THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow Collection Table of Contents

Drugs, Controlled Substances: Conspiracy

    1.    Sale Of Contraband: Requirement Of Agreement
    2.    Distribution Conspiracy: Defendant Must Have Knowledge And Specific Intent 
           To Agree To Possess, With Intent To Deliver, Controlled Substance
    3.    Conspiracy To Distribute: Prosecution Must Prove Each Defendant Had Specific 
           Intent To Distribute Drug
    4.    Personal Use Does Not Equate With Conspiracy To Possess Contraband
    5.    Drug Conspiracy: Jurors Should Consider Defendant’s Capacity To Form Intent 
           To Enter Into Distribute Conspiracy
    6.    Drug Conspiracy: Defendant Must Have A Stake In The Venture
    7.    Drug Conspiracy: Prosecution Must Prove Defendant’s Intentions
    8.    Conspiracy To Violate Federal Narcotics Laws: Mere Presence
    9.    Drug Conspiracy: Amount Of Controlled Substance Must Be Measurable
    10.  Drug Conspiracy: Proof Of Identity Of Exhibit; Intent Must Be Drug-Specific
    11.  Drug Conspiracy: Prosecution Must Prove Drug Charged Is Same That 
           Defendant Intended To Possess And Distribute
    12.  Drug Conspiracy: Substance Must Be One Defined In Controlled Substances Act
    13.  Drug Conspiracy: Proof Of Two Crimes Required
    14.  Drug Conspiracy: Distinguishable Target Offenses
    15.  Drug Conspiracy: Aiding And Abetting – Distinguishable Target Offenses
    16.  Drug Conspiracy: Single Act Of Possession Not Sufficient
    17.  Drug Conspiracy: Mere Cooperation Of Seller And Buyer Is Not Sufficient
    18.  Drug Conspiracy: Mere Buyer-Seller Relationship Is Not Conspiracy
    19.  Drug Conspiracy: Mere Act Of Sale Not Proof Of Conspiracy
    20.  Drug Conspiracy: Proof Of Drug Purchase Or Sale Insufficient
    21.  Quantity: Possession Does Not Prove Drug Conspiracy
    22.  Drug Conspiracy: Small Quantity Drug Sales Not Proof Of Predisposition
    23.  Drug Conspiracy: Repeat Drug Sales Do Not, Without More, Prove Conspiracy
    24.  Drug Conspiracy: Mere Knowledge Of Buyer’s Intent To Resell Not Sufficient
    25.  Drug Conspiracy: Purchase/Possession Does Not Prove Membership In Conspiracy
    26.  Drug Conspiracy: Drug Sales And Money Laundering
    27.  Drug Conspiracy: Requirement Of Specific Intent To Possess Controlled Substances
    28.  Drug Conspiracy: Intent To Possess Controlled Substances Must Be Proved
    29.  Conspiracy To Import Controlled Substances
    30.  Conspiracy To Possess/Distribute Controlled Substance
    31.  Conspiracy To Possess/Distribute Distinguished
    32.  Conspiracy To Import Vs. Conspiracy To Distribute
    33.  Aiding And Abetting Importation Of Marijuana vs. Conspiring To Import Marijuana
    34.  Conspiracy: To Possess Marijuana: Use Or Cultivation Insufficient
    35.  Conspiracy: Mere Assistance In purchasing Drugs Is Insufficient

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1.    Sale Of Contraband: Requirement Of Agreement

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. Hernandez-Cabrera, 451 F.2d 1315, 1316 (9th Cir. 1971).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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.    Distribution Conspiracy: Defendant Must Have Knowledge And Specific Intent To Agree To Possess, With Intent To Deliver, Controlled Substance

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The government alleges that the defendant conspired with others to possess and to deliver __________ (controlled substance). It is the nature of the substance which the defendant allegedly agreed to possess, with intent to deliver, which makes this agreement unlawful.

    Thus, while it is not necessary for the government to prove that Exhibit ______ is __________ (controlled substance) in order to make its proof on Count _____ of this indictment, it is necessary in proving this count that the government prove that the defendant had the specific intent to agree to possess, with intent to deliver, __________ (controlled substance).

    [One who agrees to possess a substance which he represents as being __________ (controlled substance), but which he believes to be a lawful substance, may be guilty of some form of fraud, but is not guilty of the conspiracy charged in Count ______. It has been said that one may be guilty of running a red light even though he did not know the light was there, but he may not be found guilty of a conspiracy to run that light unless he knew of the existence of the red light. In this way, knowledge and specific intent are related.]

United States v. Lamon, No. 89-CR-134 (E.D. Wis. 1989) (bracketed material omitted); United States v. Umentum, Case No. 75-CR-103 (E.D. Wis. 1975).

