THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Drugs, Controlled Substances: Distribution/Delivery Of Controlled Substances
1. Possession With
Intent to Distribute: Elements Of Offense
2. Attempted Possession:
Prosecution Must Proof Intent To Possess And Distribute
3. Prosecution Must Prove
Defendant’s Intentions
4. Possession With Intent
to Distribute: "Marijuana" Must Be Defined As Cannabis Sativa L
5. Amount Of Controlled
Substance As Proof Of Intent To Deliver
6. Possession With Intent
to Distribute: Relevance Of Paraphernalia
7. Possession With Intent
to Distribute: Factors To Consider
8. Possession With Intent
to Distribute: Not Necessary To Find Defendant Not Guilty
Of Charged Crime
Before Considering Lesser-Included Offense
9. Possession For Own Use
Insufficient To Prove Intent To Distribute
10. Sale Of Controlled Substance
Insufficient To Prove Intent To Deliver/Distribute
11. Jurors Not To Consider Prior
Uncharged Controlled Substance Violations By Defendant
12. Prosecution Must Prove Specific
Intent To Deliver
13. Purchasing Controlled Substance
For Undercover Or Other Agent Insufficient To
Show Defendant As
Distributor/Deliverer
14. "Distribute,"
"Distribution" Defined
15. "Possess With Intent To
Distribute" Defined
16. What Substance Is Said To Be By
Person Selling It; Weight
17. Possession Of Controlled
Substance With Intent To Deliver: Simple Possession As
Lesser Included
Offense
18. Distribution As State Tax Offense
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Possession With Intent to Distribute: Elements Of Offense
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
To sustain the charge of possession of __________ (controlled substance) with intent to distribute, the government must prove the following propositions: first, the defendant knowingly or intentionally possessed __________ (controlled substance); second, the defendant possessed __________ (controlled substance) with the intent to distribute it; and third, the defendant knew the substance was __________ (controlled substance).
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.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you must find the defendant not guilty.
AUTHORITIES:
Federal Criminal Jury Instructions of the Seventh Circuit [04] Possession With Intent to Distribute--Elements (1986).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Hestnes, No. 76-CR-3 (W.D. Wis. 1976).
SAMPLE INSTRUCTION # 2:
To sustain the charge of distributing __________ (controlled substance), the government must prove the following propositions:
First, the defendant distributed __________ (controlled substance)];
Second, the defendant did so knowingly or intentionally; and
Third, the defendant knew the substance was a controlled substance.
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.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you must find the defendant not guilty.
AUTHORITIES:
Federal Criminal Jury Instructions of the Seventh Circuit[04] Possession With Intent to Distribute--Elements (1986) (in the last sentence, "should" changed to "must").
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Attempted Possession: Prosecution Must Proof Intent To Possess And Distribute
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, at the time of the attempt, the defendant intended to possess the drugs; and secondly, that at that time (he/she) intended that after (he/she) possessed them, (he/she) 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/her) attempt had the present intent to distribute 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 the defendant intended to possess the drugs; and secondly, that after (he/she) possessed them, (he/she) 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/she) received the drugs.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Prosecution Must Prove Defendant’s Intentions
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to prove this element, it is necessary that the jury unanimously agree either that the defendant distributed the substances or possessed it with intent to distribute or both. That is, a conviction cannot rest upon a finding in which some of you believe that the defendants only distributed it while other jurors only believe that defendants only possessed it with intent to distribute.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Possession With Intent to Distribute – "Marijuana" Must Be Defined As Cannabis Sativa L
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In Count _____ of this indictment the defendant is charged with [a conspiracy to possess] [possession] with intent to distribute and to distribute marijuana. In considering whether the defendant conspired to possess marijuana with intent to distribute it and to distribute it, you are instructed that the word "marijuana," as it is used in the federal statutes, means only one species of plant, Cannabis sativa L. [A conspiracy to possess] [Possession] with intent to distribute and to distribute that form of marijuana is defined as Nicotiana glauca may be in violation of other federal statutes and may consist of another federal crime, but it is not the crime charged in this indictment. Accordingly, insofar as the defendant is charged with [a conspiracy to possess] [possession of] marijuana with intent to distribute it and to distribute it, the government must prove beyond a reasonable doubt that it was marijuana defined as Cannabis sativa L and not marijuana defined as Nicotiana glauca.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Amount Of Controlled Substance As Proof Of Intent To Deliver
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The mere fact that the defendant was in possession of a substantial amount of a controlled substance does not by itself prove that (he/she) possessed the substance with intent to deliver it. The law recognizes that the amount of a substance is merely one of many factors to be considered in reaching this determination, and it is to be accorded no greater weight than any other such factor.
