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VOLUME 7 - CHAPTER 88
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88 Table of Contents
88.6 Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution
88.6.3 Possession Of Drugs, Controlled Substances For Sale, Delivery Or Distribution: Defenses And Defense Theories
88.6.3.1 Possession Of Drugs, Controlled Substances For Sale: Juror Unanimity Is As To Individual Units Of Contraband
88.6.3.2 Possession Of Drugs, Controlled Substances For Sale: Knowledge Of Sale Insufficient To Establish Intent To Sell
88.6.3.3 Possession Of Drugs, Controlled Substances For Sale: Defense Theory That Evidence Of Intent To Sell Or Distribute Is Insufficient
88.6.3.4 Possession Of Drugs, Controlled Substances With Intent To Deliver, Distribute Or Sell: Bare Possession Insufficient
88.6.3.5 Possession Of Controlled Substance With Intent To Sell Or Deliver: Quantity Possessed Not Alone Sufficient To Prove Intent
88.6.3.6 Police Officer Expert: Possession for Sale -- Bias Due To Forfeiture
88.6.3.7 Defense Theory Of No Intent To Sell, Deliver Or Distribute: Factors To Consider
88.6.3.8 Sale Or Transportation Of Drugs: Defense Theory That Defendant Had No Knowledge Of The Presence Of The Drugs Or Controlled Substance
88.6.3.9 Possession For Sale, Delivery Or Distribution: Additional Defenses And Defense Theories
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VOLUME 7 - CHAPTER 88
88.6.3.1 Possession Of Drugs, Controlled Substances For Sale: Juror Unanimity As To Individual Units Of Contraband
See FORECITE National™ 88.4.3.11 [Possession Of Drugs, Controlled Substances: Defense Theory Of Juror Unanimity As To Individual Units Of Contraband].
See also FORECITE National™ 273.10.11.1 [Jury Unanimity: Multiple Units Of Contraband].
RESEARCH NOTES:
See generally, FORECITE National™ 305.10.4 [Jury Unanimity].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 88.6.1.2 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution: Federal Circuit Model Instructions And Notes].
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88.6.3.2 Possession Of Drugs, Controlled Substances For Sale: Knowledge Of Sale Insufficient To Establish Intent To Sell
RATIONALE: When appropriate, an explanatory instruction may be necessary to assure that the jury does not improperly equate the defendant's knowledge that the drugs will be sold with the requirement that the defendant personally have the intent to sell the drugs.
POINTS AND AUTHORITIES: In re Christopher B. (CA 1990) 219 CA3d 455, 466 [268 CR 8] held that a conviction of possession for sale may not be based upon a finding that the defendant knew the drugs would eventually be sold; specific intent to sell is required. (See also People v. Consuegra (CA 1994) 26 CA4th 1726, 1732 [32 CR2d 288]; People v. Glass (CA 1975) 44 CA3d 772, 774 [118 CR 797]; People v. Newman (CA 1971) 5 C3d 48, 53-54 [95 CR 12]; State v. Elzie (LA 1977) 343 So2d 712, 714 [state was required to prove beyond a reasonable doubt not only that he possessed the cocaine found on his premises, but also that he did so with the specific subjective intention of possessing it in order to distribute it].)
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
NOTE: Christopher B. did not determine whether the perpetrator must intend to sell the drugs personally. However, Consuegra concluded that the requisite mental state "is satisfied when the drugs are possessed with the specific intent that they be sold, regardless of whether the possessor intends to sell them personally." (Consuegra, 26 CA4th at 1732, fn 4.)
RESEARCH NOTES:
See generally, FORECITE National™ 305.10.4 [Jury Unanimity].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 88.6.1.2 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
The defendant's knowledge that the drugs would eventually be sold by another party is not sufficient to find an intent to sell. The defendant must actually intend for the drugs to be sold, not merely have knowledge of their sale.
[Source: FORECITE National™.]
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88.6.3.3 Possession Of Drugs, Controlled Substances For Sale: Defense Theory That Evidence Of Intent To Sell Or Distribute Is Insufficient
PRACTICE NOTE: See U.S. v. Baker (4th Cir. 1993) 985 F2d 1248, 1257-60 [numerous attempts to obtain money from a bank and a supplier failed to prove necessary intent to distribute drugs that were purchased].
RESEARCH NOTES:
Annotation, Sufficiency Of Evidence Possessor Of Controlled Substance Other Than Cocaine, Heroin, Or Marijuana Had Intent To Distribute It, So As To Violate 21 USC 841(a)(1), 80 ALR Fed 507.
