The Shellow Collection: Specific Substance Instructions

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Drugs, Controlled Substances: Specific Substance Instructions

    1.    Cannabis Or Wild Tobacco
    2.    Poisonous Substance: Cannabis Indicia As Lesser Included
    3.    Alpha cocaine
    4.    Isomers Of Cocaine
    5.    Cocaine: Must Be What It’s Purported To Be
    6.    Heroin And Isomeric Forms Of Heroin
    7.    Substance Tested Only Non-Narcotic Isomer Of Heroin; Burden Of Proof
    8.    Amphetamine Salts Or Isomers
    9.    Difference Between Substance In Charging Document And Controlled Substance Act

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

1. Cannabis Or Wild Tobacco

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

SAMPLE INSTRUCTION # 1:

    Nicotiana glauca, also known as wild tobacco, according to the [testimony heard in this case] [dictionaries in evidence], was not classified as a controlled substance by Congress, and neither an agreement to possess this substance with intent to distribute it nor the actual possession or distribution constitutes a violation of the Federal Controlled Substances Act, the Act that I read to you a few moments ago which __________ (name of defendant) is charged with.

    According to the [testimony of ________] [dictionaries in evidence], the word "marijuana" means either: (1) Nicotiana glauca, a wild tobacco, or (2) Cannabis sativa L.

    If you have a reasonable doubt that the defendant [agreed to possess with intent to distribute] [distributed] [Cannabis sativa L, then you must find him not guilty of Count I; similarly, if you have a reasonable doubt that the defendant possessed with intent to distribute and did distribute Cannabis sativa L] [because the substance may have been nicotiana glauca instead], then you must find the defendant not guilty of Count II.

AUTHORITY:

United States v. Wornock, 595 F.2d 1121 (7th Cir.), cert. denied, 444 U.S. 834 (1979) [Drawn almost verbatim from jury instruction quoted approvingly in United States v. Wornock, 595 F.2d 1121, 1123 (7th Cir. 1979). Substantive changes made to reflect charge of distribution here, rather than charge of conspiracy to import in Wornock, and two counts in this case rather than one].

SAMPLE INSTRUCTION # 2:

Nicotiana Glauca, also known as wild tobacco, according to the definitions in the dictionaries in evidence, was not classified as a controlled substance by Congress and an agreement to import it is not a violation of the Federal Controlled Substances Act.

AUTHORITY:

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

SAMPLE INSTRUCTION # 3:

According to the dictionaries in evidence, the word marijuana means either 1) Nicotiana Glauca (wild tobacco), or 2) Cannabis Sativa L.

If you have a reasonable doubt that any defendant agreed to import Cannabis Sativa L., then you must find that defendant not guilty.

AUTHORITY:

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

RELATED SHELLOW MATERIALS:

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

RELATED NCJIC MATERIALS:

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.1.1 Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven.

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

2. Poisonous Substance: Cannabis Indicia As Lesser Included

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

SAMPLE INSTRUCTION:

    If you agree that the defendant,__________ (name of defendant), is not guilty of the charge in Count 1 or the charge in Count 2, or both, or if you cannot unanimously agree on a verdict, then you must go on to consider whether the government has proved another offense, the sale or delivery of cannabis indica, beyond a reasonable doubt.

    In order to sustain the charge of sale or delivery of cannabis indica, the government must prove the following propositions:

    First, that __________ (name of defendant) delivered a substance to another person;

    Second, that the substance was cannabis indica, which is one species of marijuana if it is a portion of the plant other than the mature stalk or sterilized seeds and contains tetrahydrocannabinol;

    Third, that __________ (name of defendant) knew the substance was some substance defined as a poison. It does not matter whether the defendant knew that the substance was cannabis indica in particular.

    __________ (name of defendant) followed the requirements of law for delivery of certain poisons. However, __________ (name of defendant) has not raised that defense. Accordingly, if you find from your consideration of all the evidence that each of these three propositions has been proved beyond a reasonable doubt, then you should find __________ (name of defendant) guilty.

    If, on the other hand, you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, then you should find __________ (name of defendant) not guilty.