See also THE SHELLOW COLLECTION: Conspiracy.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See also THE SHELLOW COLLECTION: Elements: Criminal Intent.

See NCJIC Chapter 45: Criminal Intent.

See NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 83: Conspiracy.

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.    Conspiracy To Distribute: Prosecution Must Prove Each Defendant Had Specific Intent To Distribute Drug

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In Count(s) _______ of this indictment each of the defendants is charged with being a member of a conspiracy to import and to possess __________ (controlled substance) with the intent to distribute it and to distribute __________ (controlled substance).

    An agreement only becomes a criminal conspiracy under two circumstances: first, an agreement may be a criminal conspiracy if the means of accomplishing the end of the conspiracy are unlawful in themselves. In such a circumstance it is not necessary that the end or object of the conspiracy be unlawful. In the case before the jury the means alleged by the government are importation, possession and distribution. Such conduct in and of itself is not unlawful.

    The second circumstance in which an agreement may be a criminal conspiracy is if lawful means are employed to achieve an unlawful objective. It is this theory upon which the government proceeds in this case. The government alleges that the defendants agreed to import, possess and to distribute a specific controlled substance. It is the nature of the substance which the defendants allegedly agreed to import, possess and to distribute which, under the government's theory, makes these agreements unlawful.

    Thus, while it is not necessary for the government to prove that Exhibit(s) ______ (is/are) the narcotic form of __________ (controlled substance) in order to make its proof on Count(s) ________ of this indictment, it is necessary in proving these counts that the government prove that each of the defendants had the specific intent to agree to import, possess and distribute a [narcotic] drug form of __________ (controlled substance).

    One who agrees to import, possess and to distribute a substance which he represents as being a [narcotic] form of __________ (controlled substance), but [which is in reality another substance] [which he believes to be a lawful substance], may be guilty of some form of fraud, but is not guilty of the offenses charged in Count(s) _____.

    It has been said that one may be guilty of running a red light even though he did not know the light was there, but he may not be found guilty of a conspiracy to run that light unless he knew of the existence of the red light. In this way knowledge and specific intent are related.

United States v. Umentum, 547 F.2d 987 (7th Cir. 1976) (modified).

See also THE SHELLOW COLLECTION: Conspiracy.

See also THE SHELLOW COLLECTION: Elements: Criminal Intent.

See NCJIC Chapter 45: Criminal Intent.

See generally NCJIC Chapter 83: Conspiracy.

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.    Personal Use Does Not Equate With Conspiracy To Possess Contraband

    See THE SHELLOW COLLECTION: Drugs, Controlled Substances: Possession – Personal Use Does Not Equate With Conspiracy To Possess Contraband.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    You should remember that __________ (name of defendant) is not charged with the purchase, sale or possession of __________ (controlled substance). (He/She) is only charged with a conspiracy to distribute __________ (controlled substance) and to possess __________ (controlled substance) with the intent to distribute it.

    You may consider all the evidence you have heard concerning __________’s (name of defendant) mental condition in weighing whether the prosecution has proven beyond a reasonable doubt that __________ (name of defendant) had the capacity to form the intent to enter into this alleged conspiracy.

United States v. United States Gypsum Company, 438 U.S. 422, 435 (1978).

United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981);United States v. Stillman, No. 80-133-Erie (W.D. Pa. 1981); United States v. Napue, No. 84-CR-155 (N.D. Ill. 1984).

See also THE SHELLOW COLLECTION: Conspiracy.

See also THE SHELLOW COLLECTION: Elements: Criminal Intent.

See NCJIC Chapter 45: Criminal Intent.

See generally NCJIC Chapter 83: Conspiracy.

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

6.     Drug Conspiracy: Defendant Must Have A Stake In The Venture

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    A person who has no stake in a venture which has as its object the purchase of drugs is not a conspirator of those who sought to purchase the drug. In order for the government to prove that a defendant was a conspirator with others who sought to purchase and possess drugs, it is necessary for the government to prove beyond a reasonable doubt that such person's fortunes would rise or fall with the success or failure of the conspiracy.

United States v. Falcone, 109 F.2d 579 (2d Cir. 1940); United States v. Blankenship, 970 F.2d 283, 286 (7th Cir. 1992); but see United States v. Curley, 55 F.3d 254, 257 (7th Cir. 1995) ["stake in venture" not required].

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

See also NCJIC 83.3 [Conspiracy: Defenses And Defense Theories].

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

7.    Drug Conspiracy: Prosecution Must Prove Defendant’s Intentions

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In Count _____ of this indictment the defendant is charged with a conspiracy to engage in transactions involving __________ (controlled substance). It is necessary for the proof of that count that the government prove that the defendant intended to conspire to engage in transactions involving __________ (controlled substance).

