THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Attempts
1.
Attempt: Mere Preparation Insufficient
2. Attempt: Jury May Not
Consider Actions Of Government Agents Or Informers
As To Substantial Step Issue
3. Attempted Possession Of
Drugs With Intent To Distribute Requires Proof Of
What Defendant's Intent Would
Have Been After Receipt Of Drugs
4. Attempted Possession Of
Controlled Substance/Illegal Drug: Mere Negotiation
Of Purchase Insufficient
5. Statements Made After
Attempt
6. Attempts: Factors To
Consider
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Attempt: Mere Preparation Insufficient
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Preparation to commit a crime is not a substantial step toward its commission and does not, without more, constitute a criminal attempt.
AUTHORITY:
United States v. Cea, 914 F.2d 881, 887-89 (7th Cir. 1990).
RELATED NCJIC MATERIALS:
See NCJIC 66.2 [Attempt: Mere Preparation Or Intent Not Sufficient].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Attempt: Jury May Not Consider Actions Of Government Agents Or Informers As To Substantial Step Issue
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In considering whether the government has proven that a defendant took a substantial step toward the commission of an offense, you may not consider actions of government agents and informers. That is, while a defendant may aid and abet actions by a citizen and thereby take a substantial step toward the commission of an offense, he may not aid and abet a government informer or government agent as the substantial step to the commission of a crime.
RELATED NCJIC MATERIALS:
See NCJIC 66.2.1 [Attempt: Defense Theory That Conduct Was Mere Preparation Rather Than A Substantial Step Toward Committing The Crime].
See also generally NCJIC Chapter 66: Attempt.
See also NCJIC 83.3.1.3 [Conspiracy With Government Agent Or Feigned Participant As Defense Theory].
See also generally NCJIC 257.3 [Entrapment].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Attempted Possession Of Drugs With Intent To Distribute Requires Proof Of What Defendant’s Intent Would Have Been After Receipt Of Drugs
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Where a defendant is charged with the attempted possession of drugs with intent to distribute, the government must prove two specific intents: First that the defendant intended to possess the drugs; and secondly, that after he possessed them, he would intend to distribute them.
Accordingly, this crime cannot be proven unless the government has proven beyond a reasonable doubt what the defendant's intent would be after he received the drugs.
SAMPLE INSTRUCTION # 2:
Where a defendant is charged with the attempted possession of drugs with intent to distribute, the government must prove two specific intents: First that, at the time of the attempt, the defendant intended to possess the drugs; and secondly, that at that time he intended that after he possessed them, he would intend to distribute them.
The government has not met its burden of proof if all that it has proven is that a defendant at the time of his attempt had the present intent to distribute drugs.
RELATED NCJIC MATERIALS:
See generally NCJIC 66.2 [Attempt: Mere Preparation Or Intent Not Sufficient].
See generally NCJIC 88.5 [Drugs, Controlled Substances: Attempted Possession].
See generally NCJIC 88.6.3 [Possession Of Drugs, Controlled Substances For Sale, Delivery Or Distribution: Defenses And Defense Theories].
See also NCJIC 88.6.3.4 [Possession Of Drugs, Controlled Substances With Intent To Deliver, Distribute Or Sell: Bare Possession Insufficient].
See also NCJIC 88.6.3.5 [Possession Of Controlled Substance With Intent To Sell Or Deliver: Quantity Possessed Not Alone Sufficient To Prove Intent].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Attempted Possession Of Controlled Substance/Illegal Drug: Mere Negotiation Of Purchase Insufficient
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order for the prosecution to prove that a defendant attempted to commit a crime, it must prove beyond a reasonable doubt not only that he had the specific intent to commit that crime, but also that the defendant took a substantial step toward its completion.
Where the crime charged is the attempted possession of drugs by purchase from a government agent or government informer, the mere negotiation to purchase these drugs is not a substantial step toward the completion of the crime.
AUTHORITY:
United States v. Cea, 914 F.2d 881, 887-89 (7th Cir. 1990).
RELATED NCJIC MATERIALS:
See generally NCJIC 66.2 [Attempt: Mere Preparation Or Intent Not Sufficient].
See also NCJIC 66.2.6 [Attempt: Verbal Agreement Not Sufficient].
See also generally NCJIC 88.5 [Drugs, Controlled Substances: Attempted Possession].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Statements Made After Attempt
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In determining whether a defendant's acts demonstrate unequivocally, under all of the circumstances, that (he/she) formed the intent and would commit the crime except for the intervention of another person or some other extraneous factor, you must not consider any statements allegedly made by the defendant after the alleged attempt. An attempt requires that the acts themselves demonstrate unequivocally that the actor formed the requisite intent. Any statements allegedly made by the defendant following the alleged attempt are irrelevant to this determination.
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See also generally NCJIC Chapter 66: Attempt.
See NCJIC 66.2.1 [Attempt: Defense Theory That Conduct Was Mere Preparation Rather Than A Substantial Step Toward Committing The Crime].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Attempts: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The second element of attempt requires the state to prove that the defendant did acts toward the commission of a crime which demonstrate unequivocally, under all the circumstances, that the actor formed that intent and would commit the crime except for the intervention of another person or some other extraneous factor. Thus, in making this determination you must consider only the acts you find the defendant actually performed in furtherance of the attempt.
By way of example, it is though you are watching a video, which depicts merely the accused person's acts without stating what is his intention. Then the video is suddenly stopped, and you are asked to say to what end the defendant's acts were directed. If the state has shown beyond a reasonable doubt that the only reasonable answer to this question is that the defendant intended to commit the crime and would have committed it except for the intervention of another person or some other extraneous factor, then the state has proved this element of the crime. If the state has not proven beyond a reasonable doubt that there is only one reasonably possible answer, then the defendant must be found not guilty.
AUTHORITIES:
Wis. Stat. §939.32; Hamiel v. State, 92 Wis.2d 656, 285 N.W.2d 639, 645 n.4 (1979).
RELATED NCJIC MATERIALS:
See NCJIC 66.2.1 [Attempt: Defense Theory That Conduct Was Mere Preparation Rather Than A Substantial Step Toward Committing The Crime].
See also generally NCJIC Chapter 66: Attempt.