SAMPLE INSTRUCTION # 2:
If you believe beyond a reasonable doubt that the defendant possessed __________ (controlled substance) on _________ (date), you must still decide whether (he/she) intended to deliver that __________ (controlled substance). In deciding the defendant's intent, you may consider all the evidence, including circumstantial evidence. You are instructed, though, that a small quantity of __________ (controlled substance) may be insufficient in itself to prove intent to deliver.
AUTHORITY:
State v. Wedgeworth, 100 Wis. 2d 514, 302 N.W.2d 810, 819 (1981).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.3.2 [Quantity Issues: Defenses And Defense Theories].
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Possession With Intent to Distribute: Relevance Of Paraphernalia
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Evidence of paraphernalia must be scrutinized with care. You may not infer that controlled substances were possessed with intent to deliver from the mere presence of paraphernalia. Paraphernalia may be associated with the use of controlled substances or they may be associated with the delivery of controlled substances to others or both. You may not draw an inference that paraphernalia are associated with delivery of controlled substances unless the facts underlying that inference are proven to you beyond a reasonable doubt. If there is a question as to how the paraphernalia were used, then you must give the defendant the benefit of the doubt and draw no inference from their presence.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
See also generally NCJIC 88.10 [Drug Paraphernalia].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Possession With Intent to Distribute: Factors To Consider
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The defendant is charged with intending to deliver the controlled substances found at the premises. Such intent may be demonstrated by, for example, evidence of the quantity and monetary value of the substances possessed, the possession of manufacturing implements or paraphernalia, and the activities or statements of the person in possession of the controlled substance prior to and after the alleged violation.
These examples are neither necessary nor sufficient in and of themselves. That is, the mere presence of one or more factors does not by itself constitute proof beyond a reasonable doubt that the defendant possessed a substance with intent to deliver it. Similarly, the mere absence of one or more factors does not by itself constitute proof that the defendant did not possess a substance with intent to deliver it.
These factors are merely examples of the types of evidence which the jury may consider in reaching its decision as to whether any substance which it finds the defendant to have possessed, was possessed by the defendant with intent to deliver it. It is for the jury to determine the weight, if any, to be accorded such evidence.
AUTHORITIES:
161.41(1)(1m), Wis. Stats.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Possession With Intent to Distribute: Not Necessary To Find Defendant Not Guilty Of Charged Crime Before Considering Lesser-Included Offense
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The jury should first consider with respect to each count whether the state has proven beyond a reasonable doubt each of the elements of that offense as I have defined them for you. If you do not unanimously agree that the prosecution has proven all elements of possession with intent to deliver beyond a reasonable doubt, you should consider whether the state has proven the lesser-included offense. That is, it is not necessary that you find the defendant "not guilty" of the crimes charged before you consider whether (he/she) is guilty of the lesser-included offense.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
See also NCJIC 275.3.5 [Order Of Deliberations: Consideration Of Lesser Offense After Finding Defendant Not Guilty Of Greater Offense].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. Possession For Own Use Insufficient To Prove Intent To Distribute
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
One who possesses a controlled substance with the intent to use it (himself/herself) [and with (his/her) guests] does not possess the substance with intent to deliver it.
AUTHORITIES:
United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977).
SAMPLE INSTRUCTION # 2:
You are instructed that where two persons who live together jointly purchase and possess controlled substances, with the intent to share the substances among themselves and no others, they may not be found guilty of possession with intent to distribute those substances.