Annotation, Sufficiency Of Evidence That Possessor Of Marijuana Had Intent To Distribute It, So As To Violate 21 USC 841(a)(1), 79 ALR Fed 113.
Annotation, Sufficiency Of Evidence The Possessor Of Heroin Had Intent To Distribute It, So As To Violate 21 USC 841(a)(1), 78 ALR Fed 413.
RESEARCH NOTES:
See generally, FORECITE National™ 305.4.9 [Drug Offenses].
See also generally, FORECITE National™ 305.10.4 [Jury Unanimity].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 88.6.1.2 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution: Federal Circuit Model Instructions And Notes].
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88.6.3.4 Possession Of Drugs, Controlled Substances With Intent To Deliver, Distribute Or Sell: Bare Possession Insufficient
PRACTICE NOTE: Intent to deliver cannot be based on bare possession of a controlled substance; there must be other facts and circumstances establishing the required intent. (State v. Brown (WA 1993) 843 P2d 1098, 1100.)
See also FORECITE National™ 88.6.3.5 [Possession Of Controlled Substance With Intent To Sell Or Deliver: Quantity Possessed Not Alone Sufficient To Prove Intent].
RESEARCH NOTES:
See generally, FORECITE National™ 305.4.9 [Drug Offenses].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 88.6.1.2 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution: Federal Circuit Model Instructions And Notes].
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88.6.3.5 Possession Of Controlled Substance With Intent To Sell Or Deliver: Quantity Possessed Not Alone Sufficient To Prove Intent
PRACTICE NOTE: Quantity alone may be sufficient to prove intent to deliver, sell or distribute a controlled substance where the amount possessed is too large to be only for personal use. (People v. Chapple (IL 1997) 683 NE2d 1001, 1006-07.)
However, "even a large quantity of drugs might not yield a finding of intent to distribute if other circumstances indicated large private consumption." (Anaweck v. State (MD 1985) 492 A2d 658, 666.) Conversely, a much smaller quantity might yield such finding of intent, if evidence other than the quantity possessed showed that intent." (Ibid.)
See also FORECITE National™ 88.6.3.4 [Possession Of Drugs, Controlled Substances With Intent To Deliver, Distribute Or Sell: Bare Possession Insufficient].
RESEARCH NOTES:
See generally, FORECITE National™ 305.4.9 [Drug Offenses].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 88.6.1.2 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution: Federal Circuit Model Instructions And Notes].
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88.6.3.6 Police Officer Expert: Possession for Sale -- Bias Due To Forfeiture
See FORECITE National™ 29.1.11 [Bias Of Police Officer As Expert Witness Based On Potential Forfeiture Of Defendant's Assets].
RESEARCH NOTES:
See generally, FORECITE National™ 305.4.9 [Drug Offenses].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 88.6.1.2 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution: Federal Circuit Model Instructions And Notes].
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88.6.3.7 Defense Theory Of No Intent To Sell, Deliver Or Distribute: Factors To Consider
RATIONALE: The instructions should assure that the jury understands that it must consider all the circumstances in deciding whether the defendant intended to deliver, distribute or sell the drugs.
POINTS AND AUTHORITIES: Factors which have been recognized as relevant in deciding whether the defendant intended to sell or distribute the drugs, as opposed to using them personally, include: (1) the nature and location where the defendant was arrested; (2) the quantity of controlled substance in defendant's possession; (3) the manner of packaging; (4) the presence of drug paraphernalia for either drug use or sale; (5) the defendant's possession of large amounts of cash; and (6) the defendant's status as drug user. (See Williams v. State (TX 1994) 902 SW2d 505, 507; see also State v. Simpson (IA 1995) 528 NW2d 627, 632, 635 (Ternus, J., dissenting); People v. Jones (IL 1991) 575 NE2d 561, 563 [evidence of defendant's intent to deliver included amount of cocaine in defendant's possession, manner in which cocaine was packaged, and defendant's hidden cache of $1,000 in currency]; Commonwealth v. Gill (PA 1980) 415 A2d 2, 4 [quantity and paraphernalia possessed was consistent with use rather than intent to deliver]; Commonwealth v. Santiago (PA 1975) 340 A2d 440, 444-45 [quantity packaging and paraphernalia consistent with intent to sell]; Commonwealth v. Wallace (PA 1979) 401 A2d 816 [prior transactions, quantity and expert testimony showed intent to sell]; Castillo v. State (TX 1993) 867 SW2d 817, 821 [intent to deliver may be proven by circumstantial evidence, such as quantity of drugs possessed and manner of packaging; another factor showing intent to deliver is presence of accused in "trap" or crack house].)
