Instruction 7.810, Criminal Model Jury Instructions for Use in the District Court

UNLAWFULLY DISTRIBUTING MARIJUANA 1

G.L. c. 94C, § 32C

The defendant is charged with unlawfully distributing

(marijuana) (a product containing marijuana) to another.

To prove the defendant guilty of this offense, the

Commonwealth must prove three things beyond a reasonable doubt:

First: That the substance in question was (marijuana) (contained

marijuana);

Second: That the defendant:

[The Commonwealth must prove one or more of the following:] 2

(Any amount for remuneration 3) distributed (marijuana) (marijuana

concentrate) (a marijuana product) for money or something of value;

(Any amount after advertisement or promotion 4) distributed (marijuana)

(marijuana concentrate) (a marijuana product) which had been

advertised or promoted to the public;

1 There is a separate offense of furnishing marijuana to a person under the age of 21, punishable by up

to one year in the house of correction or a fine of no more than $2,000, or both. G.L. c. 94G, § 13(i). See

Instruction 7.815.

2 If the Commonwealth pursues more than one theory, the judge should consider whether a special

verdict form and unanimity instruction are required.

3

See G.L. c. 94G, § 7(a)(4).

4

See G.L. c. 94G, § 7(a)(4).

(An unlawful amount 5) distributed to another person more than (two

ounces of marijuana) (5 grams of marijuana concentrate);

and Third: That the defendant did so knowingly or intentionally.

To prove the first element, the Commonwealth must prove

beyond a reasonable doubt that the substance was (marijuana)

(marijuana concentrate) (a marijuana product). In determining

whether the material in question was in fact (marijuana) (marijuana

concentrate) (a marijuana product), you may consider any relevant

evidence that was presented.

To prove the second element, the Commonwealth must prove

beyond a reasonable doubt:

(Any amount for remuneration) that the defendant distributed any

amount of (marijuana) (marijuana concentrate) (a marijuana product)

for money or something of value and can be cash, credit, property, or

an agreement to do or not to do something.

(Any amount after advertisement or promotion) that the defendant distributed

(marijuana) (marijuana concentrate) (a marijuana product), the

5

See G.L. c. 94G, § 7(a)(4).

availability of which had been made known to the public by

advertisement or promotion. The Commonwealth is not required to

prove that the defendant received anything of value in return.

(An unlawful amount) that the defendant distributed to another person

more than (two ounces of marijuana) (5 grams of marijuana

concentrate). The Commonwealth is not required to prove that any

money or other compensation was involved. However, the

Commonwealth must prove beyond a reasonable doubt that what was

distributed weighed more than (one ounce) (five grams).

The term “distribute” means to deliver or transfer the

(marijuana) (marijuana concentrate) (a marijuana product) to another

person.

• If warranted by the evidence, continue with the supplemental instruction on joint and

simultaneous possession.

To prove the third element, the Commonwealth must prove that

the defendant distributed the (marijuana) (marijuana concentrate) (a

marijuana product) knowingly or intentionally.

• Instruction on “Knowledge” from Instruction 3.140, or the shorter versions below, if

appropriate.

In other words, the defendant must have acted consciously,

voluntarily and purposely, and not because of ignorance, mistake or

accident. We often must decide from the actions of others what they

knew or what they intended. You are to decide what the defendant

knew or intended from the evidence, together with any reasonable

inferences that you choose to draw from it.

If the Commonwealth proved every element beyond a reasonable

doubt, you should return a verdict of guilty. If the Commonwealth

failed to prove any element beyond a reasonable doubt, you must

return a verdict of not guilty.

SUPPLEMENTAL INSTRUCTIONS

Simultaneous and Joint Acquisition of Marijuana

Where two or more people at the outset simultaneously and

jointly acquire possession of a drug for their own use intending only

to share it together, the crime is possession of marijuana, not

distributing marijuana to another.

See Commonwealth v. Carrillo, 483 Mass. 269 (2019); Commonwealth v. Johnson, 413 Mass.

598, 604 (1992) (distinguishing between “circumstances where a defendant facilitates a transfer

of drugs from a seller to a buyer,” which can constitute the crime of distribution even if the

defendant intends to share some of the drug with the buyer, and “the passing of a drug between

joint possessors who simultaneously acquire possession at the outset for their own use,” which

does not constitute distribution).