United States v. Umentum, et al., No. 75-CR-103 (E.D. Wis. 1976), modified; United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979), modified..

See also THE SHELLOW COLLECTION: Conspiracy.

See also THE SHELLOW COLLECTION: Elements: Criminal Intent.

See NCJIC Chapter 45: Criminal Intent.

See generally NCJIC Chapter 83: Conspiracy.

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.    Conspiracy To Violate Federal Narcotics Laws: Mere Presence

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976).

SAMPLE INSTRUCTION # 2:

    It is __________’s (name of defendant) theory of this case that (he/she) did not conspire with anyone to violate the federal narcotics laws, but was instead merely present while others engaged in conduct which may have constituted such violations.

    If the evidence which you have heard in support of __________’s (name of defendant) theory of the case creates a reasonable doubt as to (his/her) guilt, then you must acquit (him/her).

United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC 64.2 [Accomplice Liability: Mere Presence Insufficient].

See generally NCJIC Chapter 83: Conspiracy.

See generally NCJIC 83.3.6.12 [Conspiracy: Mere Presence Insufficient To Prove Membership].

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

9.    Drug Conspiracy: Amount Of Controlled Substance Must Be Measurable Of Another

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The evidence need not establish that the amount of __________ (controlled substance) contemplated by the alleged conspiracy was the amount mentioned in the indictment, but only that a measurable amount of __________ (controlled substance) was in fact the subject of the conspiracy.

United States v. Wornock, No. 76-CR-549 (N.D. Ill. 1977).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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.    Drug Conspiracy: Proof Of Identity Of Exhibit; Intent Must Be Drug-Specific

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In Count I of this indictment the defendants are charged with a conspiracy to engage in transactions involving __________ (controlled substance e.g., cocaine); in Count II they are charged with the transaction itself.

    Thus, although the government need not prove the identity of Government Exhibit _____ as part of its proof of Count I, it is necessary for the proof of that count that the government prove that each of the defendants intended to conspire to engage in transactions involving an ______ (item, e.g., unlawful isomer of cocaine) and to that extent the proof or lack of proof of identity of Government Exhibit ______ may be considered by you.

United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976).

    In Count I of this indictment the defendant is charged with a conspiracy to engage in transactions involving __________ (items, e.g., marijuana and amphetamine). It is necessary for the proof of that count that the government prove that the defendant intended to conspire to engage in transactions involving marijuana and amphetamine.

United States v. Umentum, et al., No. 75-CR-103 (E.D. Wis. 1976), modified; United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979), modified.

United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976) (modified for heroin).

See also THE SHELLOW COLLECTION: Conspiracy.

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Substance Testing/Identification Instructions.

See generally NCJIC Chapter 83: Conspiracy.

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.    Drug Conspiracy: Prosecution Must Prove Drug Charged Is Same That Defendant Intended To Possess And Distribute

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In Count _____ of this indictment __________ (name of defendant) is charged with a conspiracy to possess and distribute __________ (controlled substance). In order to prove __________ (name of defendant) guilty of this conspiracy the government must prove beyond a reasonable doubt that it was __________’s (name of defendant) intent not only to join this conspiracy, but also to possess and distribute __________ (controlled substance). If all that the government has proven is that __________ (name of defendant) conspired to possess and distribute some drug, but has not proven beyond a reasonable doubt that this drug was __________ (controlled substance), then it has not proven the charge alleged in Count _____ and __________ (name of defendant) must be found not guilty of that charge.

    In Count _____ the defendant is charged with a conspiracy to distribute and to possess with intent to distribute two specific substances: __________ (controlled substances e.g., marijuana and amphetamine). One of the ways that the government might attempt to prove this offense is for it to prove that it was one of the objects of this conspiracy to distribute __________ (controlled substance e.g., amphetamine). In such proof, before you could return a verdict of guilty, the government would be required to prove beyond a reasonable doubt that the defendant had the specific intent to distribute __________ (controlled substance e.g., amphetamine) and not some other controlled substance. In this connection, I must inform you that if the government has merely proven that it was the specific intent of the defendant to distribute or to possess with intent to distribute either __________ (controlled substance e.g., amphetamine or methamphetamine), then you cannot find the defendant guilty of this crime. While it is a crime for a person to conspire to possess with intent to distribute or to distribute __________ (controlled substance e.g., methamphetamine), this is not the crime charged in the indictment and the Constitution of the United States does not permit a defendant to be found guilty of any offense different from the one charged in the indictment.

