12.10 Controlled Substance—Distribution in or Near School (21 U.S.C. §§ 841(a)(1), 860)

            The defendant is charged in [Count _______ of] the indictment with distribution of [specify controlled substance] in, on or within 1,000 feet of the [schoolyard] [campus] of a [school] [college] [university] in violation of Sections 841(a)(1) and 860 of Title 21 of the United States Code.  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 knowingly distributed [specify controlled substance] to another person;

            Second, the defendant knew that it was [specify controlled substance] or some other federally controlled substance; and

            Third, the distribution took place in, on or within 1,000 feet of the [schoolyard] [campus] of [name of school].

            “Distribution” means delivery or transfer of possession of [specify controlled substance] to another person, with or without any financial interest in that transaction.

Comment

            See Comment to Instructions 12.1 (Controlled Substance—Possession with Intent to Distribute) and 12.2 (Determining Amount of Controlled Substance).

            The defendant’s specific knowledge of the proximity of a school is not an element of the offense.  United States v. Pitts,908 F.2d 458, 461 (9th Cir. 1990).  Distance is measured by a straight line.  United States v. Watson, 887 F.2d 980, 981 (9th Cir. 1989).

            Section 860 applies not only to schools, but also to playgrounds and public housing facilities.  In addition, it applies to youth centers, public swimming pools and video arcades; as to these locations, the distribution must have occurred within a 100-foot radius (as opposed to a 1,000-foot radius).  The instruction should be revised as necessary to match the facts of the case.

            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, 576 U.S. 186 (2015), that, 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 194-95.  With respect to the definition of “controlled substance analogue” as meaning “a substance . . . (i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II,” 21 U.S.C. § 802(32)(A)(i), substances are “substantially similar” for purposes of the statute if he two chemicals “share a common core of identical chemical structural features and that the subset of differences between the two chemicals does not make a difference in the substance’s ‘relevant characteristics’” United States v. Galecki, 89F.4th 713, 731 (9th Cir. 2023) (quoting United States v. Roberts, 363 F.3d 118, 124 (2d Cir. 2004)).

Revised March 2024