9.17 CONTROLLED SUBSTANCE—ATTEMPTED POSSESSION WITH INTENT TO DISTRIBUTE
(21 U.S.C. §§ 841(a)(1) and 846)
The defendant is charged in [Count _______ of] the indictment with attempted possession of [specify controlled substance] with intent to distribute in violation of Sections 841(a)(1) and 846 of Title 21 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:
First, the defendant intended to possess [specify controlled substance] with the intent to distribute it to another person; and
Second, the defendant did something that was a substantial step toward committing the crime.
Mere preparation is not a substantial step toward committing the crime. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.
To "possess with the intent to distribute" means to possess with intent to deliver or transfer possession of a controlled substance to another person, with or without any financial interest in the transaction.
See Comment to Instructions 9.15 (Controlled Substance–Possession with Intent to Distribute) and 9.16 (Determining Amount of Controlled Substance). See United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir.2006) (citing United States v. Davis, 960 F.2d 820, 826-27 (9th Cir.1992)); United States v. Esquivel-Ortega, 484 F.3d 1221, 1228 (9th Cir.2007) (citing to United States v. Estrada-Macias, 218 F.3d 1064, 1066 (9th Cir.2000) (jury instruction requiring the government to prove that defendants knowingly associated themselves with the crime and were not mere spectators)).
Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime. United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir.2010).
Regarding cases involving a "controlled substance analogue" as it is defined in 21 U.S.C. § 802(32)(A), the Supreme Court held in McFadden v. United States, 135 S. Ct. 2298 (2015), that, in order to prove the knowledge element, the government must prove that either the defendant knew that the substance distributed is treated as a drug listed on the federal drug schedules—regardless of whether he knew the particular identity of the substance—or "that the defendant knew the specific analogue he was dealing with, even if he did not know its legal status as an analogue." Id. at 2305.