    Considering the evidence on Count _____, you have heard testimony concerning what various persons believed to be the composition of the __________ (controlled substance e.g., small white pills with crosses on them). [The belief of such persons is not an element of the offense.] The element of the offense which concerns the identity or composition of [this] [these] _____ (item, e.g., pills) is the intent of the defendant. If it was the intent of the defendant to agree to distribute __________ (controlled substance e.g., amphetamines), then an intent charged in Count _____ has been proven; if, on the other hand, it was the intent of the defendant to agree to distribute __________ (different controlled substance, e.g., methamphetamine), then the government's proof has failed. You may not speculate on the intent of the defendant. It must be proven, as any other element of the offense, and, the defendant has no burden of proving that (his/her) intent was to distribute __________ (different controlled substance, e.g., methamphetamine) rather than __________ (controlled substance e.g., amphetamines).

United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982) [modified - bracketed material deleted - over objection].

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Substance Testing/Identification Instructions.

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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.    Drug Conspiracy: Substance Must Be One Defined In Controlled Substances Act

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The defendant is charged in Count _____ with being a member of a conspiracy to possess __________ (controlled substanc(e)) with the intent to distribute such substance(s) and to distribute such __________ (controlled substance).

    It is a violation of this statute for persons to agree to possess and to distribute __________ (controlled substance); it is not a violation of this statute for persons to agree to possess and distribute substances which are not covered by the Controlled Substances Act.

    Before the defendant can be found guilty of Count _____, the government must prove beyond a reasonable doubt that it was the specific intent of the defendant to agree with others to possess with intent to distribute substances which are covered by the Controlled Substances Act.

United States v. Umentum, et al., No. 75-CR-103 (E.D. Wis. 1976), modified; United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979), modified; United States v. Kramer, No. 81-CR-106 (E.D. Wis.1982).

    Each of the defendants is charged in Count ____ with being a member of a conspiracy to possess __________ (controlled substance) with the intent to distribute it and to distribute such __________ (controlled substance).

    It is a violation of this statute for persons to agree to possess and to distribute the unlawful form of __________ (controlled substance) covered by the Controlled Substances Act; it is not a violation of this statute for persons to agree to possess and to distribute lawful forms of __________ (substance) which are not covered by the Controlled Substances Act.

    Thus, while the government need not prove as an element of Count _____ that its exhibit _____ was an unlawful form of __________ (controlled substance), nonetheless, before any defendant can be found guilty of Count _____, the government must prove that it was the specific intent of that defendant to agree with others to possess with intent to distribute and to distribute the unlawful form of __________ (controlled substance) which is covered by the Controlled Substances Act.

United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976).

See also THE SHELLOW COLLECTION: Drugs, Controlled Substances: Substance Testing/Identification Instructions.

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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.    Drug Conspiracy: Proof Of Two Crimes Required

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In order for the government to prove that __________ (name of defendant) is guilty of the conspiracy charged in this indictment, the government first must prove beyond a reasonable doubt that (he/she) intentionally entered into an agreement with one or more other guilty persons. However, while proof of such an agreement is necessary for a finding of conspiracy, it is not sufficient.

    When sale or purchase of __________ (controlled substance) is the substantive crime allegedly committed by the conspirators, the sale or purchase agreement itself is not the charged crime of conspiracy.

    What is required for a conspiracy conviction in such a case is proof beyond a reasonable doubt that the defendant entered into another agreement to commit some crime other than the crime constituted by the sales agreement itself.

United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993) (en banc) (slip op. at 6-7).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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.    Drug Conspiracy: Distinguishable Target Offenses

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    A conspiracy to import __________ (controlled substance e.g. marijuana) is a different crime from a conspiracy to possess __________ (controlled substance e.g. marijuana) with intent to distribute it. Merely because a defendant has been proven to be a member of one of these conspiracies does not necessarily mean that (he/she) has been proven to be a member of the other. Each of these conspiracies requires a different intent. Each has as an element a different agreement. While proof of one may be evidence of the other, it is not proof of the other conspiracy.

Albernaz v. United States, 450 U.S. 333 (1981).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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.    Drug Conspiracy: Aiding And Abetting – Distinguishable Target Offenses

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    Aiding and abetting the importation of (controlled substance e.g. marijuana) is a different crime from conspiring to import marijuana. A conspiracy to import (controlled substance e.g. marijuana) has as an essential element a specific agreement between the defendant and others the purpose or object of which is to import (controlled substance e.g. marijuana) into the United States. Aiding and abetting requires that the defendant commit some act to assist in the importation, or be willing to commit such an act if called upon to do so. In addition, the defendant must know that (his/her) act is assisting or will assist someone in the importation of (controlled substance e.g. marijuana).

United States v. Greer, 467 F.2d 1064, 1071 (7th Cir. 1972), cert. denied, 410 U.S. 929 (1973); Nye & Nissen v. United States, 336 U.S. 613, 620 (1948).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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.    Drug Conspiracy: Single Act Of Possession Not Sufficient

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The single act of possession of __________ (controlled substance) is insufficient evidence on which to base a conviction for conspiracy to distribute that drug.