Accordingly, if the evidence which you have heard in this case gives rise to a reasonable hypothesis that the defendant jointly purchased and possessed the substances found in his residence with others who intended to share them among themselves and no others, you must find the defendant not guilty of the charge of possession of controlled substances with intent to distribute.
AUTHORITY:
United States v. Swiderski, 548 F.2d 445 (2d Cir. 1977).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
State v. Stevens, No. J-9112 (Circuit Court, Milwaukee County, 1982).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Sale Of Controlled Substance Insufficient To Prove Intent To Deliver/Distribute
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order to prove the defendant guilty of the offenses charged in the information, it is necessary that the state prove beyond a reasonable doubt that those specific substances were possessed with that specific intent.
It is not sufficient for the state to prove only that a defendant sold such substances. It must prove that (he/sher) had the intent to deliver these substances before the defendant can be found guilty.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Jurors Not To Consider Prior Uncharged Controlled Substance Violations By Defendant
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Although the evidence presented in this case may, to a reasonable mind, give rise to a suspicion that the defendant has in the past engaged in other violations of controlled substances laws by, for example, delivering controlled substances or even possessing them with intent to deliver on prior occasions, you must at all times bear in mind that the defendant is not charged with those offenses. Not being charged, (he/she) is not on trial in this case at this time with this jury for any such conduct.
RELATED NCJIC MATERIALS:
See generally NCJIC 25.13.7 [Uncharged Acts: Not Relevant To Show Bad Character Or Criminal Propensity Or That Defendant Committed The Charged Act].
See generally NCJIC 25.20 [Uncharged Acts To Prove Propensity (FRE 413-415)].
See generally NCJIC 26.5 [Uncharged Acts To Prove Issues Other Than Propensity].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Prosecution Must Prove Specific Intent To Deliver
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________ (name of defendant) cannot be convicted of possession of a controlled substance with intent to deliver unless the state has proven beyond a reasonable doubt that (he/she) had the specific intent to deliver a controlled substance.
It is not sufficient for the state to prove that a reasonable person in __________’s (name of defendant) position would have had the specific intent or that __________ (name of defendant) probably had the specific intent. The state must prove beyond a reasonable doubt that (he/she) actually had the specific intent to deliver a controlled substance to another person. Specific intent ordinarily cannot be determined by direct testimony. It must be found, if it exists, by evidence of the defendant's conduct and state of mind at the time of the commission of the alleged offense, and other circumstantial evidence.
AUTHORITIES:
State v. Wedgeworth, 100 Wis. 2d 514, 302 N.W.2d 810, 819-20 (1981); State v. Trimbell, 64 Wis. 2d 379, 219 N.W.2d 369, 372-73 (1974).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Criminal Intent.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 45: Criminal Intent.
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Purchasing Controlled Substance For Undercover Agent Insufficient To Show Defendant As Distributor/Deliverer
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
If you believe that the undercover agent asked the defendant to get some cocaine for (him/her) on the occasion mentioned in evidence, and thereupon the defendant undertook to act in the prospective purchaser's behalf rather than on (his/her) own, and in doing so purchased the drugs from a third person and thereafter delivered it to the buyer, the defendant would not be a dispenser or distributor.
AUTHORITY:
United States v. Shoemaker, 429 F.2d 530 (8th Cir. 1970).
SAMPLE INSTRUCTION # 2:
If you find that __________ (name of defendant) was acting as __________ (name of purchaser) agent in acquiring the drugs from __________ (name of third party) and delivering them to __________ (name of purchaser) , then __________ (name of defendant) is not guilty of the crime of delivery of a controlled substance.
In determining whether __________ (name of defendant) was acting on (his/her) own, or as an agent of (his/her) purchaser, you may consider what profit he made, if any, on the transaction, whether (he/she) was able to furnish the drug from (his/her) own supply or required to obtain it from another source, and whether __________ (name of defendant) had any special relationship to __________ (name of purchaser) which would make it more or less likely that (he/she) would act in (his/her) behalf, if requested to do so.
