What You Don’t Know Can Hurt You

United States v. Andino, No. 09-4694-cr (2d Cir. December 3, 2010) (Kearse, Calabresi, Wesley, CJJ)

In 2008, customs officials intercepted a package containing cocaine addressed to “Andino Jose” at an address in the Bronx. After a controlled delivery to that address, the recipient called defendant Andino, who picked up the package and brought it to an adjacent building, where he left it unopened.

Customs agents then placed him under arrest, and Andino admitted that he had been paid to pick up the package and transport it. He said that he knew the package contained drugs, but believed it contained marijuana, not cocaine.

At Andino’s trial, the government sought a jury instruction stating that the government would need to prove only that Andino knew the package contained a controlled substance - any controlled substance - and not specifically cocaine. Andino, on his part, wanted a charge requiring the government to prove knowledge of both drug type and quantity. Before the court could resolve the charge issue, the question came up again in Andino’s Rule 29 motion. Ultimately, the court charged the jury that the government had to prove, first, the existence of a conspiracy to violate those “laws which make it illegal to distribute or possess with intent to distribute a controlled substance, namely cocaine,” and, second, that Andino was a member of the conspiracy.

The jury convicted him of conspiring to distribute or possess with intent to distribute cocaine, but found that the conspiracy involved less than 500 grams.

Andino pursued on appeal the same issue he raised in the district court: that the government was required to prove a cocaine-specific scienter. The court disagreed and held that “in order to satisfy the scienter element, the government was required to prove only that Andino agreed to traffic in a controlled substance.” It affirmed Andino's conviction.

Title 21 U.S.C. § 841(a) makes it a crime to traffic in “a controlled substance.” Section 841(b) prescribes maximum and minimum penalties depending on the type and quantity of the controlled substance involved in the offense. Thus, under § 841(a), the “government does not have to prove that the defendant knew the specific nature and amount of the controlled substance.” Section "841's scienter requirement is not type-specific.”

But, Andino was convicted of a narcotics conspiracy, not the substantive offense. The conspiracy statute, 21 U.S.C. § 846 subjects drug conspirators to the “same penalties as those prescribed” for the offense that is the object of the conspiracy. This case thus poses the question whether this “statutory framework" requires the government to prove that a conspiracy defendant had specific knowledge of the type and quantity of the drugs involved in the conspiracy.

To the parties, the circuit’s precedents on the issue have been confusing: as they characterized them, some have held that the statute required only proof of intent to distribute any controlled substance, while others have held that the government must at least prove that a particular type and quantity were reasonably foreseeable to the defendant. But here, the circuit wiped this all away, holding that, “in context, there are no inconsistencies in the prior holdings.”

The court then announced a new way of looking at these cases: Rather, “all of our cases accord with the rule that the government need not prove scienter as to drug type or quantity when a defendant personally and directly participates in a drug transaction underlying a conspiracy charge.” And that is the rule that applies here: “In cases like the present one, where the defendant personally and directly participated in the drug transaction underlying the conspiracy charge, the government need not prove that the defendant had knowledge of either drug type or quantity.”

Alternatively, Andino argued that the government committed itself to proving cocaine-specific knowledge by indicting him on cocaine-specific charges and insisting in its statements to the district court that it wanted a cocaine specific conviction. But all the law requires is that the government actually prove that the drug in the indictment was the one involved in the conspiracy. It does not also require proof of a type-specific scienter. Here, neither the indictment nor the government’s statements at trial committed itself to proving that Andino intended to distribute cocaine.

Comment

All this decision really does it replace one confusing legal standard with another. Now there is a new, and apparently unprecedented, distinction between drug conspiracy defendants who “personally and directly participated” in the transaction and those whose participation was “peripheral.” For the first group, there is no type-specific scienter requirement, but for the second group there is.

Huh? Who is going decide whether a defendant is “peripheral” and who is not - the judge or the jury - because it sounds like there might be an Apprendi issue on that fact. And what are the relevant standards? Worse still, how is the jury going to understand the court’s instructions when the “peripheral” defendant is on trial with the “personal and direct” participants, and the jury is told that defendants in the same conspiracy are subject to different scienter requirements? What a mess!

One can surmise that the court thinks that it has helpfully closed the door to scienter litigation in future drug conspiracy cases. It should have remembered that when one door closes another door opens. Now the courts are going to have to sift through endless iterations of “I was merely peripheral, not a personal and direct participant” claims, and all of the attendant legal desiderata that will ensue. This should keep us all entertained for the next few years, though.

CASH AS CACHE CAN

United States v. Jones, No. 05-5879-cr (2d Cir. June 24, 2008) (Leval, Cabranes, Raggi, CJJ)

In 2004, Jones was present in a “gatehouse” - an apartment used solely for the purpose of selling drugs - when Rochester police executed a search warrant. The officers found, inter alia, twenty-two grams of crack residue and $883 in cash hidden in the apartment. Jones admitted “selling a little.” Despite this admission, the jury convicted him only of simple crack possession.