AUTHORITIES:

21 USC 209; initial paragraph adapted from Seventh Circuit Federal Jury Instructions, Criminal 2.02 [Lesser Included Offense] (1999); portion of third element drawn from Seventh Circuit Federal Jury Instructions, Criminal, Title 21 Offenses 03 [Knowledge Of Identity Of Substance (21 USC 841(a)(1))]; but see United States v. Moore, 330 F. Supp. 684, 687 (E.D. Pa. 1970) (holding that § 209 applies only to regulate cannabis indica within China). Notwithstanding the placement of § 209 within Chapter 7 of Title 21, defendant disagrees with Moore. Section 209 appears clearly to be a statute of general application. Were it not, it is unclear why Congress would not have repealed this section and some of the others in that chapter.

RELATED SHELLOW MATERIALS:

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

RELATED NCJIC MATERIALS:

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.1.1 Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven.

See also generally NCJIC Volume 12: Lesser Offenses.

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

3. Alpha cocaine

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

SAMPLE INSTRUCTION:

I instruct you that only possession and distribution of cocaine and its optical or geometric isomers are covered by the statutes charged in this indictment. Alpha cocaine is neither an optical nor geometric isomer of cocaine and, accordingly, is not covered by the particular statutes which __________ (name of defendant) is charged with violating. Accordingly, a verdict of guilty cannot be returned against __________ (name of defendant) on those counts involving cocaine unless the prosecution has proven beyond a reasonable doubt that the substances tested by its forensic scientists were not alpha cocaine.

AUTHORITIES:

21 USC 801(17)(D); 21 C.F.R. 1300.01(b)(30)(iv).

RELATED SHELLOW MATERIALS:

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

RELATED NCJIC MATERIALS:

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.1.1 Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven.

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

4. Isomers Of Cocaine

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

SAMPLE INSTRUCTION # 1:

There are two aspects to defendant's theory of this case. The first is that the defendant did not know what was contained in the _______ (item e.g., wine bottles). The second is that the government did not prove that the substance contained in the _______ (item e.g., wine bottles) is such as is prohibited by Schedule II -- because defendant alleges that l-cocaine exists, and because it is his position that l-cocaine is not chemically equivalent to l-cocaine. If you conclude that the evidence you have heard on either or both of these theories raises a reasonable doubt as to defendant's guilt, you must find for defendant on both counts.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Vlasak, No. 75-184 (D.P.R. 1976).

SAMPLE INSTRUCTION # 2:

Within the term 1-cocaine I include the term 1-cocaine hydrochloride as I stated before, which is a salt of that isomer of cocaine which is unlawful. Similarly, within the term heroin, I include the term heroin hydrochloride, the salt of heroin.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).

SAMPLE INSTRUCTION # 3:

In Count I of this indictment the defendants are charged with a conspiracy to engage in transactions involving cocaine; in Count II they are charged with the transaction itself. Thus, although the government need not prove the identity of Government Exhibit 1 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 unlawful isomer of cocaine and to that extent the proof or lack of proof of identity of Government Exhibit 1 may be considered by you.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

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

SAMPLE INSTRUCTION # 4:

The government bears the burden of showing you, beyond a reasonable doubt, that the substances at issue here were either l-cocaine or its chemical equivalent.

AUTHORITIES:

United States v. Scott, 725 F.2d 43, 45 (4th Cir. 1984); United States v. Ross, 719 F.2d 615, 617-18 (2d Cir. 1983); United States v. Francesco, 725 F.2d 817, 821 (1st Cir. 1981); United States v. Posey, 647 F.2d 1048, 1053 (10th Cir. 1981); United States v. Arias, 639 F.2d 1183, 1185 (5th Cir. Unit B 1981); United States v. Luschen, 614 F.2d 1164, 1169 n.2 (8th Cir.), cert. denied, 446 U.S. 939 (1980); United States v. Haro-Espinosa, 619 F.2d 789, 795 (9th Cir. 1979); United States v. Hall, 552 F.2d 273, 275 (9th Cir. 1977); United States v. Orzechowski, 547 F.2d 978, 980 (7th Cir. 1976), cert. denied, 431 U.S. 906 (1977).

