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9.16 Determining Amount of Controlled Substance

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9.16 DETERMINING AMOUNT OF CONTROLLED SUBSTANCE 

If you find the defendant guilty of the charge in [Count _______ of] the indictment, you are then to determine whether the government proved beyond a reasonable doubt that the amount of [specify controlled substance] equaled or exceeded [certain weights] [insert specific threshold weight]. Your determination of weight must not include the weight of any packaging material. Your decision as to weight must be unanimous. 

The government does not have to prove that the defendant knew the quantity of [specify controlled substance]. 

Comment 

When a drug conspiracy is charged, the jury may infer the agreed upon drug amount based on the conduct of the conspirators, but may not speculate as to the amount. See United States v. Navarrette-Aguilar, 813 F.3d 785, 794 (9th Cir.2015) ("Express agreement is not required; rather, agreement may be inferred from conduct.") 

While quantity and drug type are not elements of controlled substance offenses, a jury must determine those facts before a sentencing enhancement based upon drug type or quantity can be applied. The Ninth Circuit has held, however, that the Government need not prove that a defendant knew either the controlled substance type or quantity in order for the enhancement to apply. United States v. Jefferson, 791 F.3d 1013, 1019 (9th Cir.2015); but see United States v. Hunt, 656 F.3d 906 (9th Cir.2011) (discussing effect on sentencing of knowledge of type of drug in attempted possession with intent to distribute case). If the charged controlled substances are not in evidence, the court should only allow the jury to use comparison drugs that are from the defendant’s activity or a conspiracy in which the defendant was involved. United States v. Lemus, 815 F.3d 583, 591 (9th Cir.2016) (stating that purity of controlled substances not connected to defendant could not be used to estimate purity of defendant’s drugs). 

When it is necessary to determine an amount of controlled substance, use this instruction with Instruction 9.15 (Controlled Substance–Possession with Intent to Distribute). The following verdict form might be considered in such a circumstance, using the item for the substance in question: 

SUGGESTED VERDICT FORM

  

1. We, the Jury, find the defendant [name] NOT GUILTY or GUILTY (circle one) as charged in [Count ___ of] the indictment.

 If you find the defendant not guilty, do not consider paragraph 2 below, and your presiding juror should sign and date the form. If you find the defendant guilty as charged, proceed to paragraph 2 below.

 2. We, the Jury, having found the defendant guilty of the offense charged in [Count

 _______ of] the indictment, further unanimously find that [he] [she] [[distributed] [possessed with intent to distribute] [conspired to possess with intent to distribute]] [specify controlled substance] in the amount shown (place an X in the appropriate box):

 

[Marijuana–

(i) Weighing 1000 kilograms or more [ ]

(ii) Weighing at least 100 kilograms but less than 1000 kilograms [ ]

(iii) Weighing less than 100 kilograms [ ]]

 

[Cocaine–

(i) Weighing 5 kilograms or more [ ]

(ii) Weighing at least 500 grams but less than 5 kilograms [ ]

(iii) Weighing less than 500 grams [ ]]

 

[Cocaine base ("crack" cocaine)--

(i) Weighing 50 grams or more [ ]

(ii) Weighing at least 5 grams but less than 50 grams [ ]

(iii) Weighing less than 5 grams [ ]]

 

[A mixture and/or substance with a detectible amount of Methamphetamine–

(i) Weighing 500 grams or more [ ]

(ii) Weighing at least 50 grams but less than 500 grams [ ]

(iii) Weighing less than 50 grams [ ]]

 

[Pure Methamphetamine–

(i) Weighing 50 grams or more [ ]

(ii) Weighing at least 5 grams but less than 50 grams [ ]

(iii) Weighing less than 5 grams [ ]]

  

DATED:__________________ ____________________

 

PRESIDING JUROR 

 

Approved 6/2016