5th Cir. Pattern Jury Instr. (Criminal) 2.95B

21 U.S.C. §§ 802(32)(A), 813(a), 841(a)(1)

Definition of Controlled Substance Analogue

Count(s) _____ of the indictment involves a substance alleged to be a “controlled substance

analogue.” As that term is used in Count(s) ____, the term “controlled substance analogue” means

a substance that:

1. Has a chemical structure substantially similar to that of a controlled substance listed in

Schedule I or II of the Controlled Substances Act, and

2. Either:

a. Has a stimulant, depressant, or hallucinogenic effect on the central nervous

system that is substantially similar to or greater than the stimulant, depressant,

or hallucinogenic effect on the central nervous system of a controlled substance

listed in Schedule I or II of the Controlled Substances Act, or

b. With respect to a particular defendant, the substance was represented by the

defendant as having, or intended by the defendant as having, a stimulant,

depressant, or hallucinogenic effect on the central nervous system that is

substantially similar to or gr eater than the stimulant, depressant, or

hallucinogenic effect on the central nervous system of a controlled substance

listed in Schedule I or II of the Controlled Substances Act.

The term “substantially similar” is defined as the term is used in everyday language.

“Substantially similar” does not mean “exactly the same.” If two substances ’ chemical structures

were exactly the same, the substance in question would no longer be an “analogue,” but instead

would be the same substance listed in Schedule I or II.

Title 21, United States Code, Section 813(a), provides that a controlled substance analogue,

to the extent it is intended for human consumption, is treated as a controlled substance listed in

Schedule I for the purposes of federal law.

Charge(s) in the Indictment

Title 21, United States Code, Section 841(a)(1), makes it a crime for anyone knowingly or

intentionally to possess a controlled substance with intent to distribute it.

Count _____ charges the defendant(s) _____________ ( name the defendant(s) ) with

possessing with intent to distribute a controlled substance analogue _____________ ( name the

controlled substance analogue).

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For you to find the defendant guilty of this crime, you must be convinced that the

government has proved each of the following beyond a reasonable doubt:

First: That the defendant knowingly possessed a controlled substance analogue;

Second: That the substance was in fact __________ (name controlled substance analogue);

Third: That _________ (name controlled substance analogue) was a controlled substance

analogue, as I have defined that term;

Fourth: That the defendant knew that the substance was a controlled substance analogue;

Fifth: That the defendant knew that the substance was intended for human consumption;

and

Sixth: That the defendant possessed the substance with the intent to distribute it.

The government can prove that a defendant knew that a substance was in fact a controlled

substance analogue in one of two ways. First, the government can prove that a defendant knew

that the substance was controlled under the federal drug laws —that is, one actually listed on the

federal drug schedules or treated as such by operation of the Analogue Act—even if the defendant

did not know the particular identity of the substance . Second, the government can prove that a

defendant knew the characteristics of the substance that make it a controlled substance analogue.

As I have explained to you, the Analogue Act defines a “controlled substance analogue”

by its features:

(1) as a substance the chemical structure of which is substantially similar to the chemical

structure of a controlled substance in Schedule I or II; and

(2) which has a stimulant, depressant, or hallucinogenic effect on the central nervous

system that is substantially similar to or greater than the effect of a controlled substance in

Schedule I or II; or which is represented or intended by the defendant to have that effect

with respect to a particular person.

A defendant need not know of the existence of the Analogue Act to know that he [she] was

dealing with a controlled substance.

The term “human consumption” means ingestion, injection, inhalation, absorption, or other

introduction into the body of a person by whatever means, including, but not limited to swallowing,

snorting, smoking, implantation, or skin contact.

You may consider the following factors in determining whether the defendant knew that a

controlled substance analogue was intended for human consumption:

(1) The marketing, advertising, and labeling of the substance.

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(2) The known efficacy or usefulness of the substance for the marketed, advertised, or

labeled purpose.

(3) The difference between the price at which the substance is sold and the price at which

the substance is purported to be or advertised as is normally sold.

(4) The diversion of the substance from legitimate channels and the clandestine

importation, manufacture, or distribution of the substance.

(5) Whether the defendant knew or should have known the substance was intended to be

consumed by injection, inhalation, ingestion, or any other immediate means.

(6) Any controlled substance analogue that is manufactured, formulated, sold, distributed,

or marketed with the intent to avoid the provisions of existing drug laws.

Evidence that a substance was not marketed, advertised, or labeled for human consumption

is not sufficient, by itself, to establish that the defendant did not know that the substance was

intended for human consumption.

To “possess with intent to distribute” simply means to possess with intent to deliver or

transfer possession of a controlled substance analogue to another person, with or without any

financial interest in the transaction.