See also FORECITE National™ 88.6.3.5 [Possession Of Controlled Substance With Intent To Sell Or Deliver: Quantity Possessed Not Alone Sufficient To Prove Intent].
FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTE:
Annotation, Validity And Construction Of Statute Creating Presumption Of Inference Of Intent To Sell From Possession Of Specified Quantity Of Illegal Drugs, 60 ALR3d 1128.
See also generally, FORECITE National™ 305.4.9 [Drug Offenses].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 88.6.1.2 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION # 1:
You may find that the defendant had the intent to [sell] [distribute] [deliver] based on circumstantial evidence only if the circumstantial evidence proves the required intent beyond a reasonable doubt.
[Cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 16.02(b)B [Circumstantial Evidence Of Intent To Deliver Or Manufacture] (Pennsylvania Bar Institute, PBI Press, 12/88).]
SAMPLE INSTRUCTION # 2:
If you find beyond a reasonable doubt that the defendant knowingly possessed ____________ <name of controlled substance> you must then decide whether the defendant's possession was with the intent to [sell] [distribute] [deliver] [________] the ___________ <name of controlled substance>.
In deciding whether the defendant had the intent to [sell] [distribute] [deliver], consider all the evidence including but not limited to the following:
1. The quantity of and value of the substance possessed.
2. The manner in which the substance was packaged.
3. The location where the substance was possessed.
4. Whether or not persons other than the defendant used and/or possessed the substance.
5. Whether or not the substance was ready for use.
6. Whether the defendant was an addict or user and, if so, whether or not the amount exceeded what he might be expected to possess for his own use.
7. Whether or not the defendant possessed paraphernalia for cutting, weighing or packaging the substance.
8. Whether or not the defendant possessed paraphernalia for using the substance.
9. Whether or not the defendant solicited or negotiated with potential buyers of the substance.
10. Whether or not the defendant sold or otherwise delivered controlled substances on other occasions.
[See generally Commonwealth v. Gill (PA 1980) 415 A2d 2, 4; see also Castillo v. State (TX 1993) 867 SW2d 817, 821; cf. PENNSYLVANIA SUGGESTED STANDARD CRIMINAL JURY INSTRUCTIONS, Pa. SSJI (crim) 16.02(b)B [Circumstantial Evidence Of Intent To Deliver Or Manufacture] (Pennsylvania Bar Institute, PBI Press, 12/88); VIRGINIA MODEL JURY INSTRUCTIONS - CRIMINAL No. 22.350 [Intent To Distribute-Factor To Be Considered In Determining] (Lexis, 2000).]
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88.6.3.8 Sale Or Transportation Of Drugs: Defense Theory That Defendant Had No Knowledge Of The Presence Of The Drugs Or Controlled Substance
RATIONALE: Where knowledge of the presence of the drugs is an element of the charge, a defense theory which challenges the defendant's knowledge may necessitate an instruction explaining the theory to the jury.
POINTS AND AUTHORITIES: Knowledge of the presence of the substance is an essential element of possession in general (see FORECITE National™ 56.2.13 [Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband]) and of possession of a controlled substance in particular. (See e.g., State v. Dominguez (FL 1987) 509 So2d 917; see also State v. Fox (ID 1993) 866 P2d 181; People v. Castro (IL 1971) 274 NE2d 839, 841; Fogg v. Commonwealth (VA 1975) 219 SE2d 672; IDAHO CRIMINAL JURY INSTRUCTIONS, ICJI
404 [Delivery of Controlled Substance] (Idaho Law Foundation, Inc., 1995).)See also FORECITE National™ 88.4.3.13 [Defense Theory That Defendant Mistakenly Believed The Substance Possessed Was A Substance Other Than The One Proscribed By Statute].
See also FORECITE National™ 56.2.13
[Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband].FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].
RESEARCH NOTES:
See generally, FORECITE National™ 305.4.9 [Drug Offenses].
RELATED FEDERAL MODEL INSTRUCTIONS:
See FORECITE National™ 88.6.1.2 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution: Federal Circuit Model Instructions And Notes].
SAMPLE INSTRUCTION:
The prosecution is required to prove beyond a reasonable doubt that the defendant knew [he] [she] possessed the substance which the prosecution alleges [him] [her] to have possessed. If you have a reasonable doubt whether the prosecution has met this burden you must give the defendant the benefit of that doubt and vote to find [him] [her] not guilty.
[Cf. MICHIGAN CRIMINAL JURY INSTRUCTIONS CJI2d 12.2 [Unlawful Delivery Of A Controlled Substance] (ICLE, 2nd ed. 2000).]
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88.6.3.9 Possession For Sale, Delivery Or Distribution: Additional Defenses And Defense Theories
PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)