THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Collection Table of Contents
Drugs, Controlled Substances: Possession
1. Momentary Possession
2. Possession Defined: Power And Authority
3. Possession Defined: Ownership Is Not Possession
4. Possession Defined: Requirement Of Appreciable Ability To Guide The
Destiny
Of The Drug
5. Drugs, Controlled Substance: Payment For Drugs Does Not Establish
Possession
6. Illegal Drugs: No Crime Of Aiding And Abetting Attempted Possession
7. Ownership/Possession
8. Personal Use Does Not Equate With Conspiracy To Possess Contraband
9. "Possession" Defined; Transitory Possession
10. Mere Presence Of Controlled Substance Is Not Possession
11. Mere Ownership Of Property Does Not Establish Possession
12. Constructive Possession
13. Mere Proximity Or Accessibility To Controlled Substance Is Not Possession
14. Residency Does Not Establish Possession
15. Knowledge Of And Proximity To Drug Insufficient To Support Finding Of
Possession
Without Power To Exercise Dominion And Control
16. Possession As Physical Control
17. Joint Possession
18. Actual Possession And Constructive Possession
19. Unwitting Possession
20. Person Who Brings Together Seller And Buyer Not In Possession
21. Jurisdiction And Possession
22. Possession: Third Party Access
23. Constructive Possession: Defendant Setting Price Or Assuring Delivery
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
1. Momentary Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A person who has dominion and control over a drug for only a very short period of time is not in possession of the drug. That is, a person who only fleetingly or momentarily has control over a drug is not a possessor of that drug.
For this reason, a defendant who intends that his control over a drug will only be momentary and fleeting and who attempts to secure such control, has not attempted to possess the drug.
SAMPLE INSTRUCTION # 2:
Momentary possession of drugs without evidence of control is not sufficient to prove actual possession.
AUTHORITIES:
United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995); United States v. Wainer, 170 F.2d 603, 606 (7th Cir. 1948); United States v. Gallagher, 565 F.2d 981, 984 (7th Cir. 1977); United States v. Landry, 257 F.2d 425, 431 (7th Cir. 1958).
SAMPLE INSTRUCTION # 3:
To possess means to have actual control, care and management of, and not a passing control, fleeting and shadowy in its nature.
AUTHORITIES:
United States v. Nitti, 444 F.2d 1056, 1060 (7th Cir. 1971); United States v. Wainer, 170 F.2d 603, 606 (7th Cir. 1948) (J. Minton); Pearson v. United States, 192 F.2d 681, 892 (6th Cir.).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Kramer, 81-CR-106 (E.D. Wis. 1982); United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).
SAMPLE INSTRUCTION # 4:
The momentary physical holding of a controlled substance, standing alone, does not necessarily constitute control or possession of it. [A person may, for example, momentarily handle a controlled substance for the purpose of inspecting it or disposing of it without necessarily possessing it. Possession cannot be established unless the state proves beyond a reasonable doubt that the defendant exercised actual control over the controlled substance or had the authority or ability to exercise control over the controlled substance and the intent to do so.]
AUTHORITY:
United States v. Kitchen, 57 F.3d 516 (7th Cir. 1995).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
2. Possession Defined: Power And Authority
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In order for the government to prove that ____________ (name of accused) attempted to possess the ____________ (object allegedly possessed) it must prove beyond a reasonable doubt that ____________ (name of accused) intended to exercise dominion and control over the ____________ (object allegedly possessed) and that he attempted to do so.
A person exercises dominion and control over an object when he or she has the power and authority to act with respect to the object and to make decisions concerning it.
SAMPLE INSTRUCTION # 2:
In order to prove possession the prosecution must offer evidence showing the defendant's authority with respect to the drugs.
AUTHORITIES:
United States v. Herrera, 757 F.2d 144 (7th Cir. 1985), cited in United States v. Windom, 19 F.3d 1190, 1200 (7th Cir. 1994).
RELATED NCJIC MATERIALS:
See NCJIC 43.3 [Power And Intent Insufficient For Criminal Liability].
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.1 [Possession: Miscellaneous Issues And Defenses].
See also NCJIC 56.2 [Possession: Sufficiency Of Proof].