AUTHORITIES:
State v. Osburn, 211 Kan. 248, 505 P.2d 742, 744-47 (1973); State v. Haynes, 5 Kan.App.2d 144, 612 P.2d 1268, 1270-71 (1980); Garcia v. United States, 373 F.2d 806, 809-10 (10th Cir. 1967); United States v. Prince, 264 F.2d 850, 852-53 (3d Cir. 1959).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. "Distribute," "Distribution" Defined
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Distribution is the transfer of possession from one person to another.
AUTHORITY:
Federal Criminal Jury Instructions of the Seventh Circuit [02] Definition of Distribution (1986).
SAMPLE INSTRUCTION # 2:
The term "distribute" simply means to deliver or transfer possession of a controlled substance.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985).
RELATED NCJIC MATERIALS:
See NCJIC 3.2.6 [Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. "Possess With Intent To Distribute" Defined
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The term "possess with intent to distribute" simply means to possess with intent to deliver or transfer possession of a controlled substance to another person.
AUTHORITY:
Fifth Circuit Pattern Jury Instructions 2.87 [Controlled Substances -- Possession With Intent to Distribute] [formerly No. 45].
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985).
RELATED NCJIC MATERIALS:
See NCJIC 3.2.6 [Duty To Define Terms With Specialized/Technical Meaning; No Duty To Define Common Terms].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. What Substance Is Said To Be By Person Selling It; Weight
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
What a substance is represented to be by one offering to sell it in such circumstances is ordinarily entitled to little or no weight.
AUTHORITY:
United States v. Orzechowski, 547 F.2d 978, 983 (7th Cir. 1976).
SAMPLE INSTRUCTION # 2:
Evidence that a person possessed or distributed a substance which he represented to be __________ (controlled substance), but which in fact was not __________ (controlled substance), does not support the charge in this indictment.
AUTHORITY:
Cf. United States v. Orzechowski, 547 F.2d 978, 983 (7th Cir. 1976).
SAMPLE INSTRUCTION # 3:
In considering whether the defendant delivered __________ (other substance) to the ___________ (name of law enforcement officer/agency e.g., agent of the Drug Enforcement Administration) rather than delivering __________ (controlled substance), as he represented the substance to be, you may consider whether you have heard other evidence that the defendant misrepresented illicit drugs to government agents.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Parkison, No. 75-CR-73 (E.D. Wis. 1976).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
17. Possession Of Controlled Substance With Intent To Deliver: Simple Possession As Lesser Included Offense
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The information in this case charges that: [read the charge in the information or complaint].
To this charge in the information, the defendant has entered plea of not guilty which means a denial of every material allegation in the information. The defendant's not guilty plea means that the state must prove every material allegation in the information beyond a reasonable doubt.
If you are not so satisfied, you must find the defendant not guilty of possessing a controlled substance with intent to deliver, and you should consider whether the defendant is guilty of simple possession of a controlled substance, which is a lesser included offense under possession of a controlled substance with intent to deliver.
You should make every reasonable effort to agree unanimously on your verdict on the charge of possession of a controlled substance with intent to deliver before considering the offense of simple possession of a controlled substance. However, if after full and complete consideration of the evidence, you conclude that further deliberation would not result in unanimous agreement on the charge of possession of a controlled substance with intent to deliver, you should consider whether the defendant is guilty of simple possession of a controlled substance
You are not, in any event, to find the defendant guilty of more than one of the foregoing offenses. If you are satisfied beyond a reasonable doubt from the evidence in this case that the defendant committed possession of a controlled substance with intent to deliver, the offense charged in the information, you should find him guilty of that offense, and you must not find him guilty of the other lesser included offense I have submitted to you.
If you are not satisfied beyond a reasonable doubt from the evidence in this case that the defendant committed either one of the offenses I have submitted to you, then you must find the defendant not guilty of both offenses.
AUTHORITIES:
Wis. JI-Criminal 112, modified.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.4 [Drugs, Controlled Substances: Simple Possession].
See generally NCJIC 88.6.4.1 [Possession For Sale Or Distribution: Simple Possession As Lesser Included Offense].