SAMPLE INSTRUCTION # 5:

The Court has taken judicial notice of the fact that there exist eight forms of cocaine and that the possession and delivery of only one of these, and its chemical equivalents, was unlawful under federal law at the times charged in this indictment. The only unlawful form of cocaine was levo cocaine, which is also known as 1-cocaine. Only 1-cocaine and its chemical equivalents were unlawful under federal law.

AUTHORITIES:

United States v. Ross, 719 F.2d 615, 617-18 (2d Cir. 1983); United States v. Arias, 639 F.2d 1183, 1185 (5th Cir. Unit B 1981); United States v. Orzechowski, 547 F.2d 978, 980 (7th Cir. 1976), cert. denied, 431 U.S. 906 (1977).

RELATED SHELLOW MATERIALS:

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

RELATED NCJIC MATERIALS:

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.1.1 Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven.

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

5. Cocaine: Must Be What It’s Purported To Be

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

SAMPLE INSTRUCTION # 1:

There are several forms of cocaine. Under federal law during the period of time covered by count ____ of this indictment, not all of the forms of cocaine were illegal. Thus, in order for the jury to render a verdict of guilty on count ____, it is necessary for the jury to find, beyond a reasonable doubt, not only did the defendant aid and abet the possession of cocaine with intent to deliver, but also that the cocaine which was possessed was the unlawful form of cocaine and not one of the lawful forms of cocaine.

AUTHORITIES:

United States v. Scott, 725 F.2d 43, 45 (4th Cir. 1984); United States v. Francesco, 725 F.2d 817, 821 (1st Cir. 1981); United States v. Ross, 719 F.2d 615, 617-18 (2d Cir. 1983); United States v. Posey, 647 F.2d 1048, 1053 (10th Cir. 1981); United States v. Arias, 639 F.2d 1183, 1185 (5th Cir. Unit B 1981); United States v. Haro-Espinosa, 619 F.2d 789, 795 (9th Cir. 1979); United States v. Luschen, 614 F.2d 1164, 1169 n.2 (8th Cir.), cert. denied, 446 U.S. 939 (1980); United States v. Hall, 552 F.2d 273, 275 (9th Cir. 1977); United States v. Orzechowski, 547 F.2d 978, 980 (7th Cir. 1976), cert. denied, 431 U.S. 906 (1977).

SAMPLE INSTRUCTION # 2:

Only levo-cocaine and its chemical equivalents were illegal under federal law during the times described in counts 1 of this indictment. Accordingly, before a verdict of guilty can be returned on count 1, it is necessary for the jury to conclude beyond a reasonable doubt that one of the objects of the conspiracy was the possession and distribution of levo-cocaine or its chemical equivalents.

AUTHORITIES:

SAMPLE INSTRUCTION # 3:

It is further __________ (name of defendant) theory of defense that the government failed to prove beyond a reasonable doubt that the substances it alleges were involved in Counts I and 3 were levo-cocaine or its chemical equivalent and not one of the lawful forms of cocaine. If the government has failed to prove that one of the objects of Count 1 was the possession and distribution of levo-cocaine or its chemical equivalent and that the substance possessed in Count 3 was levo-cocaine or its chemical equivalent, then you may only consider Count 1 as a conspiracy involving marijuana and the defendant must be acquitted of Count 3.

SAMPLE INSTRUCTION # 4:

    Although the indictment in count 1 charges a conspiracy to possess and distribute cocaine and marijuana, the defendant can be convicted of this offense if the jury finds beyond a reasonable doubt that the object of the conspiracy was the possession and delivery of either cocaine or marijuana.

    However, unlike most criminal cases, it is important for the Court to know which of these substances, if any, were proven to be the object of the alleged conspiracy. Further, it is not all forms of cocaine, but only levo cocaine or its chemical equivalent, which was unlawful during the time period when this conspiracy was alleged to exist.

    Accordingly, you will be given a special verdict in which you must place any finding that you have made beyond a reasonable doubt.