See NCJIC 56.2.2 [Power And Intent Is Not Enough To Establish Criminal Liability].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
3. Possession Defined: Ownership Is Not Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
In order for the government to prove that a defendant attempted to possess marijuana it is necessary for it to prove beyond a reasonable doubt that such defendant intended to exercise dominion and control over the drug and that he attempted to do so.
If all that the evidence has shown is that a defendant paid for the purchase of a drug, that defendant may have attempted only to be the owner of the drug and not its possessor. Ownership and possession are not the same. Merely because a person owns drugs does not necessarily mean that (he/she) possesses the drugs; similarly, merely because a person possesses drugs does not mean that (he/she) is the owner of the drug. Possession is a matter of control; ownership is a matter of title.
AUTHORITY:
United States v. Landry, 257 F.2d 425 (7th Cir. 1958).
SAMPLE INSTRUCTION # 2:
Ownership is not proof of possession any more than possession is proof of ownership.
AUTHORITIES:
United States v. Landry, 257 F.2d 425, 431-32 (7th Cir. 1958).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See also NCJIC 56.2.5 [Possession: Ownership Or Occupancy Not Sufficient].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
4. Possession Defined: Requirement Of Appreciable Ability To Guide The Destiny Of The Drug
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order for an individual constructively to possess property, he must knowingly hold the power and ability to exercise dominion and control over it. In the case of drugs, one must have an appreciable ability to guide the destiny of the drug.
AUTHORITIES:
United States v. Culpepper, 834 F.2d 879, 881 (10th Cir. 1987); United States v. Staten, 581 F.2d 878, 883 (D.C. Cir. 1978).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.2.2 [Power And Intent Is Not Enough To Establish Criminal Liability].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
5. Drugs, Controlled Substances: Payment For Drug Does Not Establish Possession
See THE SHELLOW COLLECTION: Possession Defined: Ownership Is Not Possession.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
6. Illegal Drugs: No Crime Of Aiding And Abetting Attempted Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Federal law does not define as a crime aiding and abetting an attempted possession of drugs. Accordingly, if all the government has proven is that some defendant aided and abetted the possession of marijuana by someone else, that defendant cannot be found guilty of attempted possession.
AUTHORITY:
United States v. Blankenship, 970 F.2d 283, 288 (7th Cir. 1992).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See generally NCJIC Chapter 64: Accomplice Liability (Aiding And Abetting, Accessory Before The Fact, Etc.).
See also generally NCJIC Chapter 66: Attempt.
See NCJIC 66.5.1 [Attempted Possession As Lesser Included Offense Of Possession For Sale Or Distribution].
See NCJIC 66.5.2 [Attempted Possession Of Controlled Substance: Defense Theory That Defendant Did Not Believe The Substance To Be A Controlled Substance].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See NCJIC 88.5 [Drugs, Controlled Substances: Attempted Possession].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
7. Ownership/Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Some persons who own marijuana may by virtue of such ownership also have sufficient dominion and control to be in possession of it. Others who own marijuana may not be proven to be in possession of it. None of the defendants in this case have been charged with ownership of marijuana.
SAMPLE INSTRUCTION # 2:
Possession is not the same as ownership. The mere possession of an automobile does not permit the inference that it is owned by the possessor.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.1 [Possession: Miscellaneous Issues And Defenses].
See also NCJIC 56.2 [Possession: Sufficiency Of Proof].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
8. Personal Use Does Not Equate With Conspiracy To Possess Contraband
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Evidence that __________ (name of defendant) _________ (conduct, e.g., smoked marijuana) or even that he attempted to __________ (conduct, e.g., cultivate marijuana) in (his/her) home is not evidence either that (he/she) conspired to possess nor attempted to possess the __________ (controlled substance) on ________ (date).
That is, merely because someone may have either (conduct, e.g., smoked or grown marijuana) __________ (controlled substance) is not proof that on a given date that person conspired to purchase __________ (controlled substance).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.1 [Possession: Miscellaneous Issues And Defenses].
See also NCJIC 56.2 [Possession: Sufficiency Of Proof].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
9. "Possession" Defined; Transitory Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
"Possession" means the defendant knowingly had the controlled substances at issue 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 knows the item is present, and the person intends to exercise control over the item.
AUTHORITIES:
Wis. JI-Criminal 920, modified.
