enterprise--Substantial Income Or Resources (21 USC 848)
        15    Definition Of Import (21 USC 951(a)(1))
        16    Definition Of Customs Territory Of The United States (21 USC 951(a)(2))
        17    Importation Of Controlled Substances – Elements (21 USC 952(a))
        18    Definition Of Controlled Substance (21 USC 952(a))
        19    Knowledge Of Identity Of Controlled Substance (21 USC 952(a))
        20    Importation Of Nonnarcotic Drugs--Elements (21 USC 952(b))

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession With Intent To Distribute A Controlled Substance (21 USC 841(a)(1))

See FORECITE National™ Federal Models By Offense: Distribution Of A Controlled Substance (21 USC 841(a)(1))

Where the defendant has challenged the government's proof that the substance in question falls within the statutory definition, more detailed instructions may be required. For examples of such instructions, see United States v. Luschen, 614 F.2d 1164, 1169 n.2 (8th Cir.1980); United States v. Umentum, 547 F.2d 987, 992 n.3 (7th Cir.1976), cert. denied, 430 U.S. 983 (1977); United States v. Orzechowski, 547 F.2d 978, 982-83 n.3, 983 n.4 (7th Cir.1976), cert. denied, 431 U.S. 906 (1977).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession With Intent To Distribute A Controlled Substance (21 USC 841 (a)(1))

See FORECITE National™ Federal Models By Offense: Distribution Of A Controlled Substance (21 USC 841(a)(1))

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession With Intent To Distribute A Controlled Substance (21 USC 841 (a)(1))

See FORECITE National™ Federal Models By Offense: Distribution Of A Controlled Substance (21 USC 841(a)(1))

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession With Intent To Distribute A Controlled Substance (21 USC 841 (a)(1))

See FORECITE National™ Federal Models By Offense: Distribution Of A Controlled Substance (21 USC 841(a)(1))

Where the defendant has challenged the government's proof that the substance in question falls within the statutory definition, more detailed instructions may be required. For examples of such instructions, see United States v. Luschen, 614 F.2d 1164, 1169 n.2 (8th Cir.1980); United States v. Umentum, 547 F.2d 987, 992 n.3 (7th Cir.1976), cert. denied, 430 U.S. 983 (1977); United States v. Orzechowski, 547 F.2d 978, 982-83 n.3, 983 n.4 (7th Cir.1976), cert. denied, 431 U.S. 906 (1977).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession With Intent To Distribute A Controlled Substance (21 USC 841 (a)(1))

See FORECITE National™ Federal Models By Offense: Distribution Of A Controlled Substance (21 USC 841(a)(1))

The possession instruction is based on that approved in United States v. Lloyd, 71 F.3d 1256, 1266-67 (7th Cir.1995), with two changes. First, instead of "dominion," a non-ordinary word, we have used "direction." Second, the Committee has eliminated the use of the term "constructive possession," though the concept remains within the instruction. This instruction may also be used in connection with other possession statutes, such as 18 USC 922(g).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Possession With Intent To Distribute A Controlled Substance (21 USC 841 (a)(1))

See FORECITE National™ Federal Models By Offense: Distribution Of A Controlled Substance (21 USC 841(a)(1))

You are instructed that (identify the controlled substance) is a controlled substance.

Where the defendant has challenged the government's proof that the substance in question falls within the statutory definition of the substance charged, more detailed instructions may be required. Such instructions should make clear that the government must prove beyond a reasonable doubt that the substance in question was in fact the substance charged as defined in the appropriate Schedule of 21 USC 812. The instructions may also need to include a definition of the substance as articulated in § 802(16) (definition of "narcotic" drug) and § 812. For examples of such instructions, see United States v. Luschen, 614 F.2d 1164, 1169 n.2 (8th Cir.1980); United States v. Umentum, 547 F.2d 987, 992 n.3 (7th Cir.1976), cert. denied, 430 U.S. 983 (1977); United States v. Orzechowski, 547 F.2d 978, 982-83 n.3, 983 n.4 (7th Cir.1976), cert. denied, 431 U.S. 906 (1977).

Where a question arises as to whether the drug is a narcotic or non- narcotic drug, both the definition of narcotic drug and the elements instruction for 21 USC 952(b) (lesser-included offense) should be given.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

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See FORECITE National™ Federal Models By Offense: Unlawful Use Of Communications Facility (21 USC 843(b))

See United States v. Rey, 641 F.2d 222, 224 n.6 (5th Cir.), cert. denied, 454 U.S. 861 (1981).

