6th Cir. Pattern Crim. Jury Instr. 14.07C

(1) The defendant is charged in Count ____ of the indictment with [distributing/dispensing] [manufacturing] [name controlled substance]. If you find the defendant guilty of this charge, you will then be asked to determine whether this [distributing/dispensing] [manufacturing] offense resulted in [death] [serious bodily injury]. You will be provided with a special verdict form to answer this question.

(2) For you to find defendant guilty of [distributing/dispensing] [manufacturing] [name controlled substance] resulting in [death] [serious bodily injury], you must find that the government has proved each and every one of the following elements beyond a reasonable doubt:

(A) First, that [name of person injured/deceased] would not have [sustained serious bodily injury] [died] but for the use of that same [name controlled substance] [distributed/dispensed] [manufactured] by the defendant;

[(B) Second, the defendant was part of the of the distribution chain that placed the [name controlled substance] into the hands of [name of person injured/deceased].]

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

(A) But-for causation means that without using the controlled substance [distributed/dispensed] [manufactured] by the defendant, [name of person injured/deceased] would not have [sustained serious bodily injury] [died]. The government need not prove that [serious bodily injury] [death] was foreseeable to the defendant.

[(B) The term “serious bodily injury” means bodily injury which involves [insert at least one from the options below]

[a substantial risk of death] or

[protracted and obvious disfigurement] or

[protracted loss or impairment of the function of a bodily member, organ, or mental faculty]].

(4) If you find by unanimous agreement that the government has proved beyond a reasonable doubt that the [distributing/dispensing] [manufacturing] resulted in [death] [serious bodily injury], then please indicate this finding by checking that line on the verdict form.

Use Note

This instruction explains the requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, 133 S.Ct. 2151 (2013) in a prosecution for distributing or dispensing, or manufacturing, a controlled substance under § 841 when death or serious bodily injury results. In these cases, the committee recommends that the court give this instruction and use a special verdict form, provided below following the commentary.

Bracketed paragraph (2)(B) should be used if the defendant's liability for the offense of distributing or dispensing, or manufacturing, a controlled substance is based on being part of a conspiracy under Pinkerton, but if the defendant's liability for distributing or dispensing, or manufacturing, is based on his own actions, the court may omit paragraph (2)(B). This is discussed in the commentary below.

Bracketed paragraph (3)(B) defining serious bodily injury may be deleted if the question is not raised by the facts.

Like the instruction, the special verdict form may be edited depending on whether the facts of the case raise the issue of death or serious bodily injury.