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    88.1.1 Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven
    88.1.2 Challenge To "Drug Involvement Profile" Evidence As Substantive Proof of Guilt
    88.1.3 Defense Theory That Buyer-Seller Relationship Is Not A Drug Conspiracy
    88.1.4 Drugs, Controlled Substances: Defense Of Entrapment
    88.1.5 Drugs, Controlled Substances: Controlled Substances And Illegal Drugs: Defense Theory Of Ultimate User Doctrine
    88.1.6 Drugs, Controlled Substances: Possession For Religious Use As Defense Theory
    88.1.7 Unlawful Drug Prescription: Good Faith Practice Of Medicine As Defense Theory
    88.1.8 Factors To Consider In Evaluating Analysis Of The Drug Or Substance
    88.1.9 Challenging The Distinction Between Cocaine And Cocaine Base On Equal Protection And Former Jeopardy Grounds
    88.1.10 Constitutional Challenge To Criminalization Of Loitering With Intent To Commit Drug Offense

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RATIONALE: When the statute specifies a specific controlled substance, identification of that substance is an element of the offense. If the defense theory is that the identity of the substance has not been proven, an instruction explaining this theory may be appropriate.

POINTS AND AUTHORITIES: Where a statute sets forth more than one criminal offense with the identity of each being determined by the type of controlled substance involved, the type of controlled substance involved constitutes an essential element of the crime. (See e.g., U.S. v. Umentum (7th Cir. 1976) 547 F2d 987, 992; U.S. v. Orzechowski (7th Cir. 1976) 547 F2d 978, 982-83; U.S. v. Luschen (8th Cir. 1980) 614 F2d 1164, 1169.)

    "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." (7TH CIRCUIT FEDERAL JURY INSTRUCTIONS - CRIMINAL § 21 USC 841(a)(1) [Distribution Of A Controlled Substance-Elements], comment (1999).)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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    88.1.2    Challenge To "Drug Involvement Profile" Evidence As Substantive Proof Of Guilt

PRACTICE NOTE: "Drug involvement profile" evidence which seeks to establish the defendant's guilt by demonstrating that his or her behavior matched that of drug dealers previously encountered by the expert is too unreliable to be of assistance to the trier of fact and should be excluded as being more prejudicial than probative on the issue of the defendant's intent to sell or distribute drugs. (See People v. Martinez (CA 1992) 10 CA4th 1001, 1004-08 [12 CR2d 838]; see also People v. Hubbard (MI 1995) 530 NW2d 130; but see People v. Singh (CA 1995) 37 CA4th 1343, 1377-79 [44 CR2d 644].)

RESEARCH NOTES:

Annotation, Admissibility, In Criminal Prosecution, Of Expert Opinion Allegedly Stating Whether Drugs Were Possessed With Intent To Distribute -- State Cases, 83 ALR4th 629.

See also generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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    88.1.3    Defense Theory That Buyer-Seller Relationship Is Not A Drug Conspiracy

    See FORECITE National™ 83.3.2.1 [Conspiracy: Defense Theory That "Buyer-Seller Relationship" Is Insufficient].

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    88.1.4    Drugs, Controlled Substances: Defense Of Entrapment

    See FORECITE National™ 257.3 [Entrapment].

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    88.1.5    Drugs, Controlled Substances: Defense Theory Of Ultimate User Doctrine

PRACTICE NOTE: The ultimate user doctrine may apply if a substance was obtained abroad for personal medical use pursuant to a valid prescription and the substance was later brought into the U.S. in accordance with federal import regulations. (See Wright v. State (TX 1998) 981 SW2d 197, 200-01.)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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    88.1.6    Drugs, Controlled Substances: Possession For Religious Use As Defense Theory

RATIONALE: When appropriate special instruction may be necessary for the jury to understand the defense theory that an illegal drug was possessed for religious purposes.

POINTS AND AUTHORITIES: A defendant may trigger protection of Religious Freedom Restoration Act (RFRA) (42 USC 2000bb et seq.) as a defense to charges of marijuana possession and trafficking if defendant can demonstrate that his possession and use of the drug is pursuant to a bona fide religion. (See U.S. v. Meyers (D. Wyo. 1995) 906 FSupp 1494, 1498-99; see also State v. Whittingham (AZ 1973) 504 P2d 950, 954 [it is defense that peyote was being used in connection with bona fide practice of religious belief, that it was integral part of religious exercise, and that it was used in manner not dangerous to public health, safety or morals]; In re Grady (CA 1964) 61 C2d 887 [39 CR 912].)