At sentencing, the court held him accountable for possessing forty-seven grams of crack. This comprised the twenty-two grams of crack residue, plus an estimated twenty-five additional grams, which was based on the probable amount that Jones had sold to realize the $883.

The Appeal

Drug Quantity

On appeal, Jones argued, primarily, that it was unreasonable for the court to translate the money into drugs for the purposes of calculating drug quantity under the sentencing suidelines, an issue that, surprisingly, the court had never before addressed in a precedential opinion. It did so here, however, and affirmed.

The court joined eight other circuits to conclude that where the sentencing court finds by a preponderance of the evidence that seized currency is the proceeds of drug trafficking, it may “consider the market price for the drugs in which the defendant trafficked in determining the drug quantity represented by that currency.” Here, there was no error in the district court’s findings that: (1) Jones possessed the money; (2) the money was drug money, and (3) that, based on the price an informant had recently paid for crack from that same apartment, the $883 would have purchased about twenty-five grams.

Kimbrough to the Rescue

The court also held, however, that the district court committed a procedural error by apparently treating the guidelines for crack cocaine as presumptively reasonable, without recognizing its discretion to reject the notorious 100 to one ratio. Although the record was somewhat ambiguous, and the sentencing occurred before Rita, Gall and Kimbrough were decided, the court of appeals gave Jones the benefit of the doubt, and vacated the sentence.

Comment

This is a great decision, filled with unusually strong language about the sentencing court’s discretion in general and the crack cocaine guidelines in particular. Put it on your summer reading list!

Another Fine Meth

United States v. Tran, No. 05-5644-cr (2d Cir. March 10, 2008) (Sack, Sotomayor, Hall, CJJ)

Defendant Tran was stopped by customs officers while crossing the border from Canada, ostensibly to go to a casino in New York. Customs agents found several bags of pills hidden in the interior roof lining of his rented car, but Tran repeatedly denied knowing that the drugs were there.

There were more than 40,000 pills, weighing more than 10 kilograms. A chemical analysis of 29 of the pills revealed that they contained ecstasy (in concentrations ranging from 15 to 28%) and d-methamphetamine (in concentrations ranging from 5.6 to 6.9%). At trial, a DEA chemist testified that these tests accurately reflected the amount and percentage of the drugs in all of the pills.

Tran testified, and explained that he did not know that there were drugs in the car. He was convicted, and sentenced to 235 months’ imprisonment.

The Jury Charge on Knowledge

In its charge on knowledge, the district court largely followed Sand, except that it instructed that, where a defendant is the “sole occupant of an apartment,” it would be “reasonable to conclude that” he “knew about the items in [that] apartment.” It went on to explain that a defendant’s “behavior” such as “[n]ervousness in the presence of drugs[,] or flight” from the scene “may also indicate knowledge.”

On appeal, Tran challenged these instructions, claiming - inaccurately - that the court charged that the jury could reasonably infer knowledge from sole occupancy of a vehicle. The appellate court pointed out Tran’s error, then refused to review the actual instruction given, since Tran did not challenge it. In a footnote the court chided both his counsel for making “material misrepresentation[s] of the record” (on this point and another), and the government, for failing to point out the errors.

Tran did, however, challenge the language about nervousness in the presence of drugs, but the circuit affirmed. “Even where drugs are hidden and therefore not immediately visible to the occupant or others, the possibility of discovery may cause an individual with knowledge of the drugs to respond with nervousness to a law enforcement officer’s presence.” The court noted that there might be a “stronger claim of error” where a court instructs that “nervousness alone” is a sufficient basis for finding knowledge, but the charge as a whole here did not convey this message. It gave examples of indicators of knowledge, including nervousness, and said that they were “neither exhaustive nor . . . conclusive.”

Sufficiency of the Evidence

The court also held that the evidence of knowledge was legally sufficient. While agreeing that “sole occupancy of a vehicle cannot alone suffice to prove knowledge of contraband found hidden in the vehicle,” here there was more. The government introduced evidence of “nervousness," in the agents’ testimony about Tran’s conduct when stopped, and of “suspicious circumstances,” such as Tran’s traveling without directions to a place he had never been, and his doing so without toiletries or a change of clothes. Finally, by testifying, Tran forfeited his right to have the sufficiency of the evidence determined on the government’s case alone.

Tran also challenged the sufficiency of the evidence that the pills contained 500 grams or more of methamphetamine, claiming that the chemist’s sample was too small. The court disagreed, noting that “sampling is a permissible method of proof,” and that the chemist had opined that all of the pills contained the same substances in approximately the same proportions.