SAMPLE INSTRUCTION # 2:
"Possession" means the defendant knowingly had the controlled substances at issue under her 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 knows the item is present, and the person intends to exercise control over the item. Mere momentary possession in the course of rejecting control over the item, or in rejecting possession of it, is not "possession" for purposes of this charge.
AUTHORITIES:
Wis. JI-Criminal 920, modified.
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 56: Possession.
See NCJIC 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
10. Mere Presence Of Controlled Substance Is Not Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
The mere presence of __________ (controlled substance) in or near a person's __________ (location, e.g, house, car) does not by itself constitute possession of that substance, within the meaning of the charge. Rather, you must decide whether you are persuaded beyond a reasonable doubt by all the evidence that there was in fact __________ (controlled substance) in the __________ (location, e.g, house, car), and that the defendant knew that there was __________ (controlled substance) in (his/her) __________ (location, e.g, house, car), and that (he/she) intended to exercise control over such __________ (controlled substance).
AUTHORITIES:
State ex rel. McCaffrey v. Shanks, 124 Wis. 2d 216, 369 N.W.2d 743, 754-55 (Ct. App. 1985); Kabat v. State, 76 Wis. 2d 224, 251 N.W.2d 38, 40-41 (1977); State v. Christel, 61 Wis. 2d 143, 159, 211 N.W.2d 801 (1973).
SAMPLE INSTRUCTION # 2:
The mere presence of __________ (controlled substance) in or near a person's __________ (location, e.g, house, car) does not by itself constitute possession of that substance, within the meaning of the charge. Rather, you must decide whether you are persuaded beyond a reasonable doubt by all the evidence that defendant knew that (he/she) had __________ (controlled substance) and it was not thrust upon (him/her), but rather that (he/she) intended to exercise control over the __________ (controlled substance).
AUTHORITIES:
State v. Christel, 61 Wis. 2d 143, 159, 211 N.W.2d 801 (1973); Kabat v. State, 76 Wis. 2d 224, 251 N.W.2d 38, 40-41 (1977); State ex rel. McCaffrey v. Shanks, 124 Wis. 2d 216, 369 N.W.2d 743, 754-55 (Ct. App. 1985).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.2.12 [Possession: Mere Presence Or Knowledge Not Sufficient].
See NCJIC 56.2.13 [Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
11. Mere Ownership Of Property Does Not Establish Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
The mere fact that one owns property in which contraband is allegedly found does not, without more, establish that one possesses such contraband.
AUTHORITY:
United States v. Matta, No. 82-CR-20 (E.D. Wis. 1982).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.2.5 [Possession: Ownership Or Occupancy Not Sufficient].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
12. Constructive Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
For you to find that the defendant "constructively possessed" contraband not in his actual, physical possession, you must find beyond a reasonable doubt that the defendant knew of the contraband and was in a position to exercise dominion and control over it.
AUTHORITIES:
United States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 1993).
SAMPLE INSTRUCTION # 2:
Constructive possession of a drug necessarily requires both dominion and control over the drug and knowledge of the drug's existence.
AUTHORITIES:
United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993); United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir. 1992).
SAMPLE INSTRUCTION # 3:
In order to prove the possession charged in Count _____ of the [information] [indictment], the government must prove beyond a reasonable doubt that __________ (name of defendant) had knowledge that the drug was in the car he was driving. Such knowledge is an essential element of constructive possession.
AUTHORITIES:
United States v. Brown, 3 F.3d 673, 682 (3d Cir. 1993), citing United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir. 1992) and United States v. Zeigler, 994 F.2d 845 (D.C. Cir. 1993); United States v. Onick, 889 F.2d 1425 (5th Cir. 1989).
SAMPLE INSTRUCTION # 4:
In order to find that the defendant was in constructive possession of the substances involved in this case, you must find beyond a reasonable doubt, first: that the substance was located in a place immediately accessible to the defendant; second, that the place was subject to the defendant's exclusive or joint dominion and control; third, you may find such constructive possession only where it is proven that the defendant had knowledge of the presence of the controlled substance in the place where it was located.
AUTHORITIES:
Ritacca v. Kenosha County Court, 91 Wis. 2d 72, 280 N.W.2d 751 (1979); Schmidt v. State, 77 Wis. 2d 370, 253 N.W.2d 204, 208 (1977).
