Pattern Criminal Jury Instructions of the CONTROLLED SUBSTANCES—CONSPIRACY 21 U.S.C. § 846

• Jurisdiction: United States
• Currency: Updated July 14, 2023
• Section: Pattern Criminal Jury Instructions
• Notes: Please refer to the Use Note following Instruction 2.19 (the general conspiracy instruction, 18 U.S.C. section 371). The fifth element is submitted to the jury under Apprendi v. New Jersey, 530 U.S. 466 (2000), where the statute imposes increased maximum penalties based on the quantity of the substance. See 21 U.S.C. § 841(b). Ordinarily, venue is not an issue. When it is an issue, it will be nec- essary to instruct that venue lies either in the jurisdiction in which the conspiratorial agreement was formed or in any jurisdiction in which an act in furtherance of the conspiracy was committed. Venue must be proved by a preponderance of the evidence, not beyond a reasonable doubt. United States v. Record, 873 F.2d 1363, 1366 (10th Cir. 1989). The agreement necessary for a conspiracy need not be explicit, but may be inferred from the circumstances. United States v. Rangel- Arreola, 991 F.2d 1519, 1522 (10th Cir. 1993). The government may prove a drug conspiracy entirely with circumstantial evidence. United States v. Mendoza-Salgado, 964 F.2d 993, 1006 (10th Cir. 1992). Govern- ment agents, including informers, cannot be conspirators because they cannot be considered parties to the illegal agreement. United States v. Leal, 921 F.3d 951, 959 (10th Cir. 2019).

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CONTROLLEDSUBSTANCES—CONSPIRACY

21 U.S.C. § 846

The defendant is charged in count ————— with a

violation of 21 U.S.C. section 846.

This law makes it a crime for anyone to conspire with

someone else to violate federal laws pertaining to controlled

substances. In this case, the defendant is charged with con-

spiracy to [describe the conspiracy alleged in the

indictment].

To find the defendant guilty of this crime you must be

convinced that the government has proved each of the fol-

lowing beyond a reasonable doubt:

First: two or more persons agreed to violate the federal

drug laws;

Second: the defendant knew the essential objective of the

conspiracy;

Third: the defendant knowingly and voluntarily in-

volved himself in the conspiracy; and

Fourth: therewasinterdependenceamongthe members

of the conspiracy.

[Fifth: the overall scope of the conspiracy involved at

least [name amount] of [name controlled substance].]

A conspiracy is an agreement between two or more

persons to accomplish an unlawful purpose. It is a kind of

“partnership in criminal purposes” in which each member

becomes the agent or partner of every other member. [The

evidence may show that some of the persons involved in the

alleged conspiracy are not on trial. This does not matter.

There is no requirement that all members of a conspiracybe

charged or tried together in one proceeding.]