Jury Instruction Case Facts Use Eleventh Circuit Pattern Jury

On September 5, 2007, Florida Highway Patrol Troopers observed a 1993 Chevrolet pick-up truck (a vehicle) speeding on the Florida Turnpike. Thereafter, the troopers pursued and stopped the vehicle
in which the Defendant Marylou Smith was the driver and Defendant Jose Sanchez was the passenger. Said stop was videotaped from the trooper’s vehicle. Defendant Smith produced a temporary Alabama
driver’s license and stated to the trooper that she did not own the vehicle and that a third person owned the vehicle. After the stop, the troopers recognized Defendant Smith from a prior stop
where a large amount of U.S. currency was retrieved. When asked by the troopers if she [Smith] had previously been stopped by them, Defendant Smith became nervous. Thereafter, Defendant Smith and
Defendant Sanchez gave inconsistent responses to the troopers’ questions. The troopers decided that further investigation was warranted and requested from Defendant Smith her consent to search the
vehicle. Defendant Smith gave consent orally to search the vehicle but refused to sign a written form. The troopers asked the Defendants to sit in the back seat of one of the trooper’s cars until
the completion of the search. Unbeknownst to the Defendants, the troopers activated a tape recorder located in the police car which recorded the Defendants’ pre-arrest and post arrest
conversations. Subsequently, within minutes, a trained narcotics dog [Pepe] came from one of the trooper’s vehicles and alerted the troopers to the long metal vent frame that runs parallel with the
windshield on the outside of the vehicle. There, in open view, beneath the vent frame, the troopers saw several packages, which were painted bright green. Defendant Sanchez’ had the same green
residue under his nails. Inside the vehicle, the troopers found tools, which the troopers used to remove the green packages from the vent frame of the vehicle. These packages contained
approximately 471.5 grams of crack cocaine. The defendants were arrested for violation of various offenses relating to trafficking in crack cocaine. Defendant Smith was given two traffic citations,
to wit: speeding and failure to display registration. Defendant Sanchez was given a citation for failure to wear of seat belt. On September 13, 2007, a federal grand jury in the Southern District
of Florida, in Miami-Dade County, returned a two count Indictment charging the defendants with conspiring to possess with the intent todistribute crack cocaine and with possession with the intent
to distribute crack cocaine. Defendants moved the Court to suppress all the evidence, including tape recorded conversations, because the Florida Highway Patrol troopers searched the vehicle
allegedly without probable cause or valid consent.
1 Does an “overt act” need to be alleged or proved pursuant to 21 U.S.C. §846? State a case in support of your answer.

2. Defendant Marylou Smith would argue that she was merely present. What case would support her position?

3. Is conspiracy to commit the crime the same as aiding and abetting in the commission of a crime? Cite a case in support of your positon Are there any Eleventh Circuit Court of Appeals cases that
support your position?

4. What are the elements of the crime pursuant to 21 U.S.C.§841(a)(1)?

5. What is another name for “crack cocaine?”

6. Defendant Marylou Smith asserts that she withdrew from the conspiracy. What case would you cite in support of her position.
7. The prosecutor would assert that Defendant Smith aided and abetted Defendant Sanchez What proposed jury instruction would s/he request the court to instruct the jury? What is its number and why?


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