4.21.841(a)(1)A Possession With Intent to Distribute a Controlled Substance,
21 U.S.C. § 841 (a) (1) See Statute
[Defendant] is accused of possessing [controlled substance] on or about [date] intending to distribute it to someone else. It is against federal law to have [controlled substance] in your possession with the intention of distributing it to someone else. 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 [defendant] on that date 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; and
Third, that [he/she] did so knowingly and intentionally.
It is not necessary for you to be convinced that [defendant] actually delivered the [controlled substance] to someone else, or that [he/she] made any money out of the transaction. It is enough for the government to prove, beyond a reasonable doubt, that [he/she] had in [his/her] possession what [he/she] knew was [controlled substance] and that [he/she] intended to transfer it or some of it to someone else.
[A person’s intent may be inferred from the surrounding circumstances. Intent to distribute may, for example, be inferred from a quantity of drugs larger than that needed for personal use. In other words, if you find that [defendant] possessed a quantity of [controlled substance]—more than that which would be needed for personal use—then you may infer that [defendant] intended to distribute [controlled substance]. The law does not require you to draw such an inference, but you may draw it.]
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.]
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.
(1) The enumeration of the elements of this crime is based upon United States v. Latham, 874 F.2d 852, 863 (1st Cir. 1989); see also United States v. Akinola, 985 F.2d 1105, 1109 (1st Cir. 1993).
(2) After Apprendi v. New Jersey, 530 U.S. 466 (2000), it will be necessary to get a verdict on quantity range if the government is seeking (and has appropriately charged) higher than the maximum penalties contained in the catchall penalty provision of 21 U.S.C. § 841 for the particular drug involved (20 years for substances with a cocaine base, 18 U.S.C. § 841(b)(1)(C), and 5 years for a marijuana substance, id. § 841(b)(1)(D)). See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001); United States v. Robinson, 241 F.3d 115, 119 (1st Cir. 2001); United States v. Caba, 241 F.3d 98, 101 (1st Cir. 2001). (The same holds true for the enhanced penalty for cases where death or serious bodily injury resulted. 21 U.S.C. § 841(b)(1)(C). The standards for the latter charge are discussed in United States v. Soler, 275 F.3d 146, 152-53 (1st Cir. 2002). Soler also discusses the standards for an enhancement case based upon nearness to a school under 21 U.S.C. § 860. Id. at 153-55.) But the First Circuit has held that even after Apprendi, quantity is not an element of the offense, and that the government needs “to prove only that the offense ‘involved’ a particular type and quantity of drug, not that the defendant knew that he was distributing that particular drug type and quantity.” United States v. Collazo-Aponte, 281 F.3d 320, 326 (1st Cir. 2002); accord Derman v. United States, No. 01-2545, 2002 WL 1610566, at *7 (1st Cir. July 25, 2002) (“in a drug conspiracy case, the jury should determine the existence vel non of the conspiracy as well as any facts about the conspiracy that will increase the possible penalty for the crime of conviction beyond the default statutory maximum; and the judge should determine, at sentencing, the particulars regarding the involvement of each participant in the conspiracy”) (footnote omitted). We suggest the following addition to the verdict form:
How much [specify controlled substance], in total, was involved? [check only one]
_____ at least [specify threshold quantity to qualify for penalties in 21 U.S.C. § 841(b)(1)(A)] of [specify controlled substance]
_____ at least [specify threshold quantity to qualify for penalties in § 841(b)(1)(B)] of [specify controlled substance]
_____ less than [specify threshold quantity to qualify for penalties in § 841(b)(1)(B)] of [specify controlled substance]
(3) The statutory penalty provisions applicable in a marijuana case are more complicated than those applicable in cases involving other controlled substances. Section 841(b)(1)(D), which would otherwise be the default penalty provision for a marijuana charge under 21 U.S.C. § 841(a), is explicitly limited by section 841(b)(4). 21 U.S.C. § 841(b)(1)(D) (“In the case of less than 50 kilograms of marihuana . . . such person shall, except as provided in paragraph (4) . . . of this subsection, be sentenced to a term of imprisonment of not more than 5 years. . . .”). Section 841(b)(4) provides that a person who distributes “a small amount of marihuana for no remuneration shall be treated as provided in section 844 [the section prohibiting simple possession].” Therefore, in accord with Apprendi v. New Jersey, 530 U.S. 466 (2000), any conviction under section 841 involving marijuana must also include a determination of the applicability of section 841(b)(4). See United States v. Lowe, 143 F. Supp. 2d 613 (S.D. W. Va. 2000) (discussing the applicability of section 841(b)(4) as the baseline penalty provision for section 841 marijuana cases); see, e.g., United States v. Miranda, 248 F.3d 434, 444-45 (5th Cir. 2001) (holding that the maximum sentence for conspiring to posses with the intent to distribute a measurable, but not specifically determined, amount of marijuana was governed by section 841(b)(4)). But see United States v. Duarte, 246 F.3d 56, 59 (1st Cir. 2001) (referring to section 841(b)(1)(D) as providing the “‘default statutory maximum’ . . . for a violation of 21 U.S.C. § 841(a)(1) involving marijuana,” without discussing section 841(b)(4)).