SAMPLE INSTRUCTION # 5:
Possession, including constructive possession, implies a right -- not necessarily a legal right, but a right recognized by the relevant community, which may be an illegal community -- to control. Power to make off with someone else's property is not equivalent to a right to the property.
AUTHORITIES:
United States v. Ortega, 44 F.3d 505, 507 (7th Cir. 1995) (Posner, J.).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.2.2 [Power And Intent Is Not Enough To Establish Criminal Liability].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See also NCJIC 305.1.7.1 [Actual/Constructive Possession].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
13. Mere Proximity, Presence, Association Is Not Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Mere proximity or accessibility to contraband will not support a conclusion that an individual had knowing dominion and control over it, and thus will not alone support a finding that the individual possessed the contraband.
AUTHORITY:
United States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 1993).
SAMPLE INSTRUCTION # 2:
An individual's mere proximity to a drug, mere presence on the property where a drug is located, or mere association with the person who does control the drug or the property on which it is found is insufficient to support a finding that the individual possessed the drug. It is well established that the mere proximity of an individual to a drug does not, in itself, establish possession of the drug.
AUTHORITIES:
United States v. Windom, 19 F.3d 1190, 1200 (7th Cir. 1994); United States v. Brown, 3 F.3d 6793, 680 (3d Cir. 1993).
SAMPLE INSTRUCTION # 3:
It is the defendant's theory of this case that (he/she) did not conspire with anyone to violate the [state] [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 the defendant’s theory of the case creates a reasonable doubt as to (his/her) guilt, then you must acquit (him/her).
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Umentum, No. 75-CR-103 (E.D. Wis. 1976).
SAMPLE INSTRUCTION # 4:
The mere presence of a person at a place where __________ (controlled substance) is present or being consumed, even coupled with his knowledge of the presence of the __________ (controlled substance) and its accessibility to (him/her), is insufficient to constitute possession. The opportunity to possess, standing alone, does not establish possession.
AUTHORITY:
In The Interest of R.B., 108 Wis. 2d 494, 322 N.W.2d 502 (Ct. App. 1982).
SAMPLE INSTRUCTION # 5:
Mere proximity or accessibility to __________ (controlled substance) will not support a conclusion that an individual had knowing dominion and control over it, and thus will not alone support a finding that the individual possessed the __________ (controlled substance). It is well established that the mere presence in a residence from which the police recover __________ (controlled substance) does not, in itself, establish possession of the __________ (controlled substance).
AUTHORITIES:
United States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 1993); State v. R.B., 108 Wis. 2d 494, 322 N.W.2d 502 (Ct. App. 1982).
RELATED NCJIC MATERIALS:
See NCJIC 43.1 [Mere Association Insufficient For Criminal Liability].
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.2.12 [Possession: Mere Presence Or Knowledge Not Sufficient].
See NCJIC 56.2.13 [Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
14. Residency Does Not Establish Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
You may not conclude merely from the fact that a defendant lives in a particular house or apartment or spends considerable time there that he or she consequently possesses everything on the premises.
AUTHORITIES:
United States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 1993).
SAMPLE INSTRUCTION # 2:
Ordinarily, the law presumes that one who occupies a residence possesses all that is found within the residence. However, when the residence is occupied jointly, that is, where other persons share the occupancy of a residence or when still other persons have access to the residence, the possession presumption disappears.
You may not find that the defendant possessed controlled substances merely because those substances were found in a house which he jointly occupied with others, and to which still other people had access. This is especially true when the evidence discloses that the defendant had not been on the premises for some period of time prior to the seizure of the substances by law enforcement officials, for the law recognizes that other persons may have placed the substances in the residence without the defendant's knowledge.
You must find the defendant not guilty of possessing controlled substances [with intent to deliver] unless the prosecution proves beyond a reasonable doubt that the defendant had both actual knowledge of the presence of the substances and control over them.
When the prosecution relies upon circumstantial evidence to establish the defendant's knowledge, that is, that the defendant actually knew the substances were in the house, such evidence must do more than raise a suspicion that the defendant had such knowledge. The circumstantial evidence must exclude all probability that someone else could have placed the substances in the house during the defendant's absence and without (his/her) knowledge. Before you may find the defendant guilty on this sort of circumstantial evidence, you must unanimously find that every reasonable theory consistent with the defendant's lack of knowledge of the presence of the substance in the house has been disproven beyond a reasonable doubt. If you are unable to make such a finding, you must not return a verdict of guilty.