    If all that the government has proven is that the defendant engaged in transactions involving some form of cocaine, but did not prove that it was the levo form or the chemical equivalent of that form, then the government has not proven that the substance charged in the indictment was one of the objects of the conspiracy charged in count 1.

AUTHORITIES:

United States v. Scott, 725 F.2d 43, 45 (4th Cir. 1984); United States v. Ross, 719 F.2d 615, 617-18 (2d Cir. 1983); United States v. Francesco, 725 F.2d 817, 821 (1st Cir. 1981); United States v. Posey, 647 F.2d 1048, 1053 (10th Cir. 1981); United States v. Arias, 639 F.2d 1183, 1185 (5th Cir. Unit B 1981); United States v. Haro-Espinosa, 619 F.2d 789, 795 (9th Cir. 1979); United States v. Luschen, 614 F.2d 1164, 1169 n.2 (8th Cir.), cert. denied, 446 U.S. 939 (1980); United States v. Hall, 552 F.2d 273, 275 (9th Cir. 1977); United States v. Orzechowski, 547 F.2d 978, 980 (7th Cir. 1976), cert. denied, 431 U.S. 906 (1977).

RELATED SHELLOW MATERIALS:

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

RELATED NCJIC MATERIALS:

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.1.1 Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven.

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

6. Heroin And Isomeric Forms Of Heroin

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

SAMPLE INSTRUCTION # 1:

It is the defendant's theory of this case that the only isomeric form of heroin which has an addiction-forming or addiction-sustaining liability similar to morphine is that isomeric form which is derived from opium. It is further the defendant's theory of this case that the heroin which is the object of any conspiracy that the government has proven them to be members of is an isomeric form of heroin other than the form derived from opium.

The defendants have no burden of proof with respect to their theory of this case. In order to prove the charge contained in Count 1 of the indictment, it is the government's obligation to prove beyond a reasonable doubt that the heroin which is the object of the conspiracy is an isomeric form of heroin which is a narcotic drug.

SAMPLE INSTRUCTION # 2:

    The defendants cannot be convicted of the offenses charged in Counts ____ and ____ of the indictment unless the government proves beyond a reasonable doubt that they conspired to distribute and possess with intent to distribute in the case of Count ____, and import in the case of Count ____, an isomeric form of heroin that is a narcotic drug. The isomeric form of heroin that is derived from opium is a narcotic drug. If there are other isomeric forms of heroin which have an addiction-forming or addiction-sustaining liability similar to morphine, they too are narcotic drugs.

    There are only two ways that the government can meet this burden of proof that the heroin which is the object of the alleged conspiracies is a narcotic drug. The first is to prove beyond a reasonable doubt that the heroin is the isomeric form which is derived from opium. The second is to prove beyond a reasonable doubt that the heroin is another isomeric form which has an addiction-forming or addiction-sustaining liability similar to morphine. You may not speculate as to the form of heroin which is the object of the alleged conspiracies.

    If you have a reasonable doubt that the heroin which is the object of the alleged conspiracies was the isomeric form of heroin which is a narcotic drug, you must find the defendants not guilty of the charges contained in Counts ____ and ____of the indictment. Similarly, if all that the government has proven is that the substances which are the object of the alleged conspiracies charged in Counts ____ and ____were some form of heroin, without proving that they were either the isomeric form which is derived from opium or another isomeric form which has an addiction-forming or addiction-sustaining liability similar to morphine, then the government has not proven the charges contained in Counts ____ and ____.

    In order for an isomeric form of heroin other than the form derived from opium to have an addiction-forming or addiction-sustaining liability similar to morphine, it must be capable of creating the same degree of physical and psychological dependency as morphine can produce.

SAMPLE INSTRUCTION # 3:

Within the term 1-cocaine I include the term 1-cocaine hydrochloride as I stated before, which is a salt of that isomer of cocaine which is unlawful. Similarly, within the term heroin, I include the term heroin hydrochloride, the salt of heroin.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979).