United States v. Quintana, 508 F.2d 867, 879-80 (5th Cir. 1975).

See also THE SHELLOW COLLECTION: Conspiracyy.

See generally NCJIC Chapter 83: Conspiracy.

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.    Drug Conspiracy: Mere Cooperation Of Seller And Buyer Is Not Sufficient

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. Boyer, 84 F. Supp. 905, 906 (E.D. Pa. 1949), citing United States v. Zeuli, 137 F.2d 845, 846-47 (2d Cir. 1943), and United States v. Falcone, 311 U.S. 205.

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC 64.6.7 [Buyer-Seller Relationship: Insufficient For Accomplice Liability].

See generally NCJIC Chapter 83: Conspiracy.

See generally NCJIC 83.3.2 [Buyer-Seller Relationship Is Not A Conspiracy].

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See generally NCJIC 88.1.3 [Defense Theory That Buyer-Seller Relationship Is Not A Drug Conspiracy].

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.    Drug Conspiracy: Mere Buyer-Seller Relationship Is Not Conspiracy

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

AUTHORITIES:

United States v. Turner, 93 F.3d 276, 285 (7th Cir. 1996)

United States v. Pedigo, 12 F.3d 618 (7th Cir. 1993); United States v. Baker, 905 F.2d 1100 (7th Cir.), cert. denied, 498 U.S. 876 (1990).

United States v. Curley, Case No. 93-CR-86-S (W.D. Wis.).

    In considering whether the government has proven beyond a reasonable doubt that __________ (name of defendant) conspired with anyone to distribute __________ (controlled substance), you should bear in mind that, as a matter of law, a seller does not conspire with (his/her) buyer. The reason for this is that in order for a conspiracy to be formed there must be a unified agreement which the conspirators have made. In the case of a buyer and a seller, one has agreed to buy and the other has agreed only to sell and, accordingly, a single agreement has not been formed.

United States v. Roth, 777 F.2d 1200 (7th Cir. 1985); United States v. Bascaro, 742 F.2d 1335, 1359 (11th Cir. 1984).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC 64.6.7 [Buyer-Seller Relationship: Insufficient For Accomplice Liability].

See generally NCJIC Chapter 83: Conspiracy.

See generally NCJIC 83.3.2 [Buyer-Seller Relationship Is Not A Conspiracy].

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See generally NCJIC 88.1.3 [Defense Theory That Buyer-Seller Relationship Is Not A Drug Conspiracy].

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

19.    Drug Conspiracy: Mere Act Of Sale Not Proof Of Conspiracy

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. Pedigo, 12 F.3d 618, 626 (7th Cir. 1993).

United States v. Kapp, 781 F.2d 1008 (3d Cir. 1986); United States v. Stillman, No. 80-133-Erie (W.D. Pa. 1981); United States v. Ford, 324 F.2d 950, 952 (7th Cir. 1963).

United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982) [bracketed material added]; United States v. Skillman, 442 F.2d 542, 547 (8th Cir. 1971); United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).

    If the evidence merely shows that one of the defendants sold __________ (controlled substance) to another one of the defendants, this does not amount to a conspiracy, even though these defendants may have engaged in numerous purchases and sales between each other.

    Even undisputed evidence that one defendant made frequent purchases of __________ (controlled substance) from another defendant does not necessarily compel the conclusion that they had entered into a conspiracy.

United States v. Mims, 92 F.3d 461, 463 (7th Cir. 1996).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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

20.    Drug Conspiracy: Proof Of Drug Purchase Or Sale Insufficient

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

AUTHORITIES: United States v. Meyer, 149 F.3d 535, 541 (7th Cir. 1998); amended157 F.3d 1067 (7th Cir. September 10, 1998) (opinion at 1074) ["The government concedes, and we agree, that the proposed instruction represents a correct statement of the law in this circuit."]; See United States v. Lechuga, 994 F.2d 346, 349 (7th Cir. 1993) (en banc); United States v. Meyer, 1998 W.L. 596674 (September 10, 1998, opinion at page 7), citing United States v. Thomas, 150 F.3d 743, 744-745 (7th Cir. 1998).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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

21.    Quantity: Possession Does Not Prove Drug Conspiracy

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    Possession of a significant quantity of illegal drugs does not, standing alone, necessarily support the conclusion that the possessor's activity was conspiratorial in nature. As a consequence, the evidence that __________ (name of person) and __________ (name of person) possessed substantial quantities of __________ (controlled substance), standing alone, does not prove that they conspired with __________ (name of defendant).

United States v. Lamon, 930 F.2d 1183, 1192 (7th Cir. 1991).

United States v. Lamon, 930 F.2d 1183, 1192 (7th Cir. 1991).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See generally NCJIC 88.3.1 [Drugs, Controlled Substances: Miscellaneous Quantity Issues].