AUTHORITIES:
Solanov v. State, 426 N.E.2d 705 (Ind. App. 1981); Pier v. State, 400 N.E.2d 209 (Ind. App. 1980); People v. Simpson, 104 Mich. App. 731, 305 N.W.2d 249 (1980); Commonwealth v. Chenet, Pa. , 373 A.2d 1107 (1977); Moreland v. State, 133 Ga. App. 723, 212 S.E.2d 866 (1975); People v. Wolski, 27 Ill. App. 3d 526, 327 N.E.2d 308 (1975); Willis v. State, 320 So. 2d 823 (Fla. App. 1973); Griffin v. State, 276 So. 2d 191 (Fla. App. 1973); Osburn v. State, 497 P.2d 471 (Okla. Cir. 1972); State v. Haynes, 25 Ohio St. 2d 264, 267 N.E.2d 787 (1971); People v. Schriber, 34 A.D.2d 852, 310 N.Y.S.2d 551 aff'd 29 N.Y.2d 780, 327 N.Y.S.2d 68, 277 N.E.2d 187 (1971); Markman v. State, 210 So. 2d 486 (Fla. App. 1968); Frank v. State, 99 So. 2d 117 (Fla. App. 1967).
SAMPLE INSTRUCTION # 3:
A resident of a home does not possess __________ (controlled substance) that is owned by others merely because (he/she) is fully aware of the existence and location of the __________ (controlled substance) within the home. In addition to proving that the defendant knew of the __________’s (controlled substance) existence, the state also must prove beyond a reasonable doubt that the defendant in some manner actually exercised dominion and control over the __________ (controlled substance) or had the power and intention to exercise dominion and control over the __________ (controlled substance). If all the state has shown is that the defendant knew about the __________ (controlled substance), then you must find the defendant not guilty.
AUTHORITY:
United States v. Vasquez-Chan, 978 F.2d 546, 551 (9th Cir. 1992); United States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 1993); State v. R.B., 108 Wis. 2d 494, 322 N.W.2d 502 (Ct. App. 1982).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.2.2 [Power And Intent Is Not Enough To Establish Criminal Liability].
See NCJIC 56.2.4 [Possession: Access Alone Not Sufficient].
See NCJIC 56.2.5 [Possession: Ownership Or Occupancy Not Sufficient].
See NCJIC 56.2.7 [Possession: Premises Shared By More Than One Person].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
15. Knowledge Of And Proximity To Drug Insufficient To Support Finding Of Possession Without Power To Exercise Dominion And Control
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
A defendant's knowledge of and proximity to drugs is not enough to sustain a conviction for possession of the drugs if the evidence fails to support an inference that the defendant had the power to exercise dominion and control over the narcotic. The defendant cannot be convicted where (his/her) conduct was consistent with that of an innocent person residing in the house with no stake in the drug distribution activities that were taking place in the residence.
AUTHORITIES:
United States v. Brown, 3 F.3d 673, 682 (3d Cir. 1993), citing United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir. 1992) and United States v. Zeigler, 994 F.2d 845 (D.C. Cir. 1993).
SAMPLE INSTRUCTION # 2:
A defendant's knowledge of and proximity to a drug is not enough to sustain a conviction for possession of the drug if the evidence fails to establish beyond a reasonable doubt that the defendant had the power and intent to exercise dominion and control over the drug.
AUTHORITIES:
United States v. Brown, 3 F.3d 673, 682 (3d Cir. 1993), citing United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir. 1992); United States v. Zeigler, 994 F.2d 845 (D.C. Cir. 1993).
RELATED NCJIC MATERIALS:
See NCJIC 43.3 [Power And Intent Insufficient For Criminal Liability].
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.2.2 [Power And Intent Is Not Enough To Establish Criminal Liability].
See NCJIC 56.2.12 [Possession: Mere Presence Or Knowledge Not Sufficient].
See NCJIC 56.2.13 [Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
16. Possession As Physical Control
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Actual possession of a substance is synonymous with physical custody, control or dominion and occurs when a person has the substance in his physical possession, for example, in his hand or pocket.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.2.3 [Possession: Requirement Of Act Or Omission Resulting In The Defendant's Assertion Of Dominion And Control Over The Object].