Additionally, one court has held that section 841(b)(4) applies only to distribution (not possession with intent to distribute) charges. United States v. Laakkonen, 149 F. Supp. 2d 315, 318-19 (W.D. Ky. 2001).
(4) “Apprendi applies only when the disputed ‘fact’ enlarges the applicable statutory maximum and the defendant's sentence exceeds the original maximum.” Caba, 241 F.3d at 101. It does not apply to mandatory minimum sentences, Harris v. United States, 122 S. Ct. 2406 (2002), and it is not necessary to get a specific jury finding with respect to “guideline [factual] findings (including, inter alia, drug weight calculations) that increase the defendant's sentence, but do not elevate the sentence to a point beyond the lowest applicable statutory maximum.” Caba, 241 F.3d at 101; accord United States v. Martinez-Medina, 279 F.3d 105, 122 (1st Cir. 2002) (“Apprendi does not apply to findings made for purposes of the sentencing guidelines, such as the court’s determination that the [defendants] were accountable for [several] murders.”).
(5) Quantity, see United States v. Roberts, 119 F.3d 1006, 1016-17 (1st Cir. 1997); United States v. Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992), or quantity and purity can support an inference of intent to distribute. See United States v. Bergodere, 40 F.3d 512, 518 (1st Cir. 1994). One ounce of cocaine, however, is not sufficient to support the inference. Latham, 874 F.2d at 862-63. Other indicia of intent to distribute are scales, firearms and large amounts of cash. United States v. Ford, 22 F.3d 374, 382-83 (1st Cir. 1994).
(6) The defendant’s intent to distribute must relate specifically to the controlled substance in his or her possession, not to “some unspecified amount of [controlled substance], that [he/she] did not currently possess, at some unspecified time in the future.” Latham, 874 F.2d at 861. However, the government need not prove that the defendant knew which particular controlled substance was involved. United States v. Hernandez, 218 F.3d 58, 65 (1st Cir. 2000); United States v. Kairouz, 751 F.2d 467, 468-69 (1st Cir. 1985) (affirming the instruction: “if defendant . . . ‘intend[ed] to distribute a controlled substance, it does not matter that . . . [he has] made a mistake about what controlled substance it happen[ed] to be’”) (alteration in original); see also United States v. Garcia-Rosa, 876 F.2d 209, 216 (1st Cir. 1989); United States v. Cheung, 836 F.2d 729, 731 (1st Cir. 1988). Similarly, the government is not required to prove that the defendant knew the specific weight or amount of the controlled substance involved. United States v. Collazo-Aponte, 281 F.3d 320, 325-26 (1st Cir. 2002).
(7) For a discussion on the issue of “possession,” see Akinola, 985 F.2d at 1109, Ocampo-Guarin, 968 F.2d at 1409-10, and United States v. Almonte, 952 F.2d 20, 23-24 (1st Cir. 1991). “[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). Inability to escape with the contraband does not prevent a defendant from satisfying the power-to-exercise-control part of constructive possession. United States v. Van Horn, 277 F.3d 48, 54-55 (1st Cir. 2002).