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

22.    Conspiracy: Small Quantity Drug Sales Not Proof Of Predisposition

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    Evidence that __________ (name of defendant) may have sold small quantities of __________ (controlled substance) in ______ (year) is not evidence that (he/she) is predisposed to sell __________ (controlled substance) and is not to be considered by the jury in its determination whether the prosecution has proven beyond a reasonable doubt that __________ (name of defendant) is guilty of conspiracy to sell __________ (controlled substance).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See generally NCJIC 88.3.1 [Drugs, Controlled Substances: Miscellaneous Quantity Issues].

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

23.    Drug Conspiracy: Repeat Drug Sales Do Not, Without More, Prove Conspiracy

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. Thomas, 150 F.3d 743, 743-46 (7th Cir. 1998).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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

24.    Drug Conspiracy: Mere Knowledge Of Buyer’s Intent To Resell Not Sufficient

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The mere sale of __________ (controlled substance) from a seller to a buyer does not prove conspiracy between that seller and (his/her) buyer to manufacture and distribute __________ (controlled substance), for there is no agreement between the two on objectives; the seller intends only to sell, and the buyer only to receive. The seller may know of the buyer's intention to resell, but this knowledge alone does not prove that the seller joined the buyer in any agreement to distribute the __________ (controlled substance) further.

United States v. Lechuga, 994 F.2d 346 (7th Cir. 1993) (en banc); United States v. Schmidt, 922 F.2d 1365, 1369 (8th Cir. 1991); United States v. Prieskom, 658 F.2d 631, 633 (8th Cir. 1981) (both recognizing the buyer-seller rule); but see United States v. Hamell, 931 F.2d 466, 470 (8th Cir. 1991) (denying that the Eighth Circuit ever has adopted that rule); see also United States v. Lyon, 959 F.2d 701 (8th Cir. 1991) (noting that a buyer-seller instruction was given).

United States v. Greene, Criminal No. 92-32 (S.D. Iowa 1992).

See also THE SHELLOW COLLECTION: Conspiracy.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 83: Conspiracy.

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

25.    Drug Conspiracy: Purchase/Possession Does Not Prove Membership In Conspiracy

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    It is defendant __________’s (name of defendant) theory of this case that, regardless whether __________ (name of third party) was an agent of the United States government or believed he acted as an agent of the United States government, the evidence has merely shown that __________ (name of defendant) purchased __________ (controlled substance e.g., heroin) from __________ (name of third party) and (his/her) associates and was neither a member of the group which imported the __________ (controlled substance e.g., heroin), nor of the group which sold the __________ (controlled substance e.g., heroin) to (him/her). If the evidence you have heard in support of __________’s (name of defendant) theory of this case creates in your mind a reasonable doubt that he was a member of the conspiracies of which the government alleges __________ (name of third party) and the other defendants were members, then you must find (him/her), as a matter of law, not guilty of Counts I and II.

    The defendant __________ (name of defendant) is not on trial for either the purchase of __________ (controlled substance e.g., heroin) nor for the possession of __________ (controlled substance e.g., heroin) which the government alleges that (he/she) may have purchased from other co-defendants. Accordingly, if all the government has proven against defend __________ (controlled substance e.g., heroin) heroin from other defendants, purchased such __________ (controlled substance e.g., heroin) from them, had such __________ (controlled substance e.g., heroin) delivered to him, and paid for that __________ (controlled substance e.g., heroin), the government has proven neither of the charges against __________ (name of defendant) alleged in this indictment and (he/she) must be acquitted of these charges.

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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

26.    Drug Conspiracy: Drug Sales And Money Laundering

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    __________ (name of defendant) can only be found guilty of laundering money if the prosecution has proved beyond a reasonable doubt that the money which (he/she) spent was derived from (his/her) sales of __________ (controlled substance) or sales of __________ (controlled substance) by __________ (name of third party), which the prosecution has proven beyond a reasonable doubt, conspired with __________ (name of defendant).

__________ (name of defendant) does not have the burden of proving that the money (he/she) spent was derived from a lawful source. The prosecution has the burden of proving that the money in question was received from an unlawful source.

    In order to convict __________ (name of defendant) of money laundering, the prosecution must prove beyond a reasonable doubt that the payment (he/she) made for __________ (item purchased) was made with the proceeds of drug sales by a member of a conspiracy of which __________ (name of defendant) was proven to be a member beyond a reasonable doubt and not from receipts from a lawful source, [e.g., ______________].

    In order to convict __________ (name of defendant) of money laundering, the prosecution must prove beyond a reasonable doubt that the deposits (he/she) made to ______________'s checking account were proceeds of drug sales by a member of a conspiracy of which __________ (name of defendant) was proven to be a member beyond a reasonable doubt and not from receipts from a lawful source, [e.g., ______________].

