4.21.841(a)(1)B Distribution of a Controlled Substance, 21 U.S.C. § 841(a)(1) See Statute

[Defendant] is accused of distributing [controlled substance] on or about [date]. It is against federal law to distribute, that is, to transfer [controlled substance] to another person. For you to find [defendant] guilty of this crime, you must be convinced that the government has proven each of the following things beyond a reasonable doubt:

First, that [defendant] on the date alleged transferred [controlled substance] to another person;

Second, that [he/she] knew that the substance was [controlled substance]; and

Third, that [defendant] acted intentionally, that is, that it was [his/her] conscious object to transfer the controlled substance to another person.

It is not necessary that [defendant] have benefitted in any way from the transfer.

If you find [defendant] guilty, you will also have to answer one or more questions concerning the quantity of the substance involved, which may affect the potential sentence.

Comment(s)

(1) The statute defines “distribute” as meaning “to deliver,” 21 U.S.C. § 802(11), which in turn is defined as meaning “the actual constructive or attempted transfer of a controlled substance, whether or not there exists an agency relationship.” § 802(8) (emphasis added). Therefore, distribution includes both selling and buying. United States v. Castro, 279 F.3d 30, 34 (1st Cir. 2002) (rejecting defendant’s argument that facilitating the purchase of drugs did not constitute distribution). However, the court may refuse to instruct on the meaning of the term “distribute” “because it is within the common understanding of jurors.” United States v. Acevedo, 842 F.2d 502, 506-07 (1st Cir. 1988).

(2) “[D]eliver[y] or transfer [of] possession of a controlled substance to another person” constitutes distribution regardless of whether the transferor has “any financial interest in the transaction.” United States v. Morales-Cartagena, 987 F.2d 849, 852 (1st Cir. 1993). Thus, courts are in broad agreement that the mere sharing of narcotics can support a distribution charge. See, e.g., United States v. Corral-Corral, 899 F.2d 927, 936 n.7 (10th Cir. 1990); United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir. 1979). Distribution, however, does not include “‘the passing of a drug between joint possessors who simultaneously acquired possession at the outset for their own use.’” United States v. Rush, 738 F.2d 497, 514 (1st Cir. 1984) (quoting United States v. Swiderski, 548 F.2d 445, 450-51 (2d Cir. 1977)) (overturning distribution conviction of husband and wife who jointly purchased and shared 4 grams of cocaine).

(3) “[I]ntent is an element of constructive possession, which ‘exists when a person “knowingly has the power and intention at a given time to exercise dominion and control over an object, either directly or through others.”’” United States v. Paredes-Rodriguez, 160 F.3d 49, 54 (1st Cir. 1998) (citations omitted).

(4) See Comment (2) to Instruction 4.21.841(a)(1) concerning instructions in enhanced penalty cases.