9.22 CONTROLLED SUBSTANCE—ATTEMPTED DISTRIBUTION TO PERSON UNDER 21 YEARS
(21 U.S.C. §§ 841(a)(1), 846 and 859)
The defendant is charged in [Count _______ of] the indictment with attempted distribution of [specify controlled substance] to a person under the age of twenty-one years in violation of Sections 841(a)(1), 846 and 859 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 distribute [specify controlled substance] to [name of underage person];
Second, the defendant knew that it was [specify controlled substance] or some other prohibited drug;
Third, the defendant was at least eighteen years of age;
Fourth, [name of underage person] was under the age of twenty-one years; and
Fifth, the defendant did something that was a substantial step toward committing the crime.
Mere preparation is not a substantial step toward the commission of the crime of distribution of [specify controlled substance] to a person under the age of twenty-one years. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.
"Distribution" means delivery or transfer of possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.
See Comment to Instructions 9.15 (Controlled Substance–Possession with Intent to Distribute), 9.16 (Determining Amount of Controlled Substance) and 9.21 (Controlled Substance–Distribution to Person Under 21 Years).
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.