Saturday, December 11th, 2010

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.


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.

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