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
18. Distribution As State Tax Offense
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Section __________ of the (state code e.g., Wisconsin Statutes) makes it a crime for a dealer to possess a controlled substance that does not bear evidence that the required tax has been paid.
Before you may find the defendant guilty of this offense, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following four elements were present.
The first element requires that the defendant was a dealer. "Dealer" means a person who unlawfully possesses _______ (quantity/substance e.g., more than seven grams of tetrahydrocannabinols (THC)).
The second element requires that the defendant possessed __________ (controlled substance). __________ (controlled substance) is a controlled substance whose possession is prohibited by law.
"Possessed" means that the defendant knowingly had a substance under (his/her) actual physical control. An item in a person's possession if it is in an area over which the person has control and the person intends to exercise control over the item. It is not required that a person own an item in order to possess it. What is required is that the person exercise control over the item. Possession may be shared with another person. If a person exercises control over an item, that item is in his possession, even though another person may also have similar control.
The third element requires that the defendant knew the substance was a controlled substance. A controlled substance is a substance the possession of which is prohibited by law.
The fourth element requires that the defendant possessed __________ (controlled substance) that did not bear evidence that the required tax had been paid.
Section ______________ imposes a tax on dealers of controlled substances. Section ___________ requires that all controlled substances possessed by dealers bear evidence that the tax has been paid. This evidence is in the form of a stamp provided by the _________ (state agency e.g., Wisconsin Department of Revenue). The fourth element requires that the defendant possessed __________ (controlled substance) that did not have the required tax stamp.
If you are satisfied beyond a reasonable doubt that the defendant was a dealer who possessed __________ (controlled substance), that the defendant knew or believed that the substance was a controlled substance, and that the __________ (controlled substance) did not bear evidence that the required tax had been paid, you should find the defendant guilty.
If you are not so satisfied you must find the defendant not guilty.
SAMPLE INSTRUCTION # 2:
Section __________ of the (state code e.g., Wisconsin Statutes) makes it a crime for a dealer to possess a controlled substance that does not bear evidence that the required tax has been paid.
Before you may find the defendant guilty of this offense, the state must prove by evidence which satisfies you beyond a reasonable doubt that the following four elements were present.
The first element requires that the defendant was a dealer. "Dealer" means a person who unlawfully delivers, or intends to deliver, to another person _______ (quantity/substance e.g., more than seven grams of tetrahydrocannabinols (THC)). "Deliver" means the actual, constructive or attempted transfer from one person to another of a controlled substance, whether or not there is any agency relationship.
The second element requires that the defendant, as a "dealer," possessed more than _______ (quantity/substance).
"Possessed" means that the defendant knowingly had a substance under his actual physical control. An item is in a person's possession if it is in an area over which the person has control and the person intends to exercise control over the item. It is not required that a person own an item in order to possess it. What is required is that the person exercise control over the item. Possession may be shared with another person. If a person exercises control over an item, that item is in (his/her) possession, even though another person may also have similar control.
The third element requires that the defendant knew the substance he possessed as a dealer was a controlled substance. A controlled substance is a substance the possession of which is prohibited by law. __________ (controlled substance) is a controlled substance whose possession is prohibited by law.
The fourth element requires that the defendant delivered __________ (controlled substance) that did not bear evidence that the required tax had been paid.
Section ____________ imposes a tax on dealers of controlled substances. Section___________ requires that all controlled substances possessed by dealers bear evidence that the tax has been paid. This evidence is in the form of a stamp provided by the _________ (state agency e.g., Wisconsin Department of Revenue). The fourth element requires that the defendant possessed __________ (controlled substance) that did not have the required tax stamp.
If you are satisfied beyond a reasonable doubt that the defendant possessed over seven grams of __________ (controlled substance) as a dealer, that the defendant knew or believed that the substance was a controlled substance, and that the THC did not bear evidence that the required tax had been paid, you should find the defendant guilty.
If you are not so satisfied you must find the defendant not guilty.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 88.6 [Drugs, Controlled Substances: Possession For Sale, Delivery Or Distribution].
See also generally NCJIC 88.7 [Drugs, Controlled Substances: Sale, Transportation, Or Distribution].