4.46.1903 Possessing a Controlled Substance On Board a Vessel Subject to

United States Jurisdiction With Intent to Distribute, 46 U.S.C. App. § 1903 See Statute

[Defendant] is charged with illegally possessing [controlled substance] while on board a vessel subject to United States jurisdiction, intending to distribute it to someone else. It is against federal law to have [controlled substance] in your possession while on board a vessel subject to United States jurisdiction, with the intention of distributing all or part of the [controlled substance] to someone else. I have determined that [name of vessel] was subject to United States jurisdiction on [date charged]. For you to find [defendant] guilty of this crime you must be convinced that the government has proven each of these things beyond a reasonable doubt:

First, that on the date charged [defendant] was on board [name of vessel] and at that time possessed [controlled substance], either actually or constructively;

Second, that [he/she] did so with a specific intent to distribute the [controlled substance] over which [he/she] had actual or constructive possession;

Third, that [he/she] did so knowingly and intentionally.

The term “possess” means to exercise authority, dominion or control over something. The law recognizes different kinds of possession.

[“Possession” includes both actual and constructive possession. A person who has direct physical control of something on or around his or her person is then in actual possession of it. A person who is not in actual possession, but who has both the power and the intention to exercise control over something is in constructive possession of it. Whenever I use the term “possession” in these instructions, I mean actual as well as constructive possession.]

[“Possession” [also] includes both sole possession and joint possession. If one person alone has actual or constructive possession, possession is sole. If two or more persons share actual or constructive possession, possession is joint. Whenever I have used the word “possession” in these instructions, I mean joint as well as sole possession.]

Comment(s)

(1) There is First Circuit caselaw dealing with jury instructions as to the jurisdictional part of the statute. See United States v. Saavedra, 250 F.3d 60, 64-65 (1st Cir. 2001) (defendant’s knowledge of jurisdiction not required); United States v. Santana-Rosa, 132 F.3d 860, 865 (1st Cir. 1998) (holding that the court must give an instruction defining customs waters). These cases, however, interpret the statute before its 1996 amendment, which added the following language:

Jurisdiction of the United States with respect to vessels subject to this chapter is not an element of any offense. All jurisdictional issues arising under this chapter are preliminary questions of law to be determined solely by the trial judge.

46 U.S.C. App. § 1903(f) (1996). The effect was “to remove from the jury and confide to the judge” this issue. United States v. Gonzalez, 311 F.3d 440, 443 (1st Cir. 2002).

(2) See Comment (2) to Instruction 4.18.841(a)(1) concerning instructions in enhanced penalty cases.