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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

27.    Drug Conspiracy: Requirement Of Specific Intent To Possess Controlled Substances

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The defendant is charged in with being a member of a conspiracy to _________ (e.g., possess marijuana and amphetamine) with the intent to ____________ (e.g., distribute such substances and to distribute such substances).

    It is a violation of this statute for persons to agree to ________ (e.g., possess and to distribute marijuana or amphetamine); it is not a violation of this statute for persons to agree to ___________ (e.g., possess and distribute) substances which are not covered by the Controlled Substances Act.

    Before the defendant can be found guilty, the government must prove beyond a reasonable doubt that it was the specific intent of the defendant to agree with others to ___________ (e.g., possess with intent to distribute) substances which are covered by the Controlled Substances Act.

United States v. Kramer, Case No. 81-CR-106 (E.D. Wis. 1982); United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976) [modified]; United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979) [modified].

See also THE SHELLOW COLLECTION: Conspiracy.

See also THE SHELLOW COLLECTION: Elements: Criminal Intent.

See NCJIC Chapter 45: Criminal Intent.

See generally NCJIC Chapter 83: Conspiracy.

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

28.    Drug Conspiracy: Intent To Possess Controlled Substances Must Be Proved

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    __________ (name of defendant) is charged with a conspiracy to possess and distribute __________ (controlled substance). In order to prove the defendant guilty of this conspiracy the government must prove beyond a reasonable doubt that it was the defendant's intent not only to join this conspiracy, but also to possess and distribute __________ (controlled substance). If all that the government has proven is that the defendant conspired to possess and distribute some drug, but has not proven beyond a reasonable doubt that this drug was __________ (controlled substance), then it has not proven the charge alleged and the defendant must be found not guilty of that charge.

See also THE SHELLOW COLLECTION: Conspiracy.

See also THE SHELLOW COLLECTION: Elements: Criminal Intent.

See NCJIC Chapter 45: Criminal Intent.

See generally NCJIC Chapter 83: Conspiracy.

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

29.    Conspiracy To Import Controlled Substances

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In Count ____ of this indictment [each of] the defendant(s) is charged with being a member of a conspiracy to import __________ (controlled substance).

    An agreement only becomes a criminal conspiracy under two circumstances: first, an agreement may be a criminal conspiracy if the means of accomplishing the end of the conspiracy are unlawful in themselves. In such a circumstance it is not necessary that the end or object of the conspiracy be unlawful. In the case before the jury the means alleged by the government is importation. An act of importation, in and of itself, is not unlawful.

    The second circumstance is which an agreement may be a criminal conspiracy is if lawful means are employed to achieve an unlawful objective. It is this theory upon which the government proceeds in this case. The government alleges that the defendants agreed to import a specific controlled substance. It is the nature of the substance which the defendants allegedly agreed to import which, under the government's theory, makes this agreement unlawful. [ It is necessary in proving this count that the government prove that the defendant had the specific intent to agree to ____________ (crime, e.g., import controlled substances).

    Thus, while it is not necessary for the government to prove that Exhibit _____ is the ____________ (type of controlled substance, e.g., narcotic form of heroin) in order to make its proof on Count _____, it is necessary in proving this Count that the government prove that each of the defendants had the specific intent to agree to import the ____________ (type of controlled substance, e.g., narcotic form of heroin).

    One who agrees to import a substance, which he represents as being a ____________ (type of controlled substance, e.g., narcotic form of heroin), but which is in reality another substance, may be guilty of some form of fraud, but is not guilty of the offense charged in Count _____.

United States v. Umentum, Case No. 75-CR-103 (E.D. Wis. 1976) (modified).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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

30.    Conspiracy To Possess/Distribute Controlled Substance

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In Count ___ of this indictment each of the defendants is charged with being a member of a conspiracy to possess __________ (controlled substance) with the intent to distribute it and to distribute __________ (controlled substance).

    An agreement only becomes a criminal conspiracy under two circumstances: first, an agreement may be a criminal conspiracy if the means of accomplishing the end of the conspiracy are unlawful in themselves. In such a circumstance it is not necessary that the end or object of the conspiracy be unlawful. In the case before the jury the means alleged by the government are possession and distribution. Such conduct in and of itself is not unlawful.

    The second circumstance in which an agreement may be a criminal conspiracy is if lawful means are employed to achieve an unlawful objective. It is this theory upon which the government proceeds in this case. The government alleges that the defendants agreed to possess and distribute a controlled substance. It is the nature of the substance which the defendants allegedly agreed to possess and to distribute which, under the government's theory, makes this agreement unlawful.