See NCJIC 56.2.12 [Possession: Mere Presence Or Knowledge Not Sufficient].
See NCJIC 56.2.13 [Possession: Knowledge Required Of Both The Presence And Nature Of The Contraband].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
17. Joint Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
In order for the jury to find that the defendant jointly possessed a substance with someone else, it must unanimously find beyond a reasonable doubt that the defendant had such control over the person or persons that the defendant was in constructive possession, as I have defined that term, of the items physically possessed by the other. Alternatively, before the jury can find that the defendant was in joint constructive possession of a substance, it must unanimously find beyond a reasonable doubt that the defendant and the other person each had the ability and intention of exercising dominion and control over the substance.
AUTHORITIES:
See generally, Ritacca v. Kenosha County Court, 91 Wis. 2d 72, 280 N.W.2d 751 (1979); Curl v. State, 40 Wis. 2d 414, 162 N.W.2d 77 (1969); State v. Dodd, 28 Wis. 2d 643, 137 N.W.2d 465 (1965).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.2.6 [Possession: Joint Access Insufficient].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
18. Actual Possession And Constructive Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
One cannot possess, either actually or constructively, something he does not know exists.
AUTHORITY:
State v. Christel, 61 Wis.2d 143, 211 N.W.2d 801, 809 (1973).
SAMPLE INSTRUCTION # 2:
The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly had direct physical control over a thing, at a given time, is then in actual possession of it.
A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession of it.
An act or failure to act is "knowingly" done, if done voluntarily and intentionally, and not because of mistake or accident or other innocent reason.
AUTHORITIES:
First two paragraphs: Fifth Circuit Pattern Jury Instructions 1.31 [Possession] [formerly No. 8 (1983 Ed.)].
Third paragraph: United States v. DeLaCruz, 420 F.2d 1093, 1096 (7th Cir. 1970) (substance of instruction approved).
SAMPLE INSTRUCTION # 3:
The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over a thing, at a given time is in actual possession of it.
A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing, is in constructive possession of it.
The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint.
Before you can find that the defendant had possession of a controlled substance, you must be satisfied that the government has proved, beyond a reasonable doubt, either that the defendant actually possessed it alone or with others; or that there are facts and circumstances which indicate, beyond a reasonable doubt, the defendant's knowledge of, and care, custody, control, or management over the controlled substance, either alone or with others.
CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:
United States v. Napue, No. 84-CR-155 (N.D. Ill. 1985).
RELATED SHELLOW MATERIALS:
See also THE SHELLOW COLLECTION: Elements: Knowledge.
RELATED NCJIC MATERIALS:
See NCJIC Chapter 47: Knowledge.
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.1.9 [Constructive Possession: Use Of Phrase "Indirect Possession" To Avoid Juror Confusion].
See NCJIC 56.2 [Possession: Sufficiency Of Proof].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
19. Unwitting Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
Before you may find the defendant guilty, the state must prove beyond a reasonable doubt that __________ (name of defendant) knew (he/she) possessed __________ (controlled substance). There are two separate types of knowledge which the state must prove to establish the "guilty knowledge" that is required to convict __________ (name of defendant) of this crime.
First, the state must prove that __________’s (name of defendant) possession of the alleged __________ (controlled substance) was knowing and conscious as opposed to accidental, unwitting, or unknowing; that is, __________ (name of defendant) had to know that there was a ___________ (type of substance, e.g., white powdery substance, leafy green substance), as opposed to some other item, concealed in the ________ (where concealed, e.g., packages that (he/she) allegedly was carrying). If __________ (name of defendant) was unaware that (he/she) was carrying a ___________ (type of substance), then (he/she) did not have the required knowledge.
Second, the state must prove that __________ (name of defendant) also knew that the ___________ (type of substance) was, in fact,__________ (controlled substance).
Unless the state proves beyond a reasonable doubt both that __________ (name of defendant) knew that there was a ___________ (type of substance) in the package he was carrying, and that (he/she) knew the ___________ (type of substance) was, in fact, __________ (controlled substance), you must find __________ (name of defendant) not guilty.
AUTHORITY:
Wis. JI-Crim. 6000 at 3-4 (1981).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].
