9.26 CONTROLLED SUBSTANCE— ATTEMPTED EMPLOYMENT OF MINOR TO VIOLATE DRUG LAWS
(21 U.S.C. §§ 841(a)(1), 846 and 861(a)(1))
The defendant is charged in [Count _______ of] the indictment with attempted employment of a minor to [specify drug law violation] in violation of Sections 841(a)(1), 846 and 861(a)(1) 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 [[hire] [use] [persuade] [coerce] [induce] [entice] [employ]] [name of minor] to [specify drug law violation and controlled substance];
Second, the defendant was at least eighteen years of age;
Third, [name of minor] was under the age of eighteen years; and
Fourth, 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 [hiring] [using] a minor to violate the drug laws. To constitute a substantial step, a defendant’s act or actions must demonstrate that the crime will take place unless interrupted by independent circumstances.
See Comment to Instruction 9.25 (Controlled Substance–Employment of Minor to Violate Drug Law).
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.