    Thus, while it is not necessary for the government to prove that Exhibit ___ is an unlawful form of __________ (controlled substance) in order to make its proof on Count ___ of this indictment, it is necessary in proving this Count that the government prove that each of the defendants had the specific intent to agree to possess and distribute an unlawful form of __________ (controlled substance).

    One who agrees to possess and to distribute a substance which he represents as being an unlawful form of __________ (controlled substance), but which he believes to be a lawful substance, may be guilty of some form of fraud, but is not guilty of the offense under which Count ___ is brought.

    It has been said that one may be guilty of running a red light even though he did not know the light was there, but he may not be found guilty of a conspiracy to run that light unless he knew of the existence of the red light. In this way knowledge and specific intent are related.

United States v. Umentum, 547 F.2d 987 (7th Cir. 1976).

    The government alleges that the defendant conspired with others to possess and to deliver __________ (controlled substance). It is the nature of the substance which the defendant allegedly agreed to possess, with intent to deliver, which makes this agreement unlawful.

    Thus, while it is not necessary for the government to prove that Exhibit _____ is of __________ (controlled substance) in order to make its proof on Count _____ of this indictment, it is necessary in proving this count that the government prove that the defendant had the specific intent to agree to possess, with intent to deliver,__________ (controlled substance).

    [One who agrees to possess a substance which he represents as being __________ (controlled substance), but which he believes to be a lawful substance, may be guilty of some form of fraud, but is not guilty of the conspiracy charged in Count _____. It has been said that one may be guilty of running a red light even though he did not know the light was there, but he may not be found guilty of a conspiracy to run that light unless he knew of the existence of the red light. In this way, knowledge and specific intent are related.]

United States v. Lamon, No. 89-CR-134 (E.D. Wis. 1989) (bracketed material omitted); United States v. Umentum, Case No. 75-CR-103 (E.D. Wis. 1975).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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

31.    Conspiracy To Possess/Distribute Distinguished

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    You should remember that the defendant is not charged with the purchase, sale or possession of __________ (controlled substance). (He/She) is only charged with a conspiracy to distribute __________ (controlled substance) and to possess __________ (controlled substance) with the intent to distribute it.

    You may consider all the evidence you have heard concerning the defendant's mental condition in weighing whether the prosecution has proved beyond a reasonable doubt that the defendant had the capacity to form the intent to enter into this alleged conspiracy.

United States v. United States Gypsum Company, 438 U.S. 422, 435 (1978).

United States v. Linton, No. CR-R-80-24-ECR (D.C. Nev. 1981); United States v. Napue, No. 84-CR-155 (N.D. Ill. 1984); United States v. Stillman, No. 80-133-Erie (W.D. Pa. 1981).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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

32.    Conspiracy To Import vs. Conspiracy To Distribute

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    A conspiracy to import __________ (controlled substance) is a different crime than a conspiracy to possess __________ (controlled substance) with intent to distribute it. Merely because a defendant has been proven to be a member of one of these conspiracies does not necessarily mean that (he/she) has been proven to be a member of the other. Each of these conspiracies requires a different intent. Each has as an element a different agreement. While proof of one may be evidence of the other, it is not proof of the other conspiracy.

Albernaz v. United States, 450 U.S. 333 (1981).

See also THE SHELLOW COLLECTION: Conspiracy.

See generally NCJIC Chapter 83: Conspiracy.

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

33.    Aiding And Abetting Importation Of Marijuana vs. Conspiring To Import Marijuana

    See THE SHELLOW COLLECTION: Drugs, Controlled Substances: Importation Of Controlled Substances – Aiding And Abetting Importation Of Marijuana vs. Conspiring To Import Marijuana.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

    Evidence that ______________ (defendant) smoked marijuana or even that he attempted to cultivate marijuana in his home is not evidence either that he conspired to possess nor attempted to possess the government's marijuana on _____________ (alleged date).

    That is, merely because someone may have either smoked or grown marijuana is not proof that on a given date that person conspired to purchase marijuana.

See also THE SHELLOW COLLECTION: Conspiracy.

RELATED NCJIC MATERIALS:

See NCJIC 88.4.3.7 [Possession Of Drugs, Controlled Substances: Ingestion/Use Alone Not Sufficient To Prove Possession].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

ALERT:  Carefully review the Caveats and Disclaimers before using these materials.

    Merely because a defendant has associated with persons who purchased drugs or has assisted such persons in their purchase does not mean that this defendant has been proven to be a conspirator.

See also THE SHELLOW COLLECTION: Conspiracy.

RELATED NCJIC MATERIALS:

See NCJIC 83.3.2 [Buyer-Seller Relationship Is Not A Conspiracy].

See also NCJIC 43.1 [Mere Association Insufficient For Criminal Liability].

See also NCJIC 83.3.6.5 [Conspiracy: Defense Theory That Knowing Association Is Insufficient].