Telephones are the most common form of communication facility charged under 21 USC 843(b). If another type of facility is charged, and it if falls within the list included in the statute, it should be listed specifically in this instruction.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Unlawful Use Of Communications Facility (21 USC 843(b))

Regarding the definition of "facilitate," see United States v. Aquilla, 976 F.2d 1044, 1049 (7th Cir. 1992); United States v. Alvarez, 860 F.2d 801, 813 (7th Cir.1988).

If there is no dispute as to whether the device allegedly used was a "communication facility" (which should be true in most cases), the second paragraph should not be given and the facility used should be specified in the elements instruction.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

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See FORECITE National™ Federal Models By Offense: Controlled Substances -- Conspiracy (21 USC 846)

The Committee recommends the use of the general Conspiracy instruction, without the overt act requirement. See Committee Comment following that instruction. United States v. Shabani, 115 S.Ct. 382 (1994); see also United States v. Umentum, 547 F.2d 987, 991 (7th Cir. 1976), cert. denied, 430 U.S. 983 (1977); United States v. Sassi, 966 F.2d 283, 285 (7th Cir.), cert. denied, 506 U.S. 991 (1992).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

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See FORECITE National™ Federal Models By Offense: Continuing Criminal Enterprise (21 USC 848)

To sustain the charge in Count ___ that a [the] defendant engaged in a continuing criminal enterprise, the government must prove each of the following propositions beyond a reasonable doubt:

First, that the defendant committed a continuing series of at least three or more of the narcotics offenses alleged in Count ___;

Second, the defendant committed the offenses acting in concert with five or more other persons;

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

Fourth, the defendant obtained substantial income or resources from the offenses.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty on Count ___.

If, on the other hand, you find from your consideration of all of the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty on Count ___.

See United States v. Gibbs, 61 F.3d 536, 537 (7th Cir.1995); United States v. Herrera-Rivera, 25 F.3d 491, 498 (7th Cir.1994).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Continuing Criminal Enterprise (21 USC 848)

The narcotics offenses you may consider in determining whether the defendant committed a continuing series of at least three offenses include:

[List possible predicate offenses (including those charged in the indictment), e.g. distribution of a controlled substance, possession of a controlled substance with the intent to distribute, or use of telephones to facilitate the commission of a narcotics offense.]

In determining whether the defendant engaged in a continuing series of at least three narcotics offenses, you may consider the offenses alleged in the indictment [as well as other alleged offenses of these types.] You must find that the government has proved that the defendant committed any offense beyond a reasonable doubt in order to consider it to be part of a continuing series.

See Garrett v. United States, 471 U.S. 773 (1985); United States v. Baker, 905 F.2d 1100, 1103 (7th Cir.1990); United States v. Young, 745 F.2d 733 (2nd Cir.1984); cf. United States v. Markowski, 772 F.2d 358, 361 n.1 (7th Cir.1985). Note that the Seventh circuit, in accord with the majority of circuits that have considered the question, does not require unanimity on the jury's part as to which specific offenses make up the continuing series. United States v. Canino, 949 F.2d 928 (7^th Cir.1991); but see United States v. Edmonds, 80 F.3d 810 (3rd Cir.1996) (en banc).

The bracketed language should only be used if the indictment charges a continuing series of offenses consisting of specified acts, as opposed to a series of consisting of statutory categories of offenses such as "multiple acts of possession of controlled substances with intent to distribute and distribution of controlled substances."

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Continuing Criminal Enterprise (21 USC 848)

See United States v. Gibbs, 61 F.3d 536, 538, 539 n.1 (7th Cir.1995); United States v. Bafia, 949 F.2d 1465, 1470-71 (7th Cir.1991); United States v. Markowski, 772 F.2d 358, 364 (7^th Cir.1985), cert. denied, 475 U.S. 1018 (1986).