SAMPLE INSTRUCTION # 4:

    The defendants are charged in this indictment with offenses involving heroin. The importation, possession and sale of d-heroin or pseudo-heroin is not prohibited by the sections under which this indictment is brought. If the evidence you have heard as to what the results would have been had the government performed its tests upon the other stereoisomers, creates in your mind a reasonable doubt that the substance tested was l-heroin then you must find the defendants not guilty of the substantive counts.

SAMPLE INSTRUCTION # 5:

    The indictment charges these defendants with offenses involving heroin. Not all of the isomers of heroin fall within the provisions of the Controlled Substances Act under which these defendants are charged. Only the optical isomers of heroin are included within this section. The non-optical, or positional, geometric or structural isomers of heroin are not included within the provisions of the Controlled Substances Act with which these defendants are charged.

SAMPLE INSTRUCTION # 6:

    In order for these defendants to be found guilty of the offenses charged in the indictment, the government must have proven beyond a reasonable doubt that the defendants [engaged in transactions and conspired to engage in transactions which involved] [ imported and conspired to import ] that form of heroin known as l-heroin or levo heroin, namely, that form of heroin which will rotate a beam of polarized light to the left.

    However, if the government has proven beyond a reasonable doubt that the substances involved were some form of heroin, but not proven whether it they were the left handed or right handed form, then the defendants are guilty of lesser-included offenses and should be found guilty of these crimes.

RELATED SHELLOW MATERIALS:

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

RELATED NCJIC MATERIALS:

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.1.1 Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven.

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

7. Substance Tested Only Non-Narcotic Isomer Of Heroin; Burden Of Proof

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

SAMPLE INSTRUCTION # 1:

The defendant cannot be convicted if all that has been proven by the government is that the substances analyzed were some isomer of heroin.

SAMPLE INSTRUCTION # 2:

The defendant is no burden of proving that the substances involved are isomeric forms of heroin which are non-narcotic and no inference may be drawn from the fact that the defendant's chemist did not test these substances himself. Merely because the defendant called a chemist as a witness does not impose upon him the duty of proving that the substances were lawful. At all times the burden remains on the government.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Orzechowski, No. 75-CR-83 (E.D. Wis., December, 1975).

RELATED SHELLOW MATERIALS:

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

RELATED NCJIC MATERIALS:

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.1.1 Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven.

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

8. Amphetamine Salts Or Isomers

RELATED SHELLOW MATERIALS:

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

See THE SHELLOW COLLECTION: Substance Testing/Identification Instructions – Tests For Particular Substance: Amphetamine.

RELATED NCJIC MATERIALS:

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.1.1 Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven.

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

9. Difference Between Substance In Charging Document And Controlled Substance Act

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

SAMPLE INSTRUCTION # 1:

Parenthetically, you will notice that the [complaint] [information] [indictment] states heroin. You should consider the indictment as if it charged l-heroin.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Hestnes, No. 76-CR-3 (W.D. Wis., October 25, 1976) (modified).

SAMPLE INSTRUCTION # 2:

Parenthetically, you will notice that the indictment states cocaine. You should consider the indictment as if it charged l-cocaine hydrochloride.

CASES WHERE THE ABOVE INSTRUCTION WAS GIVEN:

United States v. Hestnes, No. 76-CR-3 (W.D. Wis. 1976).

RELATED SHELLOW MATERIALS:

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

RELATED NCJIC MATERIALS:

See also generally NCJIC Chapter 40: Variance Between Pleading And Proof.

See generally NCJIC Chapter 88: Drugs, Controlled Substances.

See also NCJIC 88.1.1 Drugs, Controlled Substances: Controlled Substance: Defense Theory That Identity Of Controlled Substance Was Not Proven.

See also NCJIC 300.2.1 [Charging Variance: Instruction On Uncharged Theory Violates Notice/Due Process Principles And Right To Effective Assistance Of Counsel].

See also NCJIC 300.2.4 [Due Process/Notice: Variance Between Information And Proof At Trial].

See also NCJIC 300.2.5 [Due Process/Notice: Variance Between Indictment/Information And Proof At Trial -- Standard Of Prejudice].