    The Religious Freedom Restoration Act of 1993 repudiated Employment Division v. Smith (1990) 494 US 872 [110 SCt 1595; 108 LEd2d 876] which had held that the First Amendment’s Free Exercise Clause did not protect religiously motivated behavior that conflicts with neutral law of general applicability. Hence, the intent of 42 USC section 2000bb is to restore the compelling interest test in determining whether a law violates the Free Exercise Clause. (See e.g., Wisconsin v. Yoder (1972) 406 US 205 [92 SCt 1526; 32 LEd2d 15]; Sherbert v. Verner (1963) 374 US 398 [83 SCt 1790; 10 LEd2d 965].) That is, the government may not substantially burden a person’s exercise of religion unless:

    (1)     the burden is in furtherance of a compelling government interest; and

    (2)     the challenged governmental action represents the least restrictive means of furthering the compelling governmental interest. (See 42 USC section 2000bb-1(a) (1995); see also U.S. v. Bauer (9th Cir. 1996) 84 F3d 1549, 1557.)

    Accordingly, where the defendant honestly and in good faith holds religious beliefs which include the use or possession of controlled substances as a bona fide religious practice, the religious belief and practice should be a defense to a criminal charge of possessing or using the controlled substance. (See U.S. v. Ballard (1944) 322 US 78 [64 SCt 882; 88 LEd 1148]; see also People v. Woody (CA 1964) 61 C2d 716, 727-28 [40 CR 69]; Whitehorn v. State (OK 1977) 561 P2d 539, 544-45.)

    The question of whether the possession or use of the controlled substance is a bona fide religious practice has been said to be a question of law for the trial judge. (OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 6-8, comment [Defense Of Possession For Religious Use] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).)

    On the other hand, the determination of whether the defendant honestly and in good faith is a member of the church should be determined by the trier of fact in consideration of relevant indicia of membership such as length of affiliation, regularity of attendance at religious services and functions, and satisfaction of membership criteria, etc. (See Whitehorn, 561 P2d at 547-48.)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 4.1].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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    See FORECITE National™ 252.11.6 [Good Faith Practice Of Medicine].

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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RATIONALE: Without specific instruction the jury may not consider all appropriate factors in evaluating the reliability of drug analysis evidence.

POINTS AND AUTHORITIES: Chain of custody and reliability of drug analysis may be evidentiary issues, especially in cases involving illegal drugs or controlled substances. (See e.g., FORECITE National™ 25.2.6 [Consideration Of Whether Exhibits Are The Same Objects And In The Same Condition As When Originally Seized] and FORECITE National™ 96.3.3.4 [Possession Of Drugs Or Alcohol In Jail Or Prison/Bringing Drugs or Alcohol Into Jail Or Prison: Chain of Custody As Defense Theory].) If such issues are the focus of a defense theory, special instruction may be appropriate, if requested by the defendant. (See generally FORECITE National™ 250.1 [Grounds For Instruction On Defense Theory].) Such an instruction should inform the jury that it "must" consider the defense theory and the factors related thereto. (See e.g., FORECITE National™ 16.3.1 [Jury Must Consider All Of The Evidence].)

    It should also require a reasonable doubt about the issue to be resolved in favor of the defendant. (See FORECITE National™ 270.4.1 [Reasonable Doubt As To Any Element Or Essential Fact By Any Juror Precludes Conviction].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 3.5; 4.1].

P. Giannelli, Forensic Science: Chain Of Custody, Crim. L. Bull. (Sept.-Oct. 1996).

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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PRACTICE NOTE: A successful challenge to the distinction between cocaine and cocaine base was made in the Atlanta U.S. District Court. In U.S. v. Davis (N.D. Ga. 1994) 864 FSupp 1303, 1309, counsel argued that there is no scientific difference between cocaine and cocaine base. In that case, the judge granted an evidentiary hearing wherein chemists and pharmacologists hired by the defense, prosecution and court all agreed on one critical point: 'cocaine base' is synonymous with 'cocaine.' The court agreed with the defense and held that the heightened penalty provision for cocaine base should be ignored. (But see U.S. v. Armstrong (1996) 517 US 456, 464-70 [116 SCt 1480; 134 LEd2d 687] [insufficient showing of selective prosecution]; U.S. v. Byse (11th Cir. 1994) 28 F3d 1165, 1168-69; People v. Howell (CA 1990) 226 CA3 254, 260-61 [276 CR 454] [cocaine hydrochloride and cocaine base are both cocaine, cocaine hydrochloride is a different substance from cocaine base].)

See generally, FORECITE National™ 305.4.9 [Drug Offenses].

See generally, FORECITE National™ 88.4.1.2 [Drugs, Controlled Substances: Federal Circuit Model Instructions And Notes].

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    88.1.10    Constitutional Challenge To Criminalization Of Loitering With Intent To Commit Drug Offense

PRACTICE NOTE: See City of Chicago v. Morales (1999) 527 US 41 [119 SCt 1849; 144 LEd2d 67 [criminal liability for loitering without any apparent purpose violates due process. The majority and concurring opinion concluded that "apparent purpose" is too vague because it leaves the decision of who is violating the law to the police].