6th Cir. Pattern Crim. Jury Instr. 14.02A

(1) The defendant is charged with the crime of distributing [name controlled substance]. [Name controlled substance] is a controlled substance. For you to find the defendant guilty of this crime, you must find that the government has proved each and every one of the following elements beyond a reasonable doubt:

(A) The defendant knowingly [or intentionally] distributed [name controlled substance]; and

(B) That the defendant knew at the time of distribution that the substance was a controlled substance.

(2) Now I will give you more detailed instructions on some of these terms.

(A) The term “distribute” means the defendant delivered or transferred a controlled substance. [The term distribute includes the actual, constructive, or attempted transfer of a controlled substance.] [The term distribute includes the sale of a controlled substance.]

(B) To prove that the defendant “knowingly” distributed the [name controlled substance], the defendant did not have to know that the substance was [name controlled substance]. It is enough that the defendant knew that it was some kind of controlled substance. Further, the defendant did not have to know how much [name controlled substance] he distributed. It is enough that the defendant knew that he distributed some quantity of a controlled substance.

(3) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.

Use Note

This instruction covers simple distributing of a controlled substance. If the defendant is a practitioner, use Inst. 14.02B Dispensing or Distribution of a Controlled Substance by a Practitioner.

If the charges include increased penalties based on the amount of the controlled substance, see also Inst. 14.07A Unanimity Required: Determining Amount of Controlled Substance (§ 841). If the conduct charged includes distributing with death or serious bodily injury resulting, see also Instruction 14.07C Unanimity Required: Determining Whether Death or Serious Bodily Injury Resulted.

If the first bracketed sentence in paragraph (2)(A) is given, the court should further define the terms actual, constructive, or attempted transfer. The terms actual and constructive are defined in the context of possession in Instructions 2.10 and 2.10A. The term attempt is defined in Instruction 5.01.

Committee Commentary Instruction 14.02A

(current through May 29, 2026)

Title 21 U.S.C. § 841(a)(1) provides that except as authorized by that subchapter, “[I]t shall be unlawful for any person knowingly or intentionally-- (1) to . . . distribute . . . a controlled substance . . . .”

The list of elements in paragraph (1) is adapted from United States v. Harris, 293 F.3d 970, 974 (6th Cir. 2002).

In paragraph (1), the second sentence recognizes that the court determines whether the substance the defendant is charged with possessing falls within the definition of a controlled substance under 21 U.S.C. § 812.

In paragraph (1)(A), the requirement that the defendant “knowingly [or intentionally]” distributed a controlled substance is based on the statute and Sixth Circuit case law. The instruction requires a mens rea of knowingly, and then offers in brackets the option of adding an alternative mens rea of intentionally. As noted above, the statute states that the defendant must “knowingly or intentionally” distribute a controlled substance. However, as noted in the commentary to Instruction 14.01 on possession with intent to distribute, the Sixth Circuit often omits the optional term intentionally from the list of elements for that crime. Based on these cases construing the same statute, the instruction for distribution uses the term knowingly, and then provides the phrase “or intentionally” in brackets as an option for inclusion based on the language in § 841(a) and for cases where the government used that term in the indictment.

In paragraph (1)(B), the language requiring the defendant to know at the time of distribution that the substance was a controlled substance is based on Harris, supra and United States v. Gibbs, 182 F.3d 408 (6th Cir. 1999).

The definition of “distribute” in paragraph (2)(A) is based on several sources. The term “distribute” is defined as “to deliver . . . a controlled substance.” § 802(11). The terms “deliver” and “delivery” are defined as “the actual, constructive, or attempted transfer of a controlled substance . . . .” § 802(8). In United States v. Vincent, 20 F.3d 229, 233 (6th Cir. 1994), the court used the term deliver and cited § 802(11). The first bracketed sentence is drawn from § 802(8), quoted supra. The second bracketed sentence, stating that distribution includes the sale of a controlled substance, is based on United States v. Robbs, 75 F. App’x 425, 431 (6th Cir. 2003) (unpublished).

Paragraph (2)(B), which states that to act “knowingly,” the defendant is not required to know the type or quantity of controlled substance involved, is based on United States v. Villarce, 323 F.3d 435, 439 (6th Cir. 2003) (quoting United States v. Garcia, 252 F.3d 838, 844 (6th Cir. 2001)). Knowledge that the defendant distributed “some type of controlled substance” is sufficient. United States v. Stapleton, 297 F. App’x 413, 426 (6th Cir. 2008) (unpublished) (citing Villarce, supra). Also, knowledge that the defendant distributed “some quantity” of the controlled substance is sufficient. Villarce, supra at 438 (italics omitted). This authority was not overruled by Alleyne v. United States, 133 S. Ct. 2151 (2013). United States v. Dado, 759 F.3d 550, 571 (6th Cir. 2014).

Knowledge need not be proved directly. Pattern Instruction 2.08 Inferring Required Mental State states this principle and should be given in appropriate cases. In addition, Pattern Instruction 2.09 Deliberate Ignorance explains one approach to proving knowledge under § 841(a). See, e.g., United States v. Stapleton, 297 F. App’x 413, 427-28 (6th Cir. 2008) (unpublished). The Sixth Circuit has identified particular circumstances the jury may consider and the inferences it may draw regarding the defendant’s knowing distribution of the controlled substance. This issue often arises in the context of the crime of possession with intent to distribute. For that crime, the Sixth Circuit frequently cites the quantity of drugs as a basis for inferring intent to distribute. See, e.g., United States v. Hill, 142 F.3d 305, 311 (6th Cir. 1998); United States United States v. Phibbs, 999 F.2d 1053, 1065-66 (6th Cir. 1993); United States v. Giles, 536 F.2d 136, 141 (6th Cir. 1976). The estimated street value is also relevant, see Hill, supra; United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995); United States v. Vincent, 20 F.3d 229, 233 (6th Cir. 1994); and United States v. Dotson, 871 F.2d 1318, 1323 (6th Cir. 1989), vacated in part on other grounds, 895 F.2d 263 (6th Cir. 1990). The purity of the drugs may be considered, see Vincent, supra. The manner in which the controlled substance was packaged was approved in United States v. Coffee, 434 F.3d 887, 897 (6th Cir. 2006) and Dotson, supra. The presence or absence of a large amount of cash is relevant, see United States v. Stewart, 69 F. App’x 213, 216 (6th Cir. 2003) (unpublished) and United States v. Wade, 1991 WL 158674, 1991 U.S. App Lexis 19418 at *5 (6th Cir. 1991) (unpublished). The presence or absence of weapons may be considered, see Coffee, supra, as may the presence or absence of equipment used for the sale of drugs, see Coffee, supra; Hill, supra (noting presence of a scale, a blender, currency, razor blades and packaging materials); Vincent, supra (noting presence of hand scales suitable for weighing and measuring marijuana, growing lamps and a book describing how to grow marijuana); and Dotson, supra. In United States v. White, 932 F.2d 588, 590 (6th Cir. 1991), the court reversed a conviction for possession with intent to distribute based on, inter alia, insufficient evidence to support an inference of intent to distribute.

The offense of simple distribution covered in Inst. 14.02A is a lesser included offense of distribution when death or serious bodily injury results covered in Inst. 14.07C. See Burrage v. United States, 134 S. Ct. 881, 887 & note 3 (2014).