The bracketed instructions should be given only where the question addressed is raised.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Continuing Criminal Enterprise (21 USC 848)

See United States v. Gibbs, 61 F.3d 536, 538 (7th Cir. 1995); United States v. Mannino, 635 F.2d 110, 116-17 (2nd Cir.1980); United States v. Ray, 731 F.2d 1361, 1367 (9th Cir.1984); United States v. Dickey, 736 F.2d 571, 587 (10th Cir.1984); United States v. Phillips, 664 F.2d 971, 1013 and 1034 (5th Cir.1981) cert. denied, 457 U.S. 1136 (1982); United States v. Rhodes, 779 F.2d 1019, 1026 (4th Cir.1985).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Continuing Criminal Enterprise (21 USC 848)

The term "substantial" means of real worth and importance, or of considerable value. The term "resources" includes money, drugs or other items of material value.

The element of "substantial income or resources" can be proved circumstantially. For example, evidence of substantial gross receipts, substantial gross income or expenditures, receipt or possession of a large amount of narcotics, a large cash flow, a substantial amount of money changing hands, or anticipated profits from future sales may be considered by you in determining whether defendant obtained "substantial income and resources" from the continuing criminal enterprise. [Substantial income or resources is not limited to substantial "net" income or profit.]

See United States v. Herrera-Rivera, 25 F.3d 491, 499 (7th Cir.1994); United States v.Dickey, 736 F.2d 571, 588 (10th Cir.1984) (substantial gross receipts, gross income, or gross expenditures); United States v. Graziano, 710 F.2d 691, 698 (11th Cir.1983) (receipt of narcotics constitutes income), cert. denied, 466 U.S. 937 (1984); United States v. Chagra, 669 F.2d 241, 257- 58 (5th Cir.) ("accounts receivable" from drug transaction constitutes income; circumstantial evidence permissible; lavish personal expenditures with no legitimate source of income), cert. denied, 459 U.S. 846 (1982); United States v. Thomas, 632 F.2d 837, 847 (10th Cir.) (large cash flow), cert. denied, 449 U.S. 960 (1980); United States v. Bolts, 558 F.2d 316, 321 (5th Cir.1977) (substantial amounts of money changing hands), cert. denied, 434 U.S. 930, 439 U.S. 898 (1978); United States v. Jeffers, 532 F.2d 1101, 1116-17 (7th Cir.1976) (gross receipts), rev'd in part on other grounds, 432 U.S. 137 (1977).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Definition Of Import (21 USC 951(a)(1))

The term import is defined in 21 USC 951(a)(1). This section has been interpreted to mean that the government must prove beyond a reasonable doubt that the substance emanated from a point outside the United States and that it was then brought into the United States or a United States customs territory. United States v. Seni, 662 F.2d 277, 286-87 (4th Cir.1981), cert. denied, 455 U.S. 950 (1982); United States v. Watkins, 662 F.2d 1090, 1098 (4th Cir.1981), cert. denied sub nom. Watkins v. United States, 455 U.S. 989 (1982).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Definition Of Customs Territory Of The United States (21 USC 951(a)(2))

Customs territory of the United States includes only the States, the District of Columbia, and Puerto Rico.

Section 951(a)(2) defines this term by reference to general headnote 2 to the Tariff Schedules of the United States. As of 1984, this headnote defined "customs territory" as set out in this instruction.

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Controlled Substances (21 USC 952(a))

The cases make clear that proof of importation alone is insufficient under this statute. The government must prove not only that the substance was imported as defined in Instruction 21 U.S.C. s 951(a)(1) (Definition of Import), supra p. 132, but also that the defendant imported the substance. United States v. Koua Thao, 712 F.2d 369, 371 (8th Cir.1983); United States v. Seni, 662 F.2d 277, 280 (4th Cir.1981), cert. denied sub nom. Minton v. United States; 455 U.S. 950 (1982).

Although the statute itself contains no intent requirement, the cases also make clear that the statute is a specific intent statute which requires the government to prove both that the defendant knowingly imported the substance in question and that the defendant knew the substance was a controlled substance. United States v. Galvan, 693 F.2d 417, 421 (5th Cir.1982) (§ 952 is specific intent statute which requires proof of knowledge "that a controlled substance is being imported"); United States v. Lopez, 663 F.2d 532, 534 (5th Cir.1981) (importation must be done "knowingly and intentionally"); United States v. Seni, 662 F.2d at 280 (importation must be done "knowingly and willfully").