See NCJIC 56.3.4 [Unwitting Or Accidental Possession].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See NCJIC 88.4.3.2 [Drugs, Controlled Substances: Momentary, Innocent, Or Unwitting Possession].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
20. Person Who Brings Together Seller And Buyer Not In Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
One whose role is that of a finder, broker, a bringer together of seller and buyer, is not thereby guilty of constructive possession. Constructive possession requires the right or power to control.
AUTHORITIES:
United States v. Manzella, 791 F.2d 1263, 1266-67 (7th Cir. 1986) (Posner, J.).
SAMPLE INSTRUCTION # 2:
Telling a willing buyer of __________ (controlled substance) how to make contact with a willing seller does not necessarily imply an agreement between the seller and the information giver.
AUTHORITIES:
United States v. Hysohion, 448 F.2d 343, 347 (2d Cir. 1971), noted in United States v. Baker, 449 F.2d 845, 847 (7th Cir. 1974).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See NCJIC 56.1.7 [Possession: Duty To Define "Right To Control"].
See NCJIC 56.1.8 [Possession: Definition Of Control].
See NCJIC 56.2.10 [Possession: Participation In Drug Transaction Does Not Prove Possession Of Drugs Or Money Possessed By Others].
See NCJIC 64.6.7 [Buyer-Seller Relationship: Insufficient For Accomplice Liability].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
21. Jurisdiction And Possession
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________ (name of defendant) is charged with the possession of __________ (controlled substance) in the ________ (jurisdiction, e.g., Western District of Wisconsin). In order for the government to prove that __________ (name of defendant) either possessed this __________ (controlled substance) in the ________ (jurisdiction) or aided and abetted someone else's possession of this __________ (controlled substance) in that district, it must prove by a preponderance of the evidence that __________ (name of defendant) had the power to exercise dominion and control over the __________ (controlled substance) in the ________ (jurisdiction). If all that the government has proven is that __________ (name of defendant) had the power to exercise dominion and control over the __________ (controlled substance) at some other place, then it has not proven the charge in Count _____ and __________ (name of defendant) should be acquitted of that charge.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See generally NCJIC 257.10 [Territorial Jurisdiction].
See NCJIC 257.11.3 [Venue And Territorial Jurisdiction: Difference In Burden Of Proof].
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
22. Possession: Third Party Access
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION:
__________’s (name of defendant) theory of defense is that any __________ (controlled substance) [and drug paraphernalia] found in the __________ (name of third party) residence on _______ (date), was not (his/hers), and the prosecution has not proven beyond a reasonable doubt that the items found in (his/her) home were possessed by (him/her).
It is further his position that the prosecution did not prove that (he/she) knew of the existence of these items in the home and that (he/she) had the power and intention to exercise control over them and that one other person,__________ (name of third party), had full access to the home and the alleged __________ (controlled substance) which was found in it.
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See generally NCJIC 56.2 [Possession: Sufficiency Of Proof].
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
23. Constructive Possession: Defendant Setting Price Or Assuring Delivery
ALERT: Carefully review the Caveats and Disclaimers before using these materials.
SAMPLE INSTRUCTION # 1:
Constructive possession of a narcotic may be found only where a defendant has set the price of the sale or was able to assure delivery or had the final say as to the means of transfer. If he has not been proven to have been able to accomplish one of these, then such defendant has not had the constructive possession of the drug.
AUTHORITIES:
United States v. Steward, 451 F.2d 1203, 1206-1207 (2d Cir. 1971); United States v. Febre, 425 F.2d 107, 111 (2d Cir. 1970).
SAMPLE INSTRUCTION # 2:
Constructive possession of a narcotic drug may only be found when a defendant set the price for a batch of narcotics, had the final say as to means of transfer, or was able to assure delivery.
AUTHORITIES:
United States v. Jones, 308 F.2d 26, 31 (2d Cir. 1962) (en banc); United States v. Wilkes, 451 F.2d 938, 940-941 (2d Cir. 1971).
RELATED NCJIC MATERIALS:
See generally NCJIC Chapter 56: Possession.
See generally NCJIC Chapter 88: Drugs, Controlled Substances.
See NCJIC 88.4.3.4 [Drugs, Controlled Substances: Agreement Or Contract To Purchase: Not Possession].
See NCJIC 88.6.3 [Possession Of Drugs, Controlled Substances For Sale, Delivery Or Distribution: Defenses And Defense Theories].