Several circuits have held that the government need not prove the defendant knew specifically which drug he was importing as long as it proves that the defendant knew he was importing a controlled substance. See United States v. Lopez-Martinez, 725 F.2d 471, 475 (9th Cir.), cert. denied, 469 U.S. 837 (1984); Quintero v. United States, 33 F.3d 1133, 1136 (9th Cir.1994). See also United States v. Lewis, 676 F.2d 147, 149 (9th Cir), cert. denied, 429 U.S. 837 (1976); United States v. Gomez, 905 F.2d 1513, 1514 (11th Cir.), cert. denied, 498 U.S. 1092 (1990); United States v. Ramierz-Ramierz, 875 F.2d 772, 774 (9th Cir.1989); United States v. Restrepo-Granda, 575 F.2d 524, 527 (5th Cir.), cert. denied, 439 U.S. 935 (1978); and United States v. Rea, 532 F.2d 147, 149 (9th Cir.), cert. denied, 429 U.S. 837 (1976).. Although the Seventh Circuit never has specifically ruled on the issue, its decisions in United States v. Vargas, 583 F.2d 380, 384 (7th Cir. 1978) and United States v. Moser, 509 F.2d 1089, 1092 (7th Cir.1975), both of which require some sort of proof that the defendant have knowledge of the specific type of drug as charged in the indictment, appear contrary to the above position. However, in United States v. Herrero, 893 F.2d 1512, 1535 (7th Cir.), cert. denied, 496 U.S. 927 (1990), the 7th Circuit cited both Lopez-Martinez and Lewis in holding that a co-conspirator need only have knowledge that his partner is dealing in controlled

substances and not that he is distributing a specific drug.

The cases are silent on the issue of whether the defendants must know they are actually crossing a border; i.e. knowingly importing something. Although this silence indicates that the question remains open, because it has never been raised, the Committee decided not to include it as an element in the instruction.

Section 952(a), which is contained in Chapter II of Chapter 13 of Title 21, enumerates several exceptions to its prohibitions which are permitted pursuant to various regulations prescribed by the Attorney General. Other exceptions to § 952 are enumerated in 21 USC 956. Under 21 USC 885(a)(1), the burden of going forward with evidence to support these exceptions is on the defendant. Although this section applies only to Subchapter I, § 965 of Title 21 makes § 885(a)(1) applicable to charges brought under Subchapter II. Thus, it appears that the burden of going forward with evidence to support an exception to § 952(a) is on the defendant.

The Seventh Circuit has so interpreted § 885(a)(1) for offenses included in Subchapter I. United States v. Felts, 602 F.2d 146, 148 (7th Cir.1979), cert. denied, 444 U.S. 1046 (1980); United States v. Kelly, 500 F.2d 72, 73 (7th Cir.1974). Although the Seventh Circuit has never ruled on the application of § 885(a)(1) to § 952 or to any other statute included in Subchapter II, in United States v. Murray, 618 F.2d 892, 901 (2d. Cir.1980), the Second Circuit citing Felts, did apply § 885(a)(1) to statutes included in Subchapter II.

Once a defendant introduces evidence to show that one of the exceptions listed in § 952(a) may be applicable to him, the government must prove the nonapplicability of the exception beyond a reasonable doubt and the exception must be included as an element in the elements instruction. United States v. Kelly, supra at 74

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Controlled Substances (21 USC 952(a))

Where the defendant has challenged the government's proof that the substance in question falls within the statutory definition of the substance charged, more detailed instructions may be required. Such instructions should make clear that the government must prove beyond a reasonable doubt that the substance in question was in fact the substance charged as defined in the appropriate Schedule of 21 U.S.C. s 812. The instructions may also need to include a definition of the substance as articulated in s 802(16) (definition of "narcotic" drug) and s 812. For examples of such instructions, see United States v. Luschen, 614 F.2d 1164, 1169 n.2 (8th Cir.1980); United States v. Umentum, 547 F.2d 987, 992 n.3 (7th Cir.1976), cert. denied, 430 U.S. 983 (1977); United States v. Orzechowski, 547 F.2d 978, 982-83 n.3, 983 n.4 (7th Cir.1976), cert. denied, 431 U.S. 906 (1977).

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Controlled Substances (21 USC 952(a))

7th CIRCUIT FEDERAL INSTRUCTIONS 1999

FORECITE National™ Materials Related To This Instruction:

See FORECITE National™ Federal Models By Offense: Importation Of Nonnarcotic Drugs--Elements (21 USC 952(b))

See United States v. Osmani, 20 F.3d 